R (A Minor)

Factual and Procedural Background

This appeal arises from a costs order made by His Honour Judge Goldstein in the Bow County Court on 18th October 1994, following a lengthy hearing concerning the residence of the parties' child, referred to as R, who was then aged 10. The judge ordered the father, who was the respondent in divorce proceedings, to pay the mother's costs out of his share of the equity in the matrimonial home. Leave to appeal was granted by Lord Justice Thorpe on 5th July 1996. The appeal concerns both the form and the principle of the costs order made against the father.

Legal Issues Presented

1. Whether the form of the costs order was legally correct given the requirements of section 17(1) of the Legal Aid Act 1988, which mandates an inquiry into the reasonableness of the amount payable having regard to all circumstances including financial resources and conduct.
2. Whether the costs order was correct in principle, particularly considering the established practice in child-related proceedings to generally make no order as to costs except in exceptional circumstances.

Arguments of the Parties

Appellant's Arguments

• The form of the costs order was wrong in law because the judge failed to conduct the required inquiry under section 17(1) of the Legal Aid Act 1988.
• The consideration of costs liability should have been adjourned to be dealt with alongside ancillary relief proceedings where both parties' financial means would be fully disclosed.
• In principle, no order for costs should have been made against the father, consistent with the general practice in children cases to avoid costs orders so as not to deter parties from advancing genuine claims in the child's best interests.
• The father's conduct, while criticised, was not entirely unreasonable and should not be penalised as it related to his character rather than his litigation conduct.

Respondent's Arguments

• The judge was entitled to order costs against the father due to his unreasonable conduct during the litigation.
• The father's unreasonable approach included dismissing reports from court welfare officers and social workers, and engaging in litigation conduct that went beyond typical parental concern, such as taking the child to an unqualified psychologist without court leave and consulting a solicitor between evidence and judgment.
• Costs orders in exceptional cases are appropriate and justified, especially where one party's conduct is unreasonable and where the court's discretion supports such an order.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged that the form of the costs order was legally flawed because the judge did not conduct the inquiry mandated by section 17(1) of the Legal Aid Act 1988, which requires assessment of the reasonableness of the costs payable considering all circumstances, including financial resources and conduct. The court agreed that the proper procedure would have been to defer the costs determination until ancillary relief proceedings, where full financial disclosure would be available.

Regarding the principle of making a costs order, the court recognized the well-established practice of generally making no order as to costs in children cases, except in exceptional circumstances. Three main reasons for this practice were identified: to avoid diminishing family resources, to encourage parties to present their views without fear of cost penalties, and to avoid exacerbating tensions between parties over child-related disputes.

However, the court found that the father's conduct in the litigation was unreasonable and exceptional. The judge's detailed criticisms included the father's inflexible attitude, dismissal of expert reports, and inappropriate actions such as consulting an unqualified psychologist without court approval and involving a solicitor between the end of evidence and judgment. These actions went beyond normal parental concern and justified an exception to the usual practice.

The court emphasized that while parties should not be deterred from genuinely advocating for the child's best interests, limits exist where conduct is unreasonable and causes unnecessary strain on the child and the litigation process. The judge was deemed the best person to assess the appropriateness of the costs order, and the appellate court found no reason to disturb his discretion on this point.

Lord Justice Staughton concurred, noting that although the form of the order was inappropriate and required deferral for a proper inquiry under section 17(1), the principle of making a costs order was justified given the father's unreasonable litigation conduct. The court rejected the argument that the father’s genuine belief in his position should shield him from costs liability where his attitude was not reasonable.

Holding and Implications

The appeal was ALLOWED IN PART. The court held that the form of the costs order was incorrect because the required inquiry under section 17(1) of the Legal Aid Act 1988 had not been conducted. The order for the father to pay the mother's costs was to be deferred until a determination was made regarding what amount, if any, was reasonable for the father to pay, considering all circumstances including financial resources and conduct.

The court affirmed the principle that costs orders in children cases are exceptional but justified in cases of unreasonable conduct, as found here. The direct effect is that the father’s liability for costs must be reassessed properly in ancillary relief proceedings. No new legal precedent was established; rather, the decision reaffirmed existing principles and the court's discretion in managing costs in family litigation involving children.