Re: O (Appeal: Costs) – Costs Orders in the Family Court


Obtaining an Order to receive reimbursement for your costs in Family cases is quite rare. There are some key factors which the Family Court will consider when a Costs Order is requested which I shall explore in this short article.

What are Costs in Family Matters?

Costs include legal fees such as instructing Barristers and other representatives, preparing documents, and seeking advice and guidance about your position, rights and responsibilities, and administrative fees such as obtaining copy documents and making an application or submitting an appeal.

The usual rule is that each Party (person in the proceedings) should pay their own costs. However, the Court has discretion to award Costs (choose a different method to cover these expenses). The Court can direct that one Party pays all or part of the other Party’s costs and there are some rules about when a judge can consider this.

The facts in this case:

This was an application to award costs (to make one party pay the other’s costs) in respect of a case which reached appeal stage in the High Court.

The sum of money related to costs incurred before the Appellant obtained legal aid and was for £1,220. The Court was asked to determine whether the Respondent should pay the Appellant’s costs.

The Law and Legal Guidance

The power to award costs is discretionary Section 51(a)(b) Senior Courts Act 1981, and the most important factor when determining whether an award should be made is the welfare of the children involved Section 1(1) Children Act 1989.

The Civil Procedure Rules (CPR) provide guidance on what must be considered, including:

  1. The conduct of the parties;
  2. Whether a party has been successful in full or in part in its case; and
  3. Whether any offers have been made (which the court can consider)

In Family proceedings, the general rule is that where children are involved, there will be no order for costs (each party will pay their own expenses) unless one or more parties have behaved unreasonably or in a reprehensible manner. See the commentary in (Re T (Children) [2012] UKSC 36 at [44] which was further echoed in Re S (A Child) [2015] UKSC 20).

What factors will the Court consider when deciding to make a Costs Order?

The Court has discretion to entertain the possibility of making an Order, and when it is asked to do so, the key factors include:

  • Whether the order for costs will reduce the money available to meet the family’s needs;
  • Whether making an order for costs will make the relationship worse for the parties and children;
  • Whether a party has acted unreasonably to incur their costs;
  • Whether a party has acted reprehensibly; and
  • Other circumstances which the court may take into account when deciding to grant an Order on a case-by-case basis

Ultimately, the Court will assess the parties’ reprehensible and/or unreasonable behaviour as the test to consider making an Order for Costs, applying the above factors in their reasoning. Courts are not obliged to make a Costs Order and will only do so if they are satisfied that the welfare of the children will not be materially adversely affected.

The Decision

The Court held that the Parties’ conduct was not unreasonable, even though there were delays and allegations of attempted compromises. In addition, considering the modest financial resources of both parties, any Costs Order would have a material impact on the children’s welfare. There was no Order for Costs in this case.

This decision is a good example which shows that unreasonable and/or reprehensible behaviour underpinned by the general position of safeguarding children’s welfare, are the guiding principles that Courts will factor in when considering whether to award a Costs Order.

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