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O (A Child) [2008] EWCA Civ 820

Application by mother for permission to appeal, with appeal to follow, a costs order arising from private Children Act proceedings. Application refused.

The proceedings had evolved into an intractable contact dispute, with the mother adamant that her daughter should not have contact with the father. In the course of the proceedings a psychologist was appointed, to which the mother objected, with her fees to be shared by the parties. The psychologist first reported that there should be an attempt at contact but at a further hearing, and after discussions with the guardian, changed her mind as contact would be a practical impossibility. The mother did not attend that hearing, as she claimed there was no need for the psychologist to attend, but the judge found that she had deliberately missed the hearing so made a costs award against her.

In this judgment Thorpe LJ, while concerned that a costs order has been made in Children Act proceedings, agreed with the judge’s order on the grounds that i) it was a conventional order and one that was open for him to make in the circumstances ; ii) the judge had found the cross-examination of the psychologist helpful; and iii) the mother’s plea that she could not afford to pay the costs did not mean that the orders should not be made principle.

Case No: B4/2008/0211
Neutral Citation Number: [2008] EWCA Civ 820
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 26th June 2008


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(DAR Transcript of
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(As Approved)

Crown Copyright©

Lord Justice Wall:

1. This is an appeal by the mother of a young girl called I, born on 24 November 1997.  She appeals against parts of an order made by HHJ Polden on 28 January 2008.  The order which she appeals is peripheral to the main application before the court which I will need to set out in a moment. 

2. Essentially, however, what had happened was that during the course of the proceedings the child had been given a guardian, pursuant to rule 9.5 of the Family Proceedings Rules, and the guardian had applied for permission to disclose the papers to a psychologist for a report.  The psychologist in question was unavailable and the task was handed to a second psychologist, who produced two reports and at the end of the day, in circumstances I shall described in a little more detail in a moment, the judge who had heard the substantive application for residence of I divided the cost of the psychologist’s reports and attendances at court equally between mother, father and guardian. The making of this order forms the first limb of the mother’s appeal. 

3. The second limb which is appealed is the order made by the judge on 28 January 2008, that the mother should pay the father’s costs of a hearing on 21 February 2006 on the indemnity basis which the judge summarily assessed at £2,556.10.  The mother was given the opportunity to apply to the court in writing seven days after service of the order of 28 January on her as to this amount. The judge was concerned about it. However, the mother did not avail herself of the opportunity given to her by the judge to challenge the amount, and the order thus stands. 

4. However, the judge made no order in respect of the second hearing on 24 February 2006 in which the father had claimed his costs again in circumstances I shall come back to in just a moment. 

5. There is a long history of litigation between these parents over their daughter.  Both are of Nigerian origin.  Both are medically qualified.  The father is a psychiatrist currently living in Canada.  The mother, as I understand it, is a paediatrician. Earlier this year in May I refused the father’s  application for permission to appeal against the judge’s refusal to make a residence order in his favour. His plan at that stage was to take I back to Canada.

6. In correspondence with the court following my judgment, the father has indicated his wish to reopen the question of I’s residence.  Through the court office I have made it very clear to him that as far as this court is concerned that issue is now closed.  His application for permission to appeal has been refused. That is the end of the matter so far as this court is concerned.  

7. However, the father  also wished (as was apparent on the  occasion when I refused him permission to appeal against the judge’s refusal to make a residence order) to appeal against the judge’s refusal to order the mother to pay his costs of the hearing on 24 February 2006, to which I have already referred. This hearing was thus arranged so that he would be able to come over from Canada to argue the point. In the event, he has not attended today and in my judgment, therefore, any application on his part falls to be dismissed.   I therefore dismiss his application for permission to appeal against the judge’s refusal to make an order for costs in his favour relating to the hearing on 24 February 2006.

8. That leaves the substantive matters before us this afternoon which are the mother’s applications in relation to the two orders to which I have referred.

9. Now I need a little, I think, to go back over the history of the matter.  As I say, there were lengthy proceedings between these parties and the fundamental issue was initially whether or not the father should be afforded any form of contact with the child.  It is apparent from the documentation, and I speak very broadly here, that I had formed a fixed view that she did not wish to see her father. In that,  she was strongly supported by her mother, and I think it not unfair to describe this sort of case as the intractable contact case.  The mother was absolutely adamant that contact would not take place.  She said that the father had played no real part in the life of the child for a very long time;  that the father wished to abduct the child to Nigeria and that the fears that the child had about her father were wholly warranted. 

10. On the other side, it is quite clear that when the father initially applied for contact his wish was to resume a relationship with his daughter; and I have no doubt that when the matter came before the court in its early stages the thinking behind the interlocutory orders which were made was that this process – namely the re-introduction of  daughter to father should be facilitated if at all possible. This, I think is plainly apparent from the first of the hearings at which the question was addressed, namely the hearing on 11 September 2006.

11. On this occasion what appears to have happened is that the judge then dealing with the matter decided that the child should have a guardian under rule 9.5 of the Family Proceedings Rules. A guardian was duly appointed.  There was some discussion at that hearing about the guardian being given permission to instruct a psychologist to examine both the parents and the child and the general family dynamic, and it is fairly clear from the discussions that took place both on 11 and on 22 September, when the matter came back before the same judge, HHJ Cox, that the mother was strongly opposed to any such instruction.  She has taken us this morning and this afternoon to various parts of the transcripts which she has obtained, in which she makes it very clear that she not only thought that an investigation by a psychologist was uncalled for, but that it would be damaging to the child and indeed would not tell the court anything it did not know already, namely that the father had no relationship with the child. 

12. So the mother  made it very clear at an early stage that not only did she think the psychological investigation unnecessary but that she would not be prepared to pay for it. Thus it was,  on 22 September 2006, when the judge overruled her objections and appointed a psychologist, the order of the court was in these terms:

“In the first instance, Dr B [that was the original psychologist proposed] is restricted to 20 hours work.  Dr B’s’ fees will, in the first instance, be shared, in that the father will pay one-third and the child shall pay two thirds through her legal services commission certificate.  The question of the mother’s contribution to Dr B’s fees is reserved until the end of the final hearing provided for in paragraph 9, by which time she shall have filed and served not less than 14 days beforehand evidence of her financial circumstances.” 

13. There were other orders, including an order directing the mother to attend on all further hearings, and there was an adjournment of the question of the costs which had been incurred in February 2006 which were ultimately dealt with by HHJ Polden. 

14. As it turned out,  Dr B was unavailable to do the work and so the work was undertaken by a Ms L, who produced two reports.  The first report was highly critical of the mother.  Ms L appears to have taken the view that the mother had a form of personality disorder;  that the mother was adamant there would be no contact between father and daughter; and that the mother’s attitude was  in turn harmful for the child, because the child was being brought up to believe that her father was an abductor and someone who would be likely to harm her. 

15. Before us in argument today the mother was highly critical of Ms L’s report, and indeed it is clear that she cross examined Ms L at the first hearing along the lines that Ms L had no concept of African culture; that she did not appreciate the invalidity of the tests she had applied in relation to the mother, and that therefore her report was not worth the paper that it was written on. 

16. Whether or not Ms L was right or wrong in her assessment of the mother, it was very clear by the time the matter came back before the judge after Ms L had reported  that the mother was not going to co operate in any form of rapprochement between daughter and father. The consequence of that was a further adjournment by the judge so that the guardian could instruct an independent social worker, a Ms L, to provide an assessment. That assessment was filed on 28 August 2007.  By this stage -  that is by the time that the independent social worker reported -  it was doubly plain, because Ms L’s  view coincided with that of the guardian, that there was no real prospect of this child willingly seeing her father.

17. It was in those circumstances that, in my view somewhat unrealistically, the father applied for residence of the child, and it was  his application for residence / contact  which were heard over a period of three days in October 2007. 

18. As a consequence of that hearing we have a long and very careful judgment by the judge in which he is highly critical of both parents for their respective attitudes towards each other and indeed towards their child, but which comes to the conclusion, in my judgment probably inevitably, that the father’s residence application had to be refused and that there would be indirect contact only in relation to the child. 

19. The judge once again put over all question of the orders for costs of the hearings in February 2006 to a separate occasion, on the basis that he had had no time to deal with them when dealing  with the substantive applications for residence and contact.  He invited written submissions,  and he has  produced a separate written judgment dealing with the various applications relating to costs. 

20. The judge had to consider, firstly, the guardian’s application for costs in relation to Ms L. Secondly, he had to consider the question of the two hearings which had been aborted and in relation to which the father sought his costs. 

21. In relation to the first of the issues, namely the division of the fees of Ms L (including the costs of  her attendance at two hearings) between the mother, father and the Legal Services Commission, the judge made the point (and in my view was right to point out) that this was a very conventional order. He is right about that . When an expert is appointed, it is commonplace for  responsibility for the expert’s fees expert to be  divided equally between the parties. 

22. It is also frequently the case that a parent objects strongly to an investigation by a psychologist or other expert. That is clearly what the mother has done in this case.  It is moreover frequently the case that one of the parents disagrees with the conclusions which the expert reaches. Once again,  that  is what has happened in this case.  But the guardian had made it very clear that in the guardian’s view the cost should be shared equally.  The letters of instruction -- the letter of instruction to Dr B and then to Ms L --  were both in due course sent to the mother.  The mother, although she was highly critical of Ms  L, (indeed she has shown us today a document in which those criticisms are forcefully enunciated)   did not object in terms to any of the actual requests made in the respective letters of instruction. In my judgment, it is clear  Ms L did her best with the limited material she had available and was clearly entitled to reach the views that she did. 

23. By the time it came to the second hearing, the combination of the guardian’s views and the independent social worker’s views had caused Ms L to change her opinion radically, and whereas in her first report she was in favour of an attempt to introduce contact with her father through therapeutic work on the child’s behalf, by the time  the second hearing was reached, Ms L’s view had changed and she had come to the firm conclusion, in agreement with the guardian and the independent social worker, that contact between I and her father was not a practical possibility - and that for her to reside with him was even less so.

24. The result, of course. was that the mother did not see any need for Ms L to attend the second hearing.  The judge, however, thought that she should because she needed to be cross examined by the father.  The father was obviously very disappointed by Ms L’s change of view and, as I say, sufficiently disappointed by the eventual outcome to seek permission to appeal against it. 

25. However, the difficulty I think the mother faces in relation to this part of the order this afternoon is two fold.  The first is, as I say, that it is a perfectly conventional order;. The second is that the judge says in terms when dealing with the question of costs that he had found Ms L’s evidence helpful.

26. As I have already said, a parent may well say that he or she  dislikes the outcome of a report  - or, indeed,  the content of a report -  or even the information which may or may not have been given to the expert, but if the judge in the overall exercise of discretion finds a report useful and helpful, it seems to me in these circumstances the judge is perfectly entitled to make an order dividing the costs in the way that this particular judge did.  In those circumstances,  it seems to me that the order made by the judge in paragraph one of his order, namely that the costs of Ms L should be divided equally between the three parties, is one which was eminently within the exercise of his discretion and one with which this court cannot properly interfere. I would therefore dismiss the mother’s appeal in relation to that part of the case.

27. During the time I have had this case, I have found the second limb slightly more troubling. This is because it is an unusual feature in any form of Children Act proceedings, private or public, for orders for costs to be made against the parties as between mother and father.  Therefore I have looked with some care at the orders which the judge made in relation to the two hearings in February 2006. 

28. Indeed when I first had the application for permission before me in March, I took the view that the judge ought  to  be  given the opportunity, under the well known case of English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, to reconsider the question of costs, as he had the matter back before him.  I wrote to him a letter which I copied to the parents,  and he replied in a letter which also was copied to the parents. It is quite apparent from his letter to me that he had all the relevant factors in mind.  He bore in mind that what he was being asked to do was unusual.  He bore in mind that as between husband and wife or mother and father, costs were not normally ordered.  He also bore in mind that the father in relation to one of the two hearings had not, in his view, sufficiently proved that the mother was being intransigent about it,  and therefore he only made an order in relation to one of the two hearings to which I have referred.

29. The mother protests strongly against the order made by the judge in relation to the hearing on 21 February 2006.  She is by profession a doctor, a paediatrician.  At the material time she was employed in a hospital and she produced a letter from her employers indicating that she had telephoned in that she was unwell on the particular day in question.  The letter reads as follows:

“This is to confirm that the above named doctor who worked at the St John Radcliffe Hospital from 1 September 2005 to 28 February 2006 phoned in sick on 21 February 2006.  She was well to undertake an extended day shift on 27 February 2006 which she was supposed to have done on 22 February 2006.  Please find attached copy of the rota.”

30. The mother this afternoon has taken us very carefully through the transcripts of the various hearings, through a number of documents and also the letters which she wrote at about the time.  I remain puzzled because she has not explained why she did not take the opportunity to revisit the figures as invited by the judge in his order made on 28 January, but, be that as it may, what I have to do, I think, is to go back to the way the judge approached the matter and ask myself whether the judge was entitled to act as he did on the material that was available before him. 

31. First of all he gave himself, in paragraph 23 of his judgment, a very careful direction on the law as to the manner in which he should exercise his discretion and the circumstances in which he should exercise his discretion, bearing in mind in particular that it will be, as he said, rare in children’s cases to make a costs order, and that a criterion might be whether or not a party has been guilty of unreasonable conduct in connection with the case. That is the first important consideration. 

32. Secondly, the judge went on, in paragraphs 24 to 31 of his judgment, to explain why it was that he was going to make an order.  He found firstly that there was evidence in the form of a letter, which has not been shown to us today, from the father’s solicitors to the mother, dated 15 February, indicating that she had given advance indication that she was not going to attend the hearing on 21 because she felt she had not received sufficient notice of it. 

33. We have been shown today a letter written by the mother in relation to that but it does not directly address the issue of whether or not, unfortunately, she intended to attend court.  The judge also found that he got no assistance from a particular transcript, which we do have in our papers but which we have not looked carefully at.  He referred to a note of the hearing which had been produced on 22 September 2006, prepared by the father’s solicitors.  He said that gave him some assistance but he bore in mind, of course, that it was not an official transcript. 

34. The judge went on to say, however, and this, I think, is important, that there had been a telephone conversation between the mother and the solicitor acting for the father on 22 February, but the note showed that there was no mention of any illness by the mother on that date. Therefore, the judge concluded that  had the mother been unwell she would have mentioned it in the telephone call and the solicitor would have made a note of it. 

35. The judge went on to reject the mother’s submission that she told the father’s solicitors prior to the hearing of 21 February 2006 that she was unwell. He held that  she had not explained either when or how she told them.  He went on to say that:

“Notwithstanding that the mother may have telephoned in sick to work on 21 February 2006, as per the letter from the rota organiser, I find, looking at the other evidence that I have referred to, that it is more likely than not that the real reason why the mother did not attend the hearing on that date was because she was being uncooperative rather than she was unwell.  I find that this was unreasonable conduct by the mother.”

36. I have to bear in mind, I think, that HHJ Polden knew this case very well.  He had heard the substantive application in October 2007; he had listened to it carefully and he had had abundant opportunity to observe the mother and to look carefully into the facts.  Moreover this was a reserved judgment which he had put into writing after the substantive hearing, having given both parties every opportunity to place whatever material before him they wished to place.

37. As I said before, the judge gave the mother the benefit of the doubt in relation to a second hearing a few days later, accepting that on that occasion she had been unwell. He therefore refused to make an order for costs in relation to that date.  However,  in my judgment, having considered the matter carefully, I have come to the clear view that the judge was entitled to reach the conclusion which he reached at paragraph 29 of his judgment and which I have just read out.

38. This is, I think, a question  of fact. Despite the arguments we have heard this afternoon, I  take the view that the judge was entitled to find the facts as he did.  The judge was thus entitled to reach the view which he did about the mother’s attitude,, and in my judgment, having reached that view, he was entitled to make an order for costs.  The indemnity costs position is unusual, as I appreciate. This has concerned me – and,  indeed, it  concerned the judge. However,  the judge took the figure for costs directly from the letter and a schedule which had been prepared by the father’s solicitors, and the judge, as I indicated earlier, had given himself a very careful direction as to the law which was to be applied, recognising fully that an order for indemnity costs was an unusual one.

39. But above all, it seems to me that he was not only entitled to make findings of fact as he did, but that he had had the opportunity over an extended period to see and hear the mother in the witness box, and his conclusion that she had deliberately not attended the hearing in relation to which he made an order for costs, namely 21 February, is one which, in my judgment, having considered the matter now on several occasions, is one that was open to him and one with which this court should not interfere. 

40. The final argument put forward by the mother this afternoon was that her financial position is very serious and that she is not in a position to pay any of the orders which the judge has made.  In my judgment, several points can be made in relation to that.

41. The first is that even accepting the position that the mother is in financial difficulties,  - she having given birth to twins, I think, at the end of last year -  nonetheless, the mere fact that a person may not have immediate funds is no reason why orders for costs should not be made in principle if they are appropriate. 

42. Secondly, in relation to  JL, it is plain to me that this was a conventional order which the judge was entitled to make, and in any event, thirdly, both parties here are professional people.  The mother is a paediatrician, and no doubt the question of how payment is made, over what period and when, when payment is made, are matters which can be negotiated by her.  She plainly has the ability to conduct such negotiations.

43. So for all these reasons I have come to the view, having now considered the matter and having given permission to appeal, that the judge was entitled to make the orders which he made on 28 January 2008, and I would therefore dismiss this appeal.

Lord Justice Thorpe: 

44. I agree.

Order: Application refused; Appeal dismissed