Marilyn Stowe Blog

Costs orders in children cases: a solicitor’s dilemma

Over the past month there has been a number of published judgments relating to children. You don’t have to cut too far through the legal jargon before the real-life human dramas emerge. Recently there have been cases about families torn apart when surrogacy and adoptions have gone tragically wrong. Reading about them I have come to appreciate, more than ever, the genuine care, wisdom and judgment of our senior judges, who have to deal with these terrible cases.

A specialist child lawyer, who is faced every day with resolving problems involving a child, needs a great deal of knowhow, sensitivity and communication skills. Children are vulnerable. As adults we are older, stronger and wiser, and sometimes we allow children to be our Achilles heel.

As a lawyer who deals primarily with finances on divorce, I am used to wearing my “professional mask” and not letting my feelings get the better of me. It is rare for me to become emotionally involved in any case. But perhaps that is because  I don’t routinely deal with children cases, preferring instead to hand those cases to our firm’s dedicated Children’s Department.

So what is a lawyer supposed to do when faced with a protracted children case? Would I have acted differently to a lawyer in one recent case? I don’t know that I would.

Consider the situation in the case of HH v BLW [2012] EWHC 2199 (Fam), about which John Bolch has already posted on Family Lore:

The case of HH v BLW [2012] EWHC 2199 (Fam), reported today on Bailli, deals with the rare instance of a costs order made in private law children proceedings. It is something of a sad case, with the costs awarded against the father when the court made no order on his contact application, after the CAFCASS officer ascertained that the child did not wish to see him. It is also somewhat sad that the order was made in circumstances where the mother’s solicitor had been firm to the point of being aggressive, whereas the father’s solicitor had been far more conciliatory, proposing mediation to avoid the need for an application. 

 I have a different take. A daughter is born to a wealthy husband and his much younger wife. By the time the child is five the marriage is fractured and the parents divorce. The child goes to live with her mother but continues to see her father and his family. There is a disparity in the finances between mother and father: the mother struggles to earn her income; the father earns £150,000 per annum and has savings of £350,000 besides. He pays £900 per month in child support for his daughter.

By the time the daughter is 14 she displays behavioural difficulties at home and school. I imagine the mother, being her primary carer, bears the brunt of dealing with these problems, and life for her is not a bed of roses.

When she is 15, the daughter decides she wishes to stop seeing her father. She describes him as controlling and she also wants to stop seeing other members of his family. She wants the pressure she thinks is coming from him, off her during her GCSE year.  So she gets her mother to phone her father and tell him. I expect it won’t have been a happy conversation, but the mum is caught firmly in the middle.

This is all very unfortunate, but think about it: we have all of us been 15 once. Most of us will have had issues with our parents. Given the daughter’s other problems, probably the best course of action at this stage would be for the mother and father to agree that the father would simply back off and let the daughter have the breathing space that, rightly or wrongly, she wanted.

However the father, described by the daughter as controlling, refuses to back off. He can afford it, so he goes to see solicitors. He invokes the assistance of the court to help him obtain a court order for his daughter to try to force her to see him. At the same time he offers the mother mediation to try and resolve the matter. His solicitors are seen at first sight to be more conciliatory in offering that route.

Now consider this offer of mediation to the mother. Mediation is supposed to be an amicable way to resolve issues between two parties. How will it possibly work when one party is used to being in control and refuses to relinquish it, even when he is told point blank by his daughter that she doesn’t want to see him?  Furthermore, how will it work at all, unless the mother is also prepared to force the 15-year-old daughter, in addition to all the other pressures in the girl’s life, to see the father she plainly didn’t want to see?

So is the offer window dressing? I suspect that is exactly how it is seen by the mother and her solicitors, and expensive window dressing at that. The offer of mediation is rejected. As a result, the other solicitor is seen as aggressive.
I also suspect that in truth, the mother has no choice. Presumably she faces having a hysterical teenager on her hands. She rejects mediation and is left facing a court application in the Principal Registry in London. She can ill afford this. The mother then incurs legal fees of almost £2,500 and has to take her daughter to court, to prove that the teenager does not want to see her father, in order to have the application for contact refused.

At this point her solicitor, who has previously written very firmly, time after time, pointing out the inappropriate nature of the application and making her client’s position crystal clear, applies for her client’s costs – and is successful.

And perhaps it is my imagination at work, but I expect that the solicitor, portrayed as aggressive and direct, will have had to deal with a distraught client cast as the piggy in the middle. The mother could ill afford to spend money with lawyers but believed she had no choice, given that the father had his own lawyers on the case. So how else could the mother’s solicitor have communicated her client’s instructions? Back off was the message. Back off – or when this case fails, as it is bound to, we will ask your client to pay the costs because you are acting unreasonably.

Even at this stage, however, the father refuses to give up. He applies for leave to appeal on the basis that the usual order in family cases is no order. He has paid his own solicitor, but objects to paying his former wife’s solicitors for their robust opposition to his application and the refusal to mediate. His argument is that he should not have to pay the costs, because he was entitled to make his application and does not believe it was unreasonable.

In the High Court, Mr Justice Holman is thus faced with a dilemma. In such cases, there is not usually an order for costs. Instead, each side pays their own. So what does he decide?

Read the judgment and you will note that Mr Justice Holman is sympathetic to the father. He doesn’t think the father has been unreasonable. However he leaves the costs order untouched because he takes the view that the costs would be disproportionate if the case continued to the Court of Appeal.

I think this is a wise judgment, which satisfies both parties. The father is placated because his conduct has not been declared unreasonable; instead, it is said about the lower judge that he “did appear unfairly to criticise the father”. The costs order is kept in place, although the judge reinforces the general view about no costs orders.

Personally, I’d like to see a greater number of costs orders in family cases. I’d like to see more frequent applications for costs in relation to hopeless cases – and less criticism for solicitors who are doing their best for their clients. Finally, mediation is all too frequently presented as a cure all when in reality, it is only suitable in certain cases. I would like see this attitude change too.