Children proceedings can be lengthy and emotional for most people, and whilst legal representation is often advisable, this can come at a considerable cost. It is, therefore, common for clients to ask whether any of their legal fees can be recovered from the other parties to the proceedings.

In family law, costs orders are rare, especially in cases involving children. The primary focus in these proceedings is the welfare of the child, and the courts are therefore reluctant to impose financial penalties that might exacerbate tensions between the parties.

Recovering legal fees in Children Proceedings: A Case Study

However, there are exceptional circumstances where costs orders may be made and once such recent example can be seen in the case of M v F (No 2) [2024] EWFC 394 (B).

The recent judgment in this case provided a clear example of the circumstances under which costs orders may be made in children’s proceedings. In this case, the mother applied to vary the child arrangements order concerning their 15-year-old son, “A”. The court found that her application was without merit and driven by her own interests rather than the welfare of the child.

She made unsupported allegations and engaged in covert recording, which the court deemed unreasonable and, in some respects, reprehensible.

The mother’s solicitors, also acted improperly by failing to comply with court directions and engaging in obstructive behaviour. Their conduct contributed to unnecessary costs, leading the court to order them to pay a portion of the father’s legal costs.

The court also provided a helpful summary of the general principles to be applied when considering whether costs order’s should be made in children proceedings:

  • No Order as to Costs: The default position in children’s proceedings is that each party bears their own costs. This principle is rooted in the desire to avoid discouraging parties from participating in proceedings that aim to determine the best interests of the child. The courts also recognise that imposing costs orders can reduce the funds available to meet the needs of the family and may deter parties from bringing legitimate concerns to the court’s attention.
  • Discretionary Power to make Costs Orders: the court has the discretion to make any order as to costs as it thinks just. However, this discretion is exercised with caution, particularly in children’s cases, to ensure that the welfare of the child remains the paramount consideration.
  • Unreasonable Conduct: The court may be more likely to make costs orders in cases where a party has acted unreasonably or in bad faith. This includes situations where a party has pursued baseless allegations, failed to comply with court directions, or engaged in obstructive behaviour. In some cases, costs orders may be made due to reprehensible behaviour by one of the parties. This includes actions that are dishonest, misleading, or otherwise egregious. The court must carefully assess the conduct of the parties and determine whether it warrants a costs order.

These general rules and the recent judgment in M v F (No 2) underscores the importance of reasonable litigation conduct in children’s proceedings. Whilst reasonable people can disagree, parties are still expected to engage in proceedings with a cooperative spirit, prioritising the welfare of the child above all else. Unreasonable conduct, such as pursuing baseless allegations or failing to comply with court directions, can lead to costs orders.

The Judgement also demonstrated the importance of having sound legal advice and representation, to guide parties through the legal framework, ensuring compliance with court directions and promoting reasonable conduct. In the absence of such guidance, parties may inadvertently engage in conduct that attracts costs orders.

Conclusion

It is clear that costs orders in children’s proceedings are rare and typically reserved for cases involving unreasonable or reprehensible conduct. The primary focus in these cases is the welfare of the child, and the courts exercise their discretion with caution.

However, the recent judgment highlights the circumstances under which costs orders may be made and highlights the importance of reasonable litigation conduct and sound legal advice.

At Fisher Jones Greenwood, our team of family law experts have a wealth of experience in dealing with children matters and provide clear advice to guide you through this process.

If you would like advice about children or family disputes, please contact our Family Team at 01206 700113 or fill out our online contact form.