Factual and Procedural Background
The Appellant and the Appellee were in a relationship from late 2016 to early 2019. The Appellee discovered that the Appellant had a long-term relationship in The State and the parties separated. The Child was born in 2019. The Appellant lives in The State; the Appellee lives in The City and is professionally prominent via Company A and its social media platform. A consistent underlying conflict was the Appellee's desire to publicise her account to her followers versus the Appellant's desire for privacy for himself, the Child and his extended family.
Between 2019 and 2022 the parties engaged in prolonged pre‑action correspondence and attempted non‑court dispute resolution including therapeutic work and mediation; these efforts faltered. On 22 September 2022 the Appellant applied for Child Arrangements and Parental Responsibility orders. The Appellee filed a C1A alleging harm and domestic abuse. An independent social worker (ISW) was appointed and, following a Dispute Resolution Appointment in April 2023, the Child met the Appellant and contact progressed with ISW assistance.
In September 2023 the Appellee changed legal team and advanced applications seeking admissions or a fact‑finding hearing on serious allegations. A fact‑finding hearing application was refused by Judge Roberts on 8 February 2024. The Appellant subsequently filed a schedule of admissions on 29 February 2024 and contact continued. The Appellant later indicated he wished to withdraw his applications (notification given in August 2024) and the case was listed for a shorter welfare hearing.
Hearings were listed and held in September 2024 and February 2025 (some attendance remote was permitted). On 8 May 2025 Judge Allen made a Costs Order requiring the Appellant to pay 75% of the Appellee's costs amounting to a specified sum. The Appellant appealed that costs order. The appellate court heard argument and delivered judgment allowing the appeal and substituting an order that there be no order for costs except for costs of the Appellee's preparation of the declaration of parentage application on the standard basis.
Legal Issues Presented
- Whether the judge erred in making a costs order in private law Children Act proceedings given the established threshold that costs orders should only be made where conduct has been "reprehensible or unreasonable" (as explained in Re T and Re S).
- Whether the judge misapplied CPR and FPR principles in deciding both (a) whether to make a costs order (CPR 44.2(4) and (5) and FPR 28) and (b) the proportion of costs payable (CPR 44.4).
- Whether the judge failed to have regard to the conduct of both parties (not only the Appellant) when exercising the discretion to award costs.
Arguments of the Parties
Appellant's Arguments (Attorney Brereton)
- The judge had a too narrow focus and failed to consider the litigation as a whole, including the Appellant's overall success on key issues and the Appellee's conduct.
- The judge improperly relied on selected pre‑action correspondence to infer motivation for issuing proceedings.
- The judge failed to apply CPR 44.4(2) and (3) correctly by not factoring mitigating matters into the initial discretion whether to make an order.
- The Appellant's non‑attendance at two hearings and late procedural decisions did not reach the high threshold of reprehensible or unreasonable conduct required to justify a costs order, and the 75% figure was disproportionate.
Appellee's Arguments (Attorney Vickers)
- The judge was entitled to focus on the Appellant's conduct; having presided over the case the judge was well placed to assess the broader conduct and the weight of the Appellant's litigation conduct.
- The Appellant's litigation conduct (including motivation to obtain publicity restrictions, late withdrawal and non‑attendance) could be unreasonable even if he ultimately obtained substantive outcomes.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re T (children) (care proceedings: costs) [2012] UKSC 36, [2012] 4 ALL ER 1137 |
General practice: no costs orders in children cases absent reprehensible or unreasonable conduct. |
The court applied the Re T principle as the governing test and treated it as the threshold the judge had to apply when considering departure from the general rule. |
| Re S (A Child) (Father's Costs of Appeal) [2015] UKSC 10, [2015] 2 All ER 778 |
Affirmation that costs orders in children's cases should be unusual and only in specified circumstances (reprehensible or unreasonable conduct). |
The court relied on Re S to reinforce the limited circumstances in which costs orders should be made and to require careful assessment of both parties' conduct. |
| Gojkovic v Gojkovic (No 2) [1992] 1 All ER 267 |
Early authority recognising the principle that costs orders are unusual in children's cases. |
Cited as historical authority supporting the general approach against routine costs orders in child proceedings. |
| Sutton London Borough Council v Davis (No 2) [1995] 1All ER 65, [1994] 1 WLR 1317 |
Example circumstances where costs orders may be justified (reprehensible conduct or unreasonable stance). |
Used to illustrate categories of conduct that may justify costs orders. |
| Havering London Borough Council v S [1986] 1 FLR 489 |
Illustrative authority on unreasonable stances justifying costs in family proceedings. |
Referenced as part of the established categories of conduct that may lead to costs orders. |
| Re E (children: costs) [2025] EWCA Civ 183 |
Confirmed that the general practice is not to award costs in children cases but the court retains discretion in exceptional circumstances (including reprehensible or unreasonable behaviour). |
The appellate court relied on Re E's summary of approach; it rejected a submission to depart from that approach and treated Re E as consistent with Re T and Re S. |
Court's Reasoning and Analysis
The appellate court accepted the legal framework (CPR 44 and FPR 28) and the established principle from Re T/Re S that costs orders in children's cases are exceptional and permitted only where conduct has been reprehensible or beyond the band of what is reasonable. The court identified that the judge (Judge Allen) had relied on four features of the Appellant's conduct as justifying a costs order: (i) part‑motivation by a desire to obtain publicity restrictions (privacy/reputation), inferred from limited pre‑action letters; (ii) the lateness of the Appellant's withdrawal of his applications; (iii) the Appellant's failure to attend two hearings (remote attendance was permitted); and (iv) late concession to a s.91(14) order and a late application to adduce further evidence.
The appellate court analysed each feature. On motivation the court held the judge placed undue weight on isolated pre‑action correspondence (three letters) and that such limited material could not support a finding that the Appellant's motivation justified a costs order. On late withdrawal the court observed that late changes are common in private law cases and that the Appellee's subsequent conduct (seeking a fact‑finding hearing and resisting withdrawal) contributed materially to further costs; therefore the late withdrawal did not justify a costs order alone. On non‑attendance the court found the Appellant had genuine medical evidence of depression/anxiety, counsel were instructed, hearings involved submissions only, and no court time was lost; non‑attendance at these hearings did not reach the threshold of unreasonable or reprehensible conduct. On the late concession and late evidence application the court accepted their marginal impact on costs and that they did not, on their own, amount to conduct justifying a costs order.
Critically, the appellate court concluded the judge erred in two interrelated ways: (1) he considered only the Appellant's conduct and failed to take sufficient account of the Appellee's litigation conduct (notably the change of approach in September 2023, the unsuccessful attempt to obtain a fact‑finding hearing and the Appellee's desire for publicity which the judge had elsewhere acknowledged had impeded contact with the paternal family); and (2) he misapplied CPR 44.2 and CPR 44.4 by treating matters that should have informed the initial discretion whether to make a costs order as only mitigation when assessing amount. When the Appellee's conduct and the broader context were properly considered, the Appellant's conduct did not meet the high threshold required to depart from the general rule against costs orders in children cases.
Holding and Implications
APPEAL ALLOWED; ORIGINAL COSTS ORDER SET ASIDE; NO ORDER FOR COSTS
Consequences: the appellate court allowed the appeal, set aside Judge Allen's order that the Appellant pay 75% of the Appellee's costs, and substituted an order that there be no order for costs between the parties, save that the Appellee is to recover costs of preparing the declaration of parentage application on the standard basis (to be assessed if not agreed). The three appellate judges concurred with this outcome.
No new legal principle or departure from the established authorities was asserted; the decision applies existing tests (Re T/Re S/Re E) and emphasises that courts must consider the conduct of both parties and properly apply CPR 44 when deciding whether to make or quantify a costs order in children's proceedings.