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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> M (Children : Residency/Contact : No 3)  EWHC 1998 (Fam) (26 May 2016)
Cite as:  EWHC 1998 (Fam),  4 WLR 139,  WLR(D) 468
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| M (Children : No 3)
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THE FIRST RESPONDENT appeared in Person.
THE SECOND RESPONDENT appeared in Person.
MS. S. JAFFAR appeared on behalf of the Children's Guardian.
Crown Copyright ©
MR. JUSTICE NEWTON:
"(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including -
(a) the conduct of all the parties".
"(5) The conduct of the parties includes -
(a) the conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction or any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim".
1) That I have a wide discretion in relation to the award of costs.
2) That costs do not ordinarily follow the event in family proceedings as they do in other civil proceedings.
3) Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that, in their outcome, the child is the winner, and the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. The court does not wish to reduce the chance of their cooperation around the future life of the child by casting one, as it were, as a successful party entitled to his costs and the other as the unsuccessful. It is, after all, important for the parties to be able to work together in the interests of the children both during and after the proceedings, both during their minorities and conceivably beyond. Children's lives do not stand still and stigmatising one party as the loser and adding to that the burden of having to pay the other's costs is likely to jeopardise that future cooperative relationship.
4) It can be generally assumed that all parties to the case are motivated by concern for the child's welfare.
5) An award of costs in family proceedings may be justified if it is demonstrated that the conduct of the party before, as well as during, the proceedings and/or in the manner in which the case has been pursued or defended has been reprehensible or unreasonable. Unreasonableness is a consideration in awarding costs which can be traced back at least to R v. R in 1997, and indeed cases long before it.
6) Orders for costs between the parties may diminish the funds available to meet the needs of the family. Not making an order for costs may have the same effect. In this case, it makes little difference, except to say that the father's circumstances, in particular, are very modest and he has so far signally failed to provide any proper support for his children or his wife.