B.E. v R.E. (Child abduction: Costs, One Party Legally Aided) (Approved)

Factual and Procedural Background

The Applicant mother initiated summary proceedings under the Hague Convention on the Civil Aspects of International Child Abduction to secure the return of her daughter, a minor, from the Respondent father's home in Ireland to the child's habitual residence in Northern Ireland. The Applicant was legally aided, while the Respondent privately retained legal representation. The Applicant made an open offer on the hearing date to agree to a return order stayed until the child finished the school year in Ireland. After a contested one-day hearing, the Court ordered the child's return. The Applicant then sought an order that the Respondent pay all costs of the proceedings, including those incurred by the Legal Aid Board, relying on statutory provisions that costs generally follow the event. The Respondent argued that family law proceedings usually result in no order as to costs, as these cases often lack a clear winner and involve compromises regarding custody, access, and maintenance.

Legal Issues Presented

1. Whether the Respondent should be ordered to pay the costs of the summary Hague Convention proceedings, including costs incurred by the Applicant's legal aid provider.
2. Whether the general rule that costs follow the event applies in Hague Convention cases, which are categorized as family law proceedings.
3. How the Court should exercise its discretion regarding costs in family law proceedings under the Legal Services Regulation Act 2019 and relevant case law.
4. The weight to be given to the Applicant's open offer to settle and the conduct of the parties in determining costs.

Arguments of the Parties

Applicant's Arguments

• The Applicant contended that costs should follow the event as provided by section 169 of the Legal Services Regulation Act 2019, meaning the Respondent should bear all costs.
• The Applicant emphasized her open offer to settle, which included a stay of the return order until the child completed the school year, arguing this should influence the Court's discretion on costs.
• She submitted that the Respondent's refusal of the offer and conduct prompted the proceedings and materially increased costs.

Respondent's Arguments

• The Respondent argued that family law proceedings are an exception to the general rule on costs, with the usual order being that each party bears their own costs.
• He submitted that family law cases typically involve no clear winner due to their compromise nature, including custody, access, and maintenance issues.
• The Respondent stated he received the open offer only minutes before the hearing, limiting his ability to consider it appropriately.
• He asserted he did not unduly prolong or complicate the proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged that Hague Convention cases, while involving a binary outcome (return or not return the child), retain the character of family law proceedings. Family law cases commonly lack a clear winner and involve compromises, making the usual rule that costs follow the event less applicable. The Court examined statutory provisions, including section 169 of the Legal Services Regulation Act 2019 and section 33(2) of the Civil Legal Aid Act 1995, which require courts to consider conduct, reasonableness, and settlement offers, and treat legal aid recipients as if self-funding for costs purposes.

Drawing on case law, the Court noted that costs orders in family law are generally disfavored unless there is arbitrary, capricious, or unreasonable conduct justifying departure from the norm. The Applicant’s open offer to settle was considered but given its timing shortly before the hearing, the Court found it insufficient to warrant a costs order. The Respondent’s conduct was not unreasonable or vexatious, and his refusal to accept the offer did not amount to misconduct. The Court emphasized the importance of preserving family assets and avoiding punitive costs orders in family law contexts, recognizing the emotional and practical complexities involved.

Ultimately, the Court concluded that the Hague Convention proceedings, although summary and urgent, do not justify departing from the general family law approach to costs. The Court also highlighted the critical role of legal aid in ensuring access to justice in such sensitive cases.

Holding and Implications

The Court made no order as to costs in these Hague Convention family law proceedings.

This decision means that each party bears their own costs, including the Applicant’s legal aid costs, reflecting the established family law principle that costs orders are generally not made in such cases unless exceptional circumstances exist. The ruling underscores the Court’s recognition of the unique nature of Hague Convention cases as family law matters and the importance of access to legal representation through legal aid. No new precedent was established; the Court applied existing principles to the facts presented.