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Generally speaking each party will be liable to pay their own legal costs incurred within court proceedings relating to arrangements for children, however there are circumstances where one party can be ordered to pay the costs of the other.
Section 51(1) of the Senior Courts Act 1981 provides that, subject to rules of court, costs shall be ordered at the discretion of the court.
In family cases, the relevant rule governing the award of costs is Rule 28.1 of the Family Procedure Rules 2010 which provides that: “The court may at any time make such order as to costs as it thinks just”.
In deciding what order (if any) to make about costs, the court will consider the following factors:
The overriding objective set out in the Family Procedure Rules, which includes dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues and save expense.
A Judge will also consider the following core principles that have been established in previous cases when deciding how to exercise their discretion on costs:
A useful summary can be found within the case of Re E-R (Child Arrangements)  EWHC 805 (Fam).
The case involved a child, whose mother had died, and the question arose as to whether she should be raised by her father or by family friends of her mother with whom she had been living with.
The family friends of the mother sought for the father to make a contribution of £25,000 towards their costs on the basis that:
The father opposed the application for costs on the basis that:
The Judge in reaching his decision stated that no element of any award of costs should reflect the fact that the one party has been broadly successful in the litigation, whereas the other has not. The Judge was mindful not to jeopardise the chances of the father and the family friends of the mother co-operating in the future. The Judge concluded that generally the father could not be regarded as having acted unreasonably in seeking for the child to reside with him and was satisfied that the father wanted what was best for his child and as her biological father, he had a respectable case.
However, the Judge felt that the father had in some respects in the litigation behaved unreasonably, for instance when he: opposed the Alaska trip, opposed the child attending the bereavement day, chose not to attend hearings and sought to replace a jointly instructed expert without good reason.
The Judge ordered for the father in this instance to pay £10,000 towards the costs of the mother’s family friends, this specifically covered the hearings dealing with the above aspects of the case and the additional costs incurred as a result of having to deal with the late evidence the father sought to add into the proceedings that was rejected by the Judge in it’s entirety.
Being a party to Court proceedings should not be taken lightly. There are strict rules and procedures that need to be adhered to which can be a minefield to navigate through without a lawyer. Seeking advice and representation from a specialist family lawyer is likely to help you minimise costs and provide you with support and guidance.
Taking matters to Court can cause entrenched positions and fraught emotions. Our family Court system is adversarial; it is a very rational, process-oriented, approach. The difficulty is that family issues can be substantially emotional with there being a need to tackle the underlying conflict to really resolve matters effectively.
It is therefore always worth considering the alternatives to Court proceedings such as mediation, the collaborative law process or arbitration to resolve disputes. These alternatives can be significantly more cost effective and quicker. They are also confidential and enable the process to be tailor made to work for the parties involved as opposed to the very structured and rigid Court process.