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E-R (Child arrangements order - Costs no 2) [2017] EWHC 2535 (Fam)

Application for costs by a “psychological parent” against a father in private law proceedings.

This matter last came before the court on 11th September 2017 whereby Cobb J made a number of private law orders in respect of T, an eight year old girl. On that occasion the application was by her "psychological parent" Mrs H who sought to vary an order made in 2016 after, she contended, the Father and his partner Miss B had breached the terms thereof.

At the conclusion of the 2017 proceedings Mrs H made an oral application for costs against the Father and Miss B. As the Father was not present at the judgment hearing, His Lordship had agreed to adjourn the matter for 14 days for the Father and Miss B to consult with one another and respond in writing to the application.

Mrs H's case was that she had been put to considerable expense in issuing a further application so soon after the conclusion of the previous proceedings and maintained that she did so because the Father and Miss B had failed to comply with the order and more significantly the Father's conduct and the consequences of his breaches had been to the detriment of T.

The Father and Miss B contended that as they are of limited means a costs order would be "an undue and onerous" burden and impact upon the contact they can enjoy with T. Miss B went further in her opposition and submitted that as she was not directly involved in the proceedings it would be unfair and incorrect for her to be jointly and severally liable for any costs.

His Lordship had made a costs order against the Father at the conclusion of the first round of litigation in 2016. At that time he had reminded himself of the relevant principles: Re E-R (Child Arrangements) [2016] EWHC 805 (Fam), especially at [74] - [80] inclusive.

In relation to this application, Cobb J concluded that the Father's conduct in breaching His Lordship's earlier order in relation to summer contact in 2016 had been "unreasonable" and "reprehensible" conduct.

At [10] His Lordship distilled the evidence of relevant "conduct" from his substantive judgment.

Cobb J took into account:
(i) the fact that the Father had suffered from serious mental ill-health;
(ii) that he was unrepresented;
(iii) that he had apologised for the breach of the previous order; and
(iv) the impact a costs order may have on the Father's future compliance with any order.

His Lordship ordered the Father to pay a contribution of £15,000 to the total unassessed costs of Mrs H which exceeded £35,000. No separate order was made against Miss B and the order for costs was not to be enforced without the leave of the court.

Summary by Anna Walsh, barrister, Coram Chambers

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Neutral Citation Number: [2017] EWHC 2535 (Fam)
Case No: FD16P00555

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Coverdale House
East Parade
Leeds

Date: 12/10/2017


Before :

THE HONOURABLE MR JUSTICE COBB
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Between :

Re E-R (Child Arrangements Order No.2: Costs) 
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Clare Renton
(instructed by Everys) for the Applicant (Mrs H)
Mary Hughes (instructed by Walters & Barbury) for the child
The father and Miss B were unrepresented

Hearing dates: 11 September 2017
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Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................

THE HONOURABLE MR JUSTICE COBB
This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

The Honourable Mr. Justice Cobb : 
Introduction

1. By judgment delivered on 11 September 2017, I explained my reasons for making a range of private law orders under Children Act 1989 in respect of a young child, T, aged 8.  That judgment (Re E-R (Child Arrangements No.2) [2017] EWHC 2382 (Fam)), and indeed its forerunner (Re E-R (Child Arrangements) [2016] EWHC 805 (Fam)), should be read as a preface to this judgment, in order to understand the history of the litigation and the issues.

2. At the hearing on 11 September, and following discussion as to the terms of the order, Miss Renton, on behalf of the Applicant, Mrs. H, made an oral application that the Respondents should pay, or substantially contribute to, the Applicant's costs of the litigation.  The First Respondent father was neither present nor represented at the hearing; he was apparently suffering ill-health. The Second Respondent, Miss B, who was present and accompanied by a McKenzie Friend, asked that they be given the opportunity to consult with each other about the application and respond in writing.  I acceded to that request, and gave them 14 days to do so. 

The Applicant's case
3. The Applicant, Mrs. H, contends that she has been put to considerable expense in issuing a further application in relation to T, so soon after the conclusion of the previous litigation, solely – she maintains – because the father and Miss B have failed to comply with the order which I made in April 2016.  More significantly, the father's conduct has, in her submission, been to the detriment of T. 

4. Mrs. H contends that the father and Miss B have been unable or unwilling to acknowledge their damaging behaviours and/or face up to the consequences of his breaches of my earlier order (April 2016), and that they should therefore be penalised in the costs.

The Respondents' case

5. The Respondents have submitted a short statement by e-mail in compliance with my order. The essential part of that submission (evidently written by Miss B) reads as follows:

"… we have limited means and the costs against us (sic.) represents an undue and onerous burden.  This is clearly beyond our means and will destroy our lives and make contact with [T] all the more challenging to afford, which bearing the circumstances will not be a kind or fair thing to do.

I am [the father's] partner and despite being named as a Respondent in this matter, I am not directly involved in that [T] is [the father's] daughter and I am merely [the father's] partner.  It appears unfair and incorrect that I should be named as jointly and severally liable for these costs."

6. The Respondents have submitted their own claim for costs against Mrs. H, though the basis of such a claim is unclear.  Their schedule reveals incurred costs in excess of £16,000.  This sum appears, in the main, to reflect lost earnings for the hours they devoted into preparing for the hearing.  Their schedule gives me some idea about their earnings.

Discussion

7. I had cause to make a costs order, exceptionally, against the father at the conclusion of the first round of litigation concerning T: see Re E-R (Child Arrangements) [2016] EWHC 805 (Fam), especially at [74]-[80] inclusive. 

8. At [74]-[77] of that earlier judgment I set out the principles on which I founded my decision.  The useful starting point, which I once again adopt, is Section 51(1) of the Senior Courts Act 1981 which provides that, subject to rules of court, costs shall be in the discretion of the court. I drew attention to Rule 28.1 of the Family Procedure Rules 2010 ('FPR 2010') which provides that "[t]he court may at any time make such order as to costs as it thinks just".  I then went on to discuss the case-law, and how it has applied these broad principles.  I apply these principles once again.

9. I am quite clear that costs do not follow the event in family proceedings (Rule 44.3(2) of the CPR 1998 is disapplied in family proceedings), and that parties should not ordinarily enter into family law litigation concerning the welfare of a child with the worry of a costs order hanging over them.  Only where such litigation or other conduct has been found to be "unreasonable or reprehensible" will a costs order in Children Act 1989 cases be justified.

10. I distil the evidence of relevant 'conduct' from my recent judgment as follows:

i) Having made a comprehensive range of orders in April 2016 carefully designed to meet the needs of T, I found that those orders were "sadly largely ignored, and indeed very soon breached, by the father and Miss B" ([2017] EWHC 2382 (Fam) at [2]);

ii) The father cancelled more than half of his contacts with T, which I had ordered should take place in the period up to July 2016 (ibid.) [11];

iii) The father told a "blatant lie" to Mrs. H about his plans for a holiday contact in summer 2016, and in breach of my order he took T to his home in Suffolk; more serious still was that he "encouraged T (as I find) to lie to Mrs. H about where she had been for the week" (ibid.) [13];

iv) Contact was shortened by the father in October 2016, and cancelled in November 2016 (ibid.) [17/18];

v) The father "… has limited respect for the authority of the court, specifically for the Child Arrangements Order, believing that only he should decide when he sees T. He told me that he had "not really read" the court order from April 2016, and professed ignorance and surprise when I pointed out that pursuant to that order he could have phoned T twice per week" (ibid.) [55];

vi) Mrs H has to deal with "the unreliability and untrustworthiness of the father … She has the burden of protecting T from the frustrations, disappointments and distress which surrounds some of the contact…" (ibid.) [57];

vii) At the recent two-day hearing, the father half-heartedly resurrected an application for a change in T's living arrangements, seeking an order that she live with the Respondents.  This represented a 180º change of position from that taken by them earlier this year. I find that while this did not add to the costs of the litigation it reflects his distorted view of the reasonableness of his position overall, and his lack of respect for my earlier order; (ibid.) [4], and [60]-[64];

viii) Prior to the last hearing, the Respondents had issued an application for an order under section 11I of the Children Act 1989, which I dismissed (ibid.) [5] and [65]; while this was a meaningless exercise on their part, I accept that this did not add to the cost of the litigation;

ix) The general tone of the father's evidence and submission to the court, and that of Miss B, is as I set it out at [42] (and see also [43-44]), namely: "They invite me to dismiss Mrs. H's application for a change in the child arrangements as an "abuse of process" and ask me to order Mrs. H to "desist from unwarranted litigation"; "to order [Mrs. H] not to breach orders of the Court by impeding contact …"".

11. In addition to the matters set out in the preceding paragraph, I also bear in mind, in resolving the costs issue:

i) That the father has suffered from serious mental ill-health, and indeed has attempted suicide, in the period since the last hearing.  I note again that his failure of contact "may, in truth, have had more to do with the father's poor state of mental health than he is prepared to admit to the court or perhaps to himself" [29];

ii) That the father and Miss B have apologised to the court for the breach of the order.  That said, their evidence, indeed the overall tenor of their case, is essentially unrepentant;

iii) That the Respondents are unrepresented, and without the benefit of legal advice.

12. One of the most disturbing features of the evidence at this hearing is that it is said that "T is more damaged now than when her mother died" ([37]) as a result of the unpredictability of contact; my view was and is that "[r]egrettably, the father and Miss B have to take significant responsibility for this." ([53]) This damage to T is the greatest 'cost' of these proceedings – more than any financial penalty.

13. In relation to the father's ability to pay any costs order, I have weighed the following factors:

i) That he has asserted impecuniosity as a basis for resisting the application for costs (see [5] above);

ii) That, nonetheless, both the father and Miss B are in work;

iii) That the father makes no financial contribution to T's upbringing whatsoever.

Conclusion
14. I am satisfied that in September 2016 Mrs. H felt reluctantly compelled to make the application for a variation of the child arrangements order which I had made only months earlier because it was clear to her, as it has been clear to me, that the father had little interest or motive in complying with my earlier order.  His specific and deliberate breach of the order about summer contact in 2016 was in my view serious; it was on any view "unreasonable" and "reprehensible" conduct, which materially undermined the integrity of my earlier order, and the trust of Mrs. H and T.  His deception of Mrs. H, and his manipulation of T, has had serious adverse consequences for his relationship with his daughter.  It is clear that the father knew that he was breaching my order, and the seriousness of that breach was compounded by inveigling T into his deception. 

15. The father did not need a lawyer to tell him that he was doing wrong in deceiving Mrs. H and T, and wilfully breaching my order; it is clear from the evidence laid before me at this hearing that he knew he was.  The father did not need a lawyer to tell him that failure to abide by a contact order would be likely to cause his daughter considerable distress.  Nor is the father prejudiced by the absence of a lawyer in now having to face up to the consequences of his actions; I have listened to him, and to Miss B – assisted by their McKenzie Friend – through the two days of hearing.  Moreover, the father only has himself to blame if he chooses not to read the order which I made (see [10](v) above).  While there are certain exceptional circumstances in which the court may be prepared to show a degree of latitude to an unrepresented litigant for minor defaults of an order, where with the benefit of legal advice the court is satisfied such default would not have occurred, I am satisfied that this is not such a situation.   The father's apologies to the court rang hollow when heard alongside his diatribe against Mrs. H, and his complaint about the court and its processes.

16. Having weighed all the matters discussed above, I have reached the conclusion that the father must contribute towards Mrs. H's costs; his contribution could, and probably should, be more significant than I am proposing to order.  In moderating the sum, I take into account that, in part, his disengagement from the process may be attributable to his illness, and I have borne in mind his apparently modest means.  I am keen to ensure that he does not use this costs order as an excuse for him not to comply with the child arrangements order which I have now made, and I propose therefore to direct that the costs order will not be enforceable without my permission.

17. Mrs. H's unassessed costs are said to exceed £35,000.  This is money which she can ill-afford.  She and her husband support T entirely without assistance.  I propose to direct that the father should contribute the sum of £15,000 towards those costs.   I make no separate order against Miss B.  As I say ([16] above), this order for costs should not be enforced without leave.

18. That is my judgment.