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M, Re (A Child: Costs)
Factual and Procedural Background
This is an appeal by the Appellant (the father) against a costs order made on 1 October 2025 by Judge Rowe in the Family Court on an appeal from two lay magistrates in private law Children Act 1989 proceedings concerning the parties' child, M (aged 5). The magistrates had made a final child arrangements order (the "April 2025 MC Order") on 25 March 2025 (reasons 2 April 2025). The Respondent (the mother) appealed on 23 April 2025; the Appellant filed a respondent's notice/cross-appeal on 7 May 2025. On 6 August 2025 Judge Rowe allowed the Respondent's appeal, set aside the April 2025 MC Order, dismissed the Appellant's cross-appeal, directed a final hearing with evidence from an independent social worker (the ISW) and both parents, and ordered a new ISW. The Costs Judgment of 1 October 2025 ordered the Appellant to pay the Respondent's appeal costs assessed at £32,723.50 plus VAT (total £39,268.20). Permission to appeal that costs order was granted on 3 February 2026 by Judge Baker, who stayed the costs order pending this appeal. The Appellant now appeals in person; the Respondent was represented below by Attorney Guha and the Appellant by Attorney Baker. The magistrates had earlier found instances of abusive behaviour by the Appellant and had proceeded to make a staged shared-care order; the ISW who reported to the magistrates had recommended staged overnight contact.
Legal Issues Presented
- Whether a costs order should be made against a party in private law children proceedings on appeal, given the general practice of not awarding costs except in exceptional circumstances.
- Whether the Appellant's litigation conduct on appeal (including bringing a cross-appeal, opposing the Respondent's appeal and pre-appeal correspondence about costs) was sufficiently unreasonable or reprehensible to justify an order for costs.
- Whether the Costs Judgment gave adequate reasons and applied correct principles in making a costs order and in assessing quantum, including the use of indemnity versus standard assessment.
Arguments of the Parties
Appellant's Arguments
- The Costs Judgment failed to identify exceptional circumstances to depart from the general rule of no order for costs in children cases.
- The Respondent's appeal succeeded primarily because of procedural errors by the magistrates, not because of reprehensible conduct by the Appellant.
- The Appellant's cross-appeal was responsive and orthodox; resisting the appeal did not equate to unreasonable conduct.
- The solicitor's costs warning letter was a standard protective measure and did not establish an admission that costs should follow the event.
- The Appellant lacks means to pay the award and the indemnity threshold was not met.
Respondent's Arguments
- The Respondent relied on the litigation history and the magistrates' findings about domestic abuse to show unreasonable conduct by the Appellant in resisting the appeal.
- The Appellant opposed a powerful appeal despite being on notice of its basis and launched a cross-appeal that was inconsistent with his resistance to the Respondent's case.
- The Appellant's solicitors had warned that they would seek costs if the Respondent persisted, and the Respondent sought indemnity costs for both first-instance and appeal stages (partly granted below).
- Quantum and continuity of counsel were reasonable; the Respondent sought recovery of those costs.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Re E (Children: costs) [2025] EWCA Civ 183, [2025] 1 WLR 2150 | General practice: ordinarily no costs in family children proceedings; costs may be ordered in exceptional circumstances including unreasonable or reprehensible conduct. | Quoted as encapsulating the general practice and discretion to award costs; used as a starting point for analysis of whether the case was exceptional. |
| Pringle v Nervo [2026] EWCA Civ 266 | Recent restatement that the general rule of no costs in children's cases is well established; sets out legal framework regarding costs. | Relied on as confirmation of the established approach; parties were given opportunity to comment on it and the court treated it as authoritative guidance. |
| In re T (Children) (CAFCASS and another intervening) [2012] UKSC 36, [2012] 1 WLR 2281 | Supreme Court authority addressing costs in children cases; rationale for reluctance to award costs. | Referenced as leading authority reinforcing the principle that costs orders are unusual in children cases and explaining rationale. |
| In re S (A Child) (Access to Justice Foundation intervening) [2015] UKSC 20, [2015] 1 WLR 1631 | Supreme Court elaboration of costs principles in children's cases, including treatment of appeals and conduct. | Used to explain why conduct may be assessed differently on appeal (parties can "take stock") and to support caution in departing from the general rule. |
| Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317 | Classic explanation (Wilson J) of why costs orders are generally undesirable in proceedings about the future of a child. | Quoted (via Re S) to support the view that the child's welfare is paramount and that costs orders may impede cooperation and participation. |
| In re M (A Child) [2009] EWCA Civ 311 | Differences between trials and appeals relevant to reasonableness of continuing litigation on appeal. | Cited to explain why conduct that was reasonable at first instance may become unreasonable on appeal, but applied cautiously by the court. |
| Three Rivers District Council and others v Bank of England (No 6) [2006] EWHC 816 (Comm), [2006] 5 Costs LR 714 | Principles regarding indemnity costs and what amounts to conduct outside the norm to justify indemnity basis. | Referred to by the Appellant regarding the high threshold for indemnity costs; the lower court applied indemnity to limited items only. |
Court's Reasoning and Analysis
The appellate court summarised the Costs Judgment and the litigation history, then examined whether the Judge had correctly applied the well-established principle that costs are ordinarily not awarded in children's cases unless there is unreasonable or reprehensible conduct. Judge Rowe had directed herself on the law, refused first-instance costs and awarded the Respondent most of her appeal costs on the basis that the Appellant's conduct on appeal (resisting a "powerful" appeal, launching a cross-appeal, pre-appeal costs correspondence and a failure to "take stock") rendered the case exceptional. She applied a one-third reduction to reflect disparity in counsel fees and limited indemnity assessment to specific items.
The appellate court analysed each factor relied on by Judge Rowe and found them insufficient to justify departing from the general rule. The court considered (a) that resisting an appeal, even an ultimately strong one, is not necessarily unreasonable in child welfare litigation; (b) that a responsive cross-appeal is permissible and not an abuse; (c) that the solicitors' costs warning letter was an ordinary tactical step and not a tacit admission justifying a costs order; and (d) that the judge's reliance on hindsight and characterisation of the Appellant as having "taken a gamble" was inadequate. The court concluded Judge Rowe erred in principle by distinguishing between first-instance and appeal costs in the way she did and by failing to require a stronger showing of exceptional conduct. Accordingly, the costs order was set aside.
Holding and Implications
The Appellant's appeal is ALLOWED; the Costs Order of 1 October 2025 is discharged and replaced by NO ORDER FOR COSTS.
Direct effects: the appellate court discharged the costs order made against the Appellant and replaced it with no order for costs; the Respondent must bear her own costs of this appeal (noted to be in the region of £20,000 by Judge Jackson). The court recorded that the decision does not establish a new precedent and reiterates the established principle that costs in child welfare proceedings are only exceptional where conduct is unreasonable or reprehensible.
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