Resisting a Child Arrangements Appeal Is Not “Exceptional” Conduct: The Court of Appeal Reaffirms the No-Costs Norm in Children Proceedings

1. Introduction

M, Re (A Child: Costs) [2026] EWCA Civ 381 concerns a parental private law dispute under the Children Act 1989 about arrangements for a five-year-old child, M. The mother successfully appealed to a Family Court judge against a final shared-care order made by lay justices. Although the judge refused to award the mother her costs of the magistrates’ hearing, she ordered the father to pay the mother’s appeal costs (summarily assessed at £32,723.50 plus VAT).

The father appealed that costs order to the Court of Appeal. The central issue was whether the father’s conduct in resisting the mother’s appeal (and pursuing a respondent’s notice/cross-appeal) amounted to the kind of “reprehensible or unreasonable behaviour” that can justify departure from the well-established practice of making no order as to costs in children proceedings—particularly on appeal where parties may be expected to “take stock”.

2. Summary of the Judgment

The Court of Appeal allowed the father’s appeal. It held that the Family Court judge, while correctly directing herself as to the law, erred in principle by awarding the mother the costs of the appeal. The Court of Appeal discharged the costs order and substituted no order for costs.

The court held that the factors relied on to characterise the father’s appeal conduct as “unreasonable”—including the perceived strength of the mother’s appeal, the father’s respondent’s notice/cross-appeal, alleged failure to “take stock”, and a pre-appeal costs warning letter—were insufficient to justify departure from the general rule. In particular, the court cautioned against “being wise after the event” when evaluating whether it was unreasonable to resist an appeal in child welfare litigation.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

Re E (Children: costs) [2025] EWCA Civ 183, [2025] 1 WLR 2150

The judgment began from the modern appellate encapsulation of the “no order” practice, quoted from Peter Jackson LJ: costs orders remain available but are generally reserved for “exceptional circumstances”, including “reprehensible or unreasonable behaviour”. This case operationalises that statement by stressing that losing (even on a ‘powerful’ appeal) is not itself unreasonable conduct.

Pringle v Nervo [2026] EWCA Civ 266 (“Pringle”)

The Court of Appeal described the costs framework in children cases as “well established and uncontroversial” (as stated in Pringle). M, Re complements Pringle by illustrating the risks of satellite costs litigation and reaffirming that courts should be slow to entertain costs debates where the alleged “unreasonableness” is essentially robust participation in welfare litigation.

In re T (Children) (Care Proceedings: Costs) (CAFCASS and another intervening) [2012] UKSC 36, [2012] 1 WLR 2281 (“Re T”)

Although Re T is a public law authority, it underpins the cross-jurisdictional principle that costs in children cases are not determined by ordinary “winner/loser” logic. The judgment uses Re T as part of the established foundation: the discretion is wide, but the normative restraint is principled.

In re S (A Child) (Access to Justice Foundation intervening) [2015] UKSC 20, [2015] 1 WLR 1631 (“Re S”)

Re S supplies the central rationale for the general rule: children proceedings are partly inquisitorial, the “winner” should be the child, and costs orders can chill participation and damage post-litigation co-operation. The Court of Appeal relied heavily on Lady Hale’s discussion, including Re S at [29] on appeals and “taking stock”. Crucially, M, Re clarifies that “taking stock” does not mean a party acts unreasonably merely because they continue to resist an appeal that later succeeds—particularly where welfare evaluation, inquisitorial features, and expert evidence create litigation uncertainty.

Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317

Quoted via Re S, Wilson J’s “classic explanation” is treated as a continuing lodestar: avoid deterring those with a proper interest in the child and avoid entrenching adversarial “winner/loser” dynamics. The Court of Appeal used this to conclude that the same underlying considerations applied to the appeal costs as to first instance costs, absent truly distinct misconduct.

In re M (A Child) [2009] EWCA Civ 311

This case is invoked (via Re S) to explain why appeal conduct can differ from first instance conduct: on appeal, findings and reasons are known and parties can “take stock”. M, Re accepts that principle but limits its reach: it is a factor relevant to assessing reasonableness, not a shortcut to costs whenever a party loses on appeal.

Three Rivers District Council and others v Bank of England (No 6) [2006] EWHC 816 (Comm), [2006] 5 Costs LR 714

Raised below in relation to indemnity costs and “outside the norm”. While indemnity issues fell away once the liability order was set aside, the citation highlights a recurring tension: what is the “norm” in children proceedings. The Court of Appeal’s outcome reinforces that, in this field, the true norm is no order, making it harder to justify indemnity (or any) costs absent clear litigation misconduct.

3.2 Legal Reasoning

1. The doctrinal framework: The court emphasised the interaction between FPR Part 28 and CPR Part 44. FPR 28.2 disapplies the CPR “costs follow the event” starting point, but imports CPR 44.2(4)–(5), keeping conduct central. The discretion remains broad (“as it thinks just”), but it is exercised against a strong practice-based restraint in child welfare disputes.
2. No hindsight inflation of “unreasonableness”: The court held it was not enough that the mother’s appeal was “powerful” or ultimately successful. In welfare litigation—partly inquisitorial, with expert evidence and non-party interests (the child)—it is often legitimate for a parent to test or defend an outcome without being branded unreasonable merely because the appeal succeeds.
3. Cross-appeal/respondent’s notice was not inconsistent or abusive: The judge below criticised the father for challenging the magistrates’ reasons while also defending the order. The Court of Appeal rejected that as unfair: responsive respondent’s notices are commonplace, parties may plead alternatives, and it was “incumbent” on the father to raise points so the appellate court could adjudicate “in the round”.
4. “Taking stock” was not concretely explained or satisfied by outcome alone: The judge below concluded that what was reasonable below became unreasonable on appeal, but the Court of Appeal found no adequate articulation of why that transition occurred here. The reasoning was viewed as too dependent on hindsight and insufficiently anchored to identifiable litigation misconduct.
5. Costs-warning correspondence carries limited weight in children cases: The father’s solicitors’ letter threatening a costs application if the mother’s appeal failed was described as, at worst, an “inept (though familiar) tactical manoeuvre”. The court held that “routine tit-for-tat” reasoning has no place where the general rule is no order for costs, and the letter could not justify departing from that rule.
6. Consistency between first instance and appeal costs absent new misconduct: A decisive structural point: since the judge had already found the father’s conduct at first instance not unreasonable (including his stance about retaining the March hearing and his acceptance of the magistrates’ course), those matters could not be repackaged to justify appeal costs. Once those are excluded, the remaining appeal-related factors were not weighty enough to cross the “exceptional/unreasonable” threshold.

3.3 Impact

• Higher practical threshold for costs on children appeals: The decision tightens the application of the “unreasonable conduct” exception, signalling that resisting an appeal—even a strong one—will rarely suffice without clearer misconduct (e.g., bad faith, harassment, deliberate procedural abuse, dishonesty, or plainly untenable positions maintained for improper purposes).
• Limits on “take stock” arguments: Parties seeking costs on appeal will likely need to show more than “they should have known they would lose”. Courts are reminded to avoid hindsight and to recognise the distinctive uncertainty and welfare focus of children litigation.
• Discouragement of satellite litigation: Peter Jackson LJ’s concurring remarks explicitly frame this case (and Pringle) as cautionary examples. The judgment strengthens judicial willingness to hold the line on no order to prevent disproportionate, welfare-damaging costs wars.
• Clarification on respondent’s notices: The decision protects orthodox use of a respondent’s notice/cross-appeal in children cases and reduces the risk that pleading alternatives will be labelled “inconsistent” misconduct for costs purposes.

4. Complex Concepts Simplified

“No order as to costs” in children cases

The usual outcome is that each party pays their own legal costs, because the dispute concerns the child’s welfare and the court does not want to deter participation or poison future co-parenting by treating one parent as a “loser”.

FPR 28.1 vs CPR 44 (“costs follow the event”)

In ordinary civil litigation, the loser usually pays. In family children proceedings, that presumption is disapplied; the court instead makes whatever order is “just”, with a strong practice of making none unless conduct is exceptional.

“Unreasonable” or “reprehensible” litigation conduct

Conduct that goes beyond merely being wrong: for example, pursuing hopeless points for improper reasons, abusing procedure, or acting in a way that unfairly increases costs. M, Re confirms that losing an appeal, by itself, is not enough.

“Taking stock” on appeal

After a first decision, parties know the findings and reasons and may reassess. But M, Re makes clear that “taking stock” is not a rule that the losing party on appeal automatically acted unreasonably by continuing to contest the case.

Respondent’s notice / cross-appeal

A mechanism allowing a respondent to argue additional reasons to uphold (or vary) the decision below. Using it to advance alternative arguments is commonly legitimate and not inherently inconsistent or abusive.

Indemnity basis vs standard basis

Indemnity costs are more generous to the receiving party and are usually reserved for conduct “outside the norm”. In children cases, the “norm” is generally no order for costs at all, which makes indemnity awards particularly exceptional.

5. Conclusion

M, Re (A Child: Costs) [2026] EWCA Civ 381 is a strong reaffirmation that in children proceedings—including appeals—costs orders remain exceptional and must be justified by clearly identified unreasonable or reprehensible litigation conduct, not by outcome, rhetoric about a “powerful appeal”, or tactical costs correspondence.

The judgment reinforces three practical takeaways: (1) courts must resist hindsight when judging reasonableness on appeal; (2) orthodox respondent’s notices and alternative arguments are not, without more, misconduct; and (3) to discourage welfare-sapping satellite litigation, the default position of no order as to costs should be maintained unless truly exceptional behaviour is shown.