When can legal fees be claimed in childcare arrangement cases?

In a recent landmark family law case, the President of the Family Division and Judge, Sir Andrew McFarlane upheld a father’s cost application for his legal fees to be paid by the mother and other intervening parties.

Here, we examine how costs orders and awards are handled in private family law cases.

How common are costs awards in private law children proceedings?

Costs awards are particularly rare in childcare arrangements cases. Usually, the starting point is that both parents will pay their own legal fees when bringing or defending an application — regardless of the outcome. It’s only in exceptional circumstances that involve a party’s extreme and/or adverse conduct and reasonableness that can give rise to costs orders being made.

Costs awards are more common in civil court cases where there is a claimant against a defendant. Whoever ’win’s when an application or claim is made to court is usually awarded an order by the court for their legal fees to be paid by the party who has ‘lost’.

It is for this reason that family lawyers can get particularly excited when new case law arises that refers to costs orders and awards being made in private law children matters.

How did the court respond to the costs application?

This case involved a mother and father as well as two intervenors. One intervenor was an expert instructed in the main appeal proceedings. The other was the Association of Clinical Psychologists (ACP) — an independent organisation that represents practitioners. The Judge was particularly critical of the unusual approach made by the ACP which was given permission to intervene in the appeal proceedings.

On 10 May 2023, a costs application was made by the father and the expert following the mother’s appeal of an earlier decision. The appeal was originally dismissed by Sir Andrew McFarlane in February 2023. The Judgment was handed down on 14 August 2023.

As a result of the mother’s appeal being dismissed, the father made an application for his legal fees to be paid for by the mother — or if unsuccessful, for the costs to be paid fully (or in part) by the ACP.

When the court is faced with an application for costs, it must examine at all circumstances of the case.

These include:

• the conduct of all parties involved (including the intervenors in this case)
• whether a party has succeeded in part of its case (they do not need to have succeeded in the entire case)
• whether any party has made an offer to settle which has been brought to the court’s attention.

The court can look at a party’s conduct both before and during the proceedings — and whether they followed any pre-court action protocols. It can also consider whether or not it was reasonable for a party to raise, pursue or contest a specific allegation or issue, as well as the manner in which the other party defended it. In addition, it can look at whether or not a claim has been exaggerated.

Unreasonable conduct as a deciding factor

The conclusion of the costs applications in this case was as follows:

1. The mother was ordered to pay the father’s costs as the court considered her conduct to be unreasonable. The father had also given her sufficient warning that he would be making a claim for his costs if she pursued the appeal and was unsuccessful. However, she wasn’t ordered to pay all of the father’s costs — only half in the sum of £26,176.79.
2. The mother was also ordered to pay the expert intervenor’s costs in the sum of £20,000. The mother had directly attacked whether the expert was qualified and this formed the main issue in the mother’s appeal. Once again, the court only ordered that the mother should pay half of the expert's costs.
3. Finally, the ACP was ordered to pay a contribution towards the father’s and expert’s legal fees amounting to £10,000 each (£20,000 in total). This was due to the way in which the ACP had conducted itself in the proceedings, which serves as a stark deterrent to other organisations that may consider intervening in family court proceedings.

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