In re J (Children) (Costs of Fact-Finding Hearing): CA 26 Oct 2009

Mother and father disputed contact. The district judge held a fact finding hearing to resolve allegations of violence made by the mother and denied by the father. Most of the mother’s allegations were held to be established and she sought the costs of the hearing. The district judge refused her application and made no order as to costs. The mother appealed to the county court. She invited the judge to draw a distinction between the fact finding hearing and that part of the hearing that related to the welfare of the children. The judge declined to do so. He held that the father had not acted unreasonably in giving evidence in opposition to the mother and dismissed her appeal.
Held: The circuit judge had been wrong not to adopt a ‘compartmentalised’ approach. The husband had not acted irrationally and a proper exercise of the court’s discretion did not depend upon why he chose to deny allegations that he must have known were true.
Wilson LJ said: ‘The order for a bespoke fact-finding hearing was surely to consign the determination of the mother’s allegations into a separate compartment of the court’s determination of the father’s application for an order for contact. It went almost without saying, although the circuit judge chose to say it, that the optimum outcome of the contact application could be determined only by reference to the findings made at the fact-finding hearing; but the effect of the direction for a separate fact-finding hearing was that the costs incurred by the mother in relation to that hearing can confidently be seen to be wholly referable to her allegations against the father. There was, in that sense, a ring fence around that hearing and thus around the costs referable to it. Those costs did not relate to the paradigm situation to which the general proposition in favour of no order as to costs applies.’

Judges:

Ward, Wilson LJJ

Citations:

[2009] EWCA Civ 1350, [2010] 1 FCR 135, [2010] Fam Law 234, [2010] 1 FLR 1893

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedIn re T (A Child) CA 18-Nov-2010
Paternal grandparents appealed against a refusal to make an order for costs in their favour against the local authority. The refusal was made in the course of care proceedings brought by the local authority in relation to two grandchildren. The . .
CitedIn re T (Children) SC 25-Jul-2012
The local authority had commenced care proceedings, alleging abuse. After lengthy proceedings, of seven men and two grandparents, all but one were exonerated. The grandparents had not been entitled to legal aid, and had had to mortgage their house . .
Lists of cited by and citing cases may be incomplete.

Children, Costs

Updated: 11 August 2022; Ref: scu.384356