E (Children: Costs)

Factual and Procedural Background

The appellant father challenged the refusal of his application for an order regarding the costs of his legal representation at a substantial fact-finding hearing in Children Act proceedings. The parents married in 2011 and have four children aged 11, 10, 8, and 3. They separated in January 2022 following the father's admission of infidelity. Since separation, the children have remained with the mother and have not seen the father.

Following the separation, both parents made allegations of domestic abuse against each other. The mother alleged physical abuse, coercive and controlling behaviour, emotional abuse, and rape. The father alleged physical abuse, coercive and controlling behaviour, and emotional abuse.

By April/May 2022, the mother additionally alleged that the father had physically and sexually abused two of the children and, to a lesser extent, a third child, and that he enabled other men to sexually abuse two children as part of a "sex-ring". The father contended that these allegations were fabricated to alienate the children from him.

The local authority and police became involved due to the severity of the sexual abuse allegations. Police conducted Achieving Best Evidence (ABE) interviews with the children, but their investigation did not lead to any action against the father. The mother, as a domestic abuse complainant, was entitled to legal aid, whereas the father, of modest means, was not. By the end of the fact-finding hearing, the father had incurred legal costs exceeding £75,000 without obtaining any contact order.

The mother obtained a non-molestation injunction in May 2022. The father applied for contact later that month, asserting that the mother made false allegations to weaponise the children. The application experienced procedural delays, including reallocation to higher courts due to the seriousness of allegations and an administrative error causing a hearing adjournment. The case was eventually allocated to a Deputy High Court Judge who conducted multiple hearings, including an aborted fact-finding hearing in January 2024 due to late disclosures and evidential issues, and a six-day fact-finding hearing in May 2024.

The judge's 68-page judgment, delivered in July 2024, found that while the mother had convinced herself of the father's sexual abuse of the children, the children's accounts were not convincing. The judge found both parents had behaved poorly, with the father being aggressive and threatening, and the mother exhibiting alienating behaviour. The allegations of rape and sexual abuse against the father were not proved.

The court ordered expert advice on freeing the children from the "false narrative" of sexual abuse, with a Dispute Resolution hearing scheduled for March 2025.

Legal Issues Presented

1. Whether the court should make an order that the mother pay the father's costs of the fact-finding hearing in Children Act proceedings.
2. Whether the mother's conduct in pursuing serious sexual abuse allegations constituted reprehensible or unreasonable litigation conduct justifying a costs order.
3. Whether the test for costs orders in fact-finding hearings in private law children proceedings differs from the general no-order principle.
4. Whether a different approach to costs should apply when a costs order is sought as a gateway to recovery from the Legal Aid Agency under section 26 of LASPO.

Arguments of the Parties

Appellant's Arguments

• The judge should have recognised that the mother's pursuit of serious sexual abuse allegations justified a costs order due to reprehensible or unreasonable litigation conduct.
• The judge wrongly relied on factors that could only reduce costs rather than justify no order, including the adjournment of the January hearing, partial success of the mother’s allegations, critical observations about both parents, and findings about the father’s behaviour.
• The adjournment of the January hearing was a consequence of the mother's sexual allegations and should have been attributed to her conduct.
• The court should adopt a "clean sheet" approach to costs applications in acrimonious cases seeking recovery from the Legal Aid Agency, rather than the usual test of reprehensible or unreasonable conduct.
• The court should adopt a "clean sheet" approach to costs applications in private law children proceedings where co-parenting is not possible (this latter argument was abandoned).

Respondent's Arguments

• The judge directed himself correctly in law and exercised a broad discretion appropriately.
• The judge’s findings of fact were not challenged and should be respected.
• The sexual abuse allegations were appropriately considered in context, including the father's own abusive behaviour.
• The mother genuinely believed in her allegations or at least was not found to have known they were false.
• Neither party was wholly reliable, and no order for costs was the correct outcome.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the judge’s broad discretion and the need to read extempore judgments sensibly. It agreed that the judge was correct to consider the entire factual matrix, including cross-allegations of domestic abuse, which are common and generally do not justify costs orders.

However, the court found that the judge erred by failing to recognise the distinct nature and impact of the mother’s extreme sexual abuse allegations. These allegations transformed the proceedings, causing extraordinary delay and increased costs, and should have been treated separately in the costs analysis.

The court held that the adjournment of the January hearing was directly attributable to the mother’s pursuit of these sexual allegations, contrary to the judge's conclusion that it was unrelated to her conduct.

The judge’s reliance on the mixture of findings and the mother’s motivation—that she convinced herself of the truth of the allegations—was found to be unduly indulgent and insufficient to preclude a costs order. The court emphasized that the objective assessment of litigation conduct must prevail over subjective belief.

Several striking features of the mother’s conduct were highlighted, including: the strategic use of sexual allegations to prevent contact; lack of objective foundation for the allegations; a proven lie about knowledge of third parties involved in the alleged sex ring; lurid unpursued allegations; repeated witness statements pressuring the children; deletion of a recording; questionable evidence quality; and poor oral evidence.

Given these factors, the court concluded that the mother’s litigation conduct was reprehensible or unreasonable and justified a costs order. The court declined to remit the matter back to the judge, who continues to hear substantive proceedings, and instead made its own costs order.

Holding and Implications

The court ALLOWED THE APPEAL IN PART and substituted the original judge’s costs decision with an order that:

The mother shall pay half of the father's costs of the Children Act proceedings up to 3 July 2024, excluding costs for hearings where a no order for costs was made; enforcement against the mother requires leave of the Family Court.

This order reflects the significant impact of the mother's false sexual abuse allegations and the father's cross-allegation of alienation on the proceedings. It does not relate to the mother's allegation of rape.

The decision directly affects the parties by requiring the mother to bear a substantial portion of the father's costs, addressing the financial imbalance arising from her litigation conduct. No new precedent altering the established principles on costs in children proceedings was created; rather, the court reaffirmed and applied existing legal standards to the facts.