J (Children)

Factual and Procedural Background

This appeal concerns the proper judicial approach to an application for costs by one parent against the other following a bespoke fact-finding hearing within contact proceedings. The hearing involved serious allegations of domestic violence made by the mother against the father, which were largely found proved by the district judge. The mother appealed against the district judge's refusal to order the father to pay her costs of the fact-finding hearing. The circuit judge dismissed the mother's appeal and ordered her to pay the father's costs of the appeal. The parents were formerly married, with two children, and the proceedings arose after the mother refused to allow the father unsupervised contact due to concerns about domestic violence. The fact-finding hearing was held to determine the veracity of the mother's allegations. The district judge found most of the mother's allegations proved, including violence towards the mother and limited violence towards the older child. Despite this, the district judge refused to make a costs order. The mother appealed this decision to the circuit judge, who upheld the refusal. The current appeal challenges the circuit judge's decision.

Legal Issues Presented

1. What is the proper approach of the court to an application for costs by one parent against the other at the conclusion of a bespoke fact-finding hearing within contact proceedings under the Children Act 1989?
2. Whether the district judge and circuit judge correctly exercised their discretion in refusing to order costs against the father despite the fact-finding hearing establishing the mother's serious allegations of domestic violence.
3. Whether the nature of a fact-finding hearing, distinct from the overall contact proceedings, justifies a different approach to costs.

Arguments of the Parties

Appellant's Arguments

• The mother argued that the fact-finding hearing should be considered separately from the overall contact proceedings for the purposes of costs.
• She submitted that the hearing involved serious allegations which had been largely proved and that she should be entitled to costs for that hearing.
• She relied on the principle that the hearing was bespoke and its costs referable solely to her allegations against the father, thus differentiating it from usual Children Act proceedings where costs orders are rare.
• She cited the case Re T (Order for Costs) to demonstrate that orders for costs in Children Act proceedings are sometimes appropriate, particularly in fact-finding hearings.

Respondent's Arguments

• The father contended it was very unusual to make an order for costs in Children Act proceedings.
• He argued the fact-finding hearing was part of his overall application for contact and that some of the mother's allegations had not been established.
• He maintained that his conduct at the hearing was not irrational and that the district judge properly exercised his discretion.
• He distinguished the present case from Re T, emphasizing that the mother’s conduct in Re T was irrational, which was not the case here.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re T (Order for Costs) [2005] EWCA Civ 311, [2005] 2 FLR 681	Illustrates that costs orders can be appropriate in Children Act proceedings, particularly where a party acts unreasonably or irrationally prolongs litigation.	The circuit judge relied on Re T to support the general proposition that costs orders are unusual in Children Act proceedings but distinguished the present case because the father's conduct was not irrational.
London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569	Explains why costs orders are generally unusual in children cases to avoid discouraging proper participation and cooperation, except where conduct is reprehensible or unreasonable.	The appellate judge invoked this to emphasize the general reluctance to make costs orders in children proceedings, but noted exceptions apply where conduct is unreasonable or costs relate to a separate, serious fact-finding hearing.

Court's Reasoning and Analysis

The court began by acknowledging the general principle that costs orders are rare in proceedings under the Children Act 1989 to avoid deterring parties from participating in matters concerning child welfare. However, the court recognized that the fact-finding hearing was a bespoke and separate inquiry focused exclusively on serious allegations of domestic violence, including violence towards the children, which justified a distinct approach to costs.

The district judge's refusal to order costs was deemed insufficiently reasoned, as he failed to engage with the nature and seriousness of the allegations, the extent of admissions by the father, and the fact that a majority of the allegations were found proved, some despite the father's denials. The circuit judge's refusal to interfere with the district judge's discretion was also found to be erroneous because she did not recognize the district judge's failure to properly exercise discretion.

The court distinguished the present case from Re T, noting that the father's conduct was not irrational, but emphasized that the discretion to order costs need not be limited only to cases involving irrational conduct. The court rejected the father's argument that the denials of proven allegations were excusable as mistakes or lapses of memory.

Ultimately, the court held that the mother's costs in the fact-finding hearing were properly ring-fenced from the broader contact proceedings and that the district judge should have ordered the father to pay a proportion of those costs. The court concluded that two-thirds of the costs should be payable by the father, reflecting the partial admissions and unproven allegations.

Holding and Implications

The appeal is allowed. The court ordered that the father pay two-thirds of the mother's costs of the fact-finding hearing before the district judge. The court also indicated that further argument would be heard regarding the costs of the appeal before the circuit judge.

The decision clarifies that while costs orders are generally disfavoured in Children Act proceedings, a bespoke fact-finding hearing into serious allegations can justify a different approach to costs. The ruling does not establish a new precedent but reinforces the need for careful judicial discretion in costs applications, especially where serious allegations are proved and costs are referable solely to that hearing.