Costs in Child Custody Applications

General Principles

As is made clear from the extract from the judgment (below) the ‘usual order’ regarding costs in children’s proceedings is ‘No Order’ – in other words each side bears its own legal costs. However, it should always be born in mind that the question of costs in any case is always discretionary and is wholly in the hands of the judge. The following example – taken from TPL v. WYY formerly known as WYY [2012] HKFAMC 40; FCMC 15332/2011 (3 October 2012) makes clear the Family Court does not have its hands tied in circumstances where the court thinks that one of the parties has been caused unnecessary expense – a fortiori where, as in this case the mother – was legally aided.

The facts of this case outline a number of wider points of general application in child custody applications (including expert comment on parental alienation from Dr. Lynett Levy). On the question of costs, here, it is a moot point to suggest that the father perhaps ought to have considered the expert evidence and recommendations of both the Child psycologist and the Social Welfare Officer (SIR) before ploughing on with what looks like a pretty hopeless application. Clearly in this case father was privately funded – again it is a moot point whether a party in similar circumstances, with expert reports against him, would be allowed to continue such an application using public funds.

TPL v. WYY

Costs

Regarding the question of costs, Mr Chow, Counsel for the Mother, asked for costs against the Father. The starting point in all civil proceedings is that costs follow the event subject to the discretion of the court – Re Elgindata (No. 2) [1992] WLR 1207. However, in family cases this general rule is more readily displaced and especially where children are concerned. Generally in children’s cases it is usual for there to be no order as to costs. The Court retains a wide discretion to ensure that a party is not penalised simply for making an application in an attempt to show the Court what is in the best interests of the children. Consequently the general practice of the Courts is not to order costs. The underlying rationale to the costs principle in children’s matters was explained in Sutton London Borough Council v Davis (No. 2) 1994] 2 FLR 569 at 570H-571C – where Wilson J states that:

Where a debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them.

But the court retains its discretion to make a costs order against the unsuccessful party in appropriate cases. Wilson J continued to say in the case of Sutton Borough Council (ibid) as follows:

… But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable (see Havering London BC v S [1986] 1 FLR 489 and Gojkovic (No 2) [1992] 1 All ER 267 at 271, [1992] Fam 40 at 60). (emphasis added)

As to the kind of conduct that would justify a departure from the general rule, it has been suggested that the unreasonable conduct which might justify an order for costs was not unreasonableness in relation to the child concerned but unreasonableness in the conduct of the litigation. The Court of Appeal upheld the decision of Wilson J in R v R (Child) (Legal Aid: Costs) [1997] 2 FLR 95 stating that:

… Although there was a general practice to not order costs in cases concerning children, courts retained a discretion to do so and in exceptional circumstances might be justified in ordering costs. It was unnecessary and undesirable to attempt to limit or place into rigid categories the cases in which courts might order costs, but amongst those cases would be those where a party had been guilty of unreasonable conduct. The unreasonable conduct which might justify an order for costs was not unreasonableness in relation to the child concerned but unreasonableness in the conduct of the litigation.

If the applicant who goes beyond the limit of what is reasonable pursues a totally hopeless application, it may be regarded as unreasonable conduct that would justify a costs order against him. In Re G (Costs: Child Case),  [1999] 2 FLR 250 at 252G – Butler-Sloss LJ had this to say:

If this judge in this case had found that this father had behaved unreasonably in the litigation and had gone beyond what many fathers do, seeking orders which are hopeless, the point will come at which pursuing a hopeless application becomes unreasonable. But hopelessness and unreasonableness are not necessarily the same thing. Indeed, particularly where there is a litigant in person, a degree of generosity towards a litigant may be more appropriate than to a litigant which is on legal aid generally advised by counsel and solicitors as to the extent to which they should continue to litigate … It seems to me that the case of R v R does not change the normal situation that it is unusual to order costs, although it will be appropriate to order costs when a parent, even a litigant in person, goes beyond the limit of what is reasonable to pursue the application before the court. (emphasis added)

Therefore, the main issue now is whether the Father has behaved unreasonably in the conduct of his application for custody of the Children that would justify a costs order against him.

In the present case, Mr Chow, Counsel for the Mother, submitted that the Father has all along been pursuing the unfounded and purely speculative allegation of coaching/parental alienation against the Mother. I agree that there is no sufficient evidence to prove that the Mother had actually coached the Son.

More important is … the Father completely deprived the Court and Ms. Wong of the opportunity to assess the role to be played by the Father’s girlfriend in relation to taking care of the Children.

Besides, both Ms Wong in the social investigation reports and Dr. Levy in the 1st Psychological Assessment Report do not recommend the Court to grant care and control to the Father. Nevertheless, he still fought for sole custody of the Children at the beginning of the trial and only subsequently, changed to ask for joint custody. Throughout the trial, he still maintained that he should be granted care and control of the Children. In my view, what he should seek from the Court is a proper order as to how to implement the 17 recommendations made by Dr. Levy. However, he did not do so.

In my judgment, the Father has behaved unreasonably in the conduct of his application in the sense that he goes beyond the limit of what is reasonable to pursue this totally hopeless application before the court. I consider that no generosity shall be given to him as he is not a litigant acting in person but throughout the proceedings well legally advised by his solicitors and Counsel. I also bear in mind that the Mother is legally aided and funded by public money. Hence, it is justifiable to make a costs order against the Father. I now make a costs order nisi that he shall pay costs of and incidental to the custody application to the Mother, including all reserved costs in relation thereto, to be taxed if not agreed and that the Mother’s own costs be taxed in accordance with Legal Aid Regulations. Such order nisi shall become absolute unless any of the parties apply to vary the same within 14 days by way of Summons.