Court proceedings relating to children – who should pay the costs?

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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.

What is the legal basis for a costs order?

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”.

How does the Judge decide whether a costs order is justified?

In deciding what order (if any) to make about costs, the court will consider the following factors:

  1. All the circumstances, including the conduct of all the parties. The conduct of the parties includes:
  • conduct before, as well as during, the proceedings and in particular the extent to which the parties followed any relevant pre-action protocol;
  • whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
  • the manner in which a party has pursued or defended their case or a particular allegation or issue;
  • whether the party that succeeded in making the application, in whole or in part, exaggerated their case.
  1. The overriding objective.

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.

  1. Previous cases.

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:

  • There is a wide discretion in relation to the award of costs.
  • Costs do not ordinarily follow the event in family proceedings, as they do in other forms of civil proceedings (i.e. in family cases if you “lose” you don’t pay the other parties costs).
  • Where the debate surrounds the future of a child, the aspiration is that in their outcome the child is the ‘winner’ and indeed the only ‘winner’. The court does not wish the possibility 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 their costs and another as the unsuccessful party obliged to pay them. It is important for the parties to be able to work together in the interests of the children both during and after the proceedings. Children’s lives do not stand still, stigmatising one party as the ‘loser’ and adding to that the burden of having to pay the other party’s costs is likely to jeopardise the chances of their co-operating in the future.
  • It can generally be assumed that all parties to the case are motivated by concern for the child’s welfare.
  • An award of costs in family proceedings may be justified if it is demonstrated that the conduct of the party (before as well as during the proceedings and/or in the manner in which a case has been pursued or defended) has been “reprehensible or unreasonable”.
  • Orders for costs between the parties may diminish the funds available to meet the needs of the family, although not making an order for costs may have the same effect.

A case example

A useful summary can be found within the case of Re E-R (Child Arrangements) [2016] 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:

  • Throughout the proceedings the father had made numerous unsuccessful applications (or had unsuccessfully opposed applications) including: opposing the child attending a bereavement day at the local bereavement charity as it would interfere with his contact schedule, opposing an application for the child to go on a trip to Alaska for her maternal cousin’s wedding, unsuccessful applications to substitute an alternative expert and other applications for disclosure.
  • The father had failed to attend hearings due to his self employment work commitments.
  • The father had significantly increased the overall costs of the proceedings “unreasonably” and “reprehensibly” by: introducing evidence at a late stage and launching a full-scale assault on the instructed expert’s integrity and professionalism.
  • The father had refused to contribute his one third share of the expert’s costs.
  • The father had funds available to him following the sale of a property.

The father opposed the application for costs on the basis that:

  • He was entitled to have taken the stance he did on the applications.
  • He remained convinced that he was correct in his assessment of the professional witnesses.
  • He had limited funds with which to make any payment of costs.

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.

How can you save money on costs?

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.

70 responses on “Court proceedings relating to children – who should pay the costs?

  1. My daughters ex husbands solicitor only sent 1 bundle of statement instead of 3 for magistrates so they didn’t hear the case of term time access only Christmas access. Both sides had Barristers. We’ve got to come back in a couple of months. Surely she should legally have her next costs paid by them as it’s definitely not her fault. The Magistrates said in court the delay was because of the lack of documents. Please surely there is a case SOMEWHERE that this has happened with the costs being paid by the solicitor at fault? Thank you. C.

    1. Specific advice in relation to your case is beyond the remit of this blog post. In certain circumstances where a hearing cannot be effective due to one party failing to file the documents that have been directed by the court it can result in a costs order being made against the person who has not filed the documents. That should have been addressed at the hearing itself by your daughter?s barrister. Sometimes a ?costs in the case? provision is recorded within the terms of the order for costs to be determined by the court at a later date.

  2. Hi I was in magistrates court yesterday for a half a day final hearing regarding child arrangements for my daughter. The applicants solicitor had only prepared one bundle for the magistrates giving the other two in on the morning of the hearing. As the court listings were full and the magistrates had not had time to read the bundles we were told that we needed to reschedule to the next available date of February 22nd and come to some arrangements about contact until then. Due to the error of the applicants solicitor I now have to pay for my solicitors and barrister for yesterday and also for my solicitors costs up to and including the February hearing and also my barrister costs up to and including the next hearing. This is extremely frustrating as I was hoping the matter would be sorted yesterday as this is prolonging the court proceedings for my daughter who is unfortunately aware of the situation. Is there anyway in which my costs could be paid by the applicant or his solicitor as it was this error that has caused additional costs?

    1. That sounds like a really frustrating situation. It is not possible to provide specific advice in relation to your case, as that is beyond the remit of this blog post. In certain circumstances where a hearing cannot be effective due to one party failing to file the documents that have been directed by the court it can result in a costs order being made against the person who has not filed the documents. You should check with your legal representatives whether the issue of costs was addressed at the hearing if you are unsure. An order for costs may have been made, if not sometimes a ?costs in the case? provision is recorded within the terms of the order for costs to be determined by the court at a later date.

  3. My daughters ex has taken her to court for overnight stays of their son, he has told his father he does not want to do this, the ex has taken my daughter to family court to get son fir overnight stays, a section 7 was ordered, the son had long discussion with caffcass officer, who confirmed in her report that he did not want overnight stays and recommended that father and his family should stop coercion of the boy. The father signed a court papers stating he had not had access to the boy FOUR days after he had acess with him. My daughter sent paperwork into the court confirming, with signed witness statements that he had seen the boy and had acess. The court lost my daughter’s papers so these papers were not produced in the first court session in September or the second session in November. My daughter made representation to the court and they admitted by Email that the papers were lost but had now been found, by email, a few days ago.
    What a different outcome there would have been if her papers had been presented at the FIRST court hearing.
    The final hearing is next week and several thousand pounds has already been spent.
    Is there any redress against the court, can anthing be done about him lying and can he be asked to pay all costs for him putting in court papers with a deliberate lie?

    1. What a terrible situation your daughter seems to be in. If your daughter wants to raise a complaint about how the case has been handled by the administrative staff at the court she should follow the complaints procedure set out on the government website. Whether there is any redress that can be taken against your daughter’s ex will depend on the circumstances of the case, for instance if he has lied within court papers that have been signed with a ‘statement of truth’ he would be in contempt of court, which can be punishable by fine or imprisonment. Your daughter should seek urgent legal advice on her specific circumstances given the imminent final hearing, she can find a specialist lawyer local to her online. I hope this assists you both.

  4. My partner has regular regular contact with his son every other weekend for from Friday to Sunday, it has also been agreed that he can have his son half of the school holidays apart from summer. He has asked to have his son for two weeks but his ex says he can have him for 2 weeks but in 1 week blocks. They have a date set for a final hearing but she is now saying if he doesn’t settle out of court she will file for fees, what are the chances of this?

    1. Hi Louise, thanks for your comment. It is unusual in child arrangement proceedings for the court to order one party to pay the other?s costs. Such orders are generally only made if one party has conducted themselves poorly within the litigation, for instance failing to file their evidence in a timely manner and therefore causing the other to incur unnecessary costs. I can?t comment on whether costs are likely to be ordered in your partner’s case as I do not know the full background.

      That said, if the only issue in dispute is whether his son should stay with him for two consecutive or 2 non-consecutive weeks your partner may want to think about whether it is proportionate for this to be determined in a final hearing. If your partner and his ex are represented they will incur significant legal costs. They should also bear in mind the impact that a contested final hearing may have on the family dynamic and their ability to co-parent their son together effectively in the future as the process is incredibly polarising. Agreements reached between parents have been shown to have more chance of success than those imposed by the court.

  5. I generally see my children on alternate weekends, but have had to request a family court hearing as my ex-wife regularly flouts the guidelines of the court order and has broken access agreements over the last 2 years. She is also now applying to move my children out of the area which will reduce my access. She has the financial support of her family and always turns up ‘fully loaded’ with solicitors and a barrister, as she did in the recent hearing.

    I have no funds for defense and have always had to represent myself, yet the judge made the decision for a Costs Order in this instance, which I find heartbreaking. I am clearly representing myself and she is clearly paying up to the hilt for representation, so I’m damned if I win and damned if I lose… I understand the concept of why judges go down this route but, in my situation, there is only one loser. I face the possibility of having to withdraw from this process, at the risk of not improving the situation, as I cannot afford to pay her costs and yet I will then have to pay her costs to date anyway! Surely this flies in the face of why judges put these orders into place? Is there any way of appealing against the Costs Order?

    1. I am sorry to hear about your situation. We are however unable to provide specific legal advice within this blog post, whether you have grounds to appeal is dependent upon the individual circumstances of your case. You may find the following leaflet on the court website helpful as it sets out information about what you need to do if you want to appeal https://formfinder.hmctsformfinder.justice.gov.uk/ex340-eng.pdf.

  6. Ive had a problem, i signed an incomplete court order made up by M’s sols. I was concentrating on the ‘prize’ of her agreeing to meet half way. However the M has stopped me from picking up C from school and will not enter into CA and refers to the CO every time. The sols have sent this to Court (with extra sections not signed), i’ve tried to stop it but the judge has seen a signature and made a consent order. The Ms sols gave me no opportunity to discuss the full CA they typed up. They also gave me a very short (half day) deadline to sign otherwise arrangements will revert to before the previous hearing. I get what i want in terms of visits but cant pick him up from school, and am at her mercy (which she has form from in the past-stopping nursery and school for even just rare pickups). Case has been closed yet i haven’t agreed all points, the court hasnt replied to emails. The other side did not reply when i told them it is wrong and we need to agree pick ups. I foresee more years being bereft of my amazing son.

    1. We are sorry to hear about your situation. We are not able to provide specific legal advice within this blog post, a copy of the order and full details of your circumstances and review of the court proceedings would be needed to provide you with the advice you require. You can find details specialist lawyers that are local to you online at http://www.resolution.org.uk/.

  7. My niece went to court last year for child access, in which she agreed to everything that her ex-partner wanted. I.e . every other weekend & week-long sleepovers during every school holiday, even Christmas eve/day last year, ( which left her heartbroken). He also has access on birthdays. He now wants more access during the summer holidays (he already has 2 weeks for this) and is threatening court again if she doesn’t agree. She can’t afford to keep going back to court to change an already reasonable order. Is there any help available when, through no fault of her own, she is forced to hire solicitors and attend court, incurring costs? Or how can she get or insist on some mediation or arbitration pre-court to try to avoid another case.

    1. A child’s needs will change over time and that can often mean the arrangements require review and updating. It is therefore only in very rare circumstances that someone can be restricted from making court applications relating to a child. If an application is made it will be down to each parent to cover their own cost of that. It is unlikely based on the information you have provided that your niece would be able to seek for her ex partner to pay her costs if he makes a further application to court (unless any of the factors/principles as set out in the blog justify a costs order being made). Before an application to court can be made though there is a prerequisite for attempts to be made to resolve matters through mediation. If they can’t resolve matters through mediation then arbitration can be a much more effective way of resolving matters rather than having to go back to court.

  8. Hi I have a residence order against my ex partner it went to court he only turned up once but emailed the courts saying can?t make it give some excuse I have my daughter most of the time he has her every other weekend shared school holiday which we have to agree to he now dictating to me when he has her even he dosent like her birthday he picked her up a certain time so I couldn?t spend that much time on her birthday and saying it?s his turn to have her next weekend when it isn?t and taking her abroad without my permission booking holiday without discussing it with me now I?m the one with the court order not him so he breaching court order but I take it back to court it cost me not him I?m. Not in the wring he is so were the justice in that he walking all over me I?ve smresdy sent him a letter why should it cost me when i only work part time yet he in jobseekers it?s wrong

    1. You should seek legal advice in relation to your situation. In order to advise a lawyer will need to review any court orders that are in place. If you are looking to make an application for breach/enforcement of an order depending on the specific circumstance of your case your ex partner maybe liable for the costs of such an application. Please contact Family Law Partners if you want to book a consultation with one of our lawyers to advise, if we are not local to you and you want to see a local lawyer you can find one online.

  9. My partners ex is stopping him seeing his daughter on a Wednesday which has been the arrangement for the last 3 years because she wants him to either leave work at 2.30pm or pay an after school club which is ?10.00 per session, he use to pick her up at 6pm from the after school club but now unless he agrees he can no longer see her, he can not loose half a day in hours and pays good maintenance monthly , she is now threatening us with family court, can a court make you agree to her new rules.

    1. If an application to court is made to determine matters the court will need to review the overall circumstances of the case and make a decision based on what is in your partner’s daughter’s best interests. Your partner and his ex should in the first instance try to see if they can work out an agreement together that ensures the daughter’s best interests are met, if they can’t work this out on their own they should try mediation. Details of mediators can be found online here.

  10. 1. If someone withdraws from proceedings having written their reasons to the court but does not attend subsequent hearing, and has a pattern of not attending hearings/engaging with court orders/interventions is it conceivable that this in itself could warrant a barring order against further applications?
    2. If a barring order is not granted and permission to withdraw from proceedings is granted; if proceedings were reinitiated in future would it be possible to appeal out of time fact finding and final hearings if/when proceedings recommenced? (This would be the position of proceedings when applicant withdraws.)
    The applicant is considering withdrawing due to anxiety/depression as a result of having findings of fact against them and feeling a victim of DA/harassment and lack of faith in the court process.

    1. The child’s welfare is paramount when deciding whether there should be a barring order. There is a wide discretionary power to bar further applications. The court have to weigh up and consider all relevant factors. An important part of that is weighing up includes looking at whether: there is serious risk to a child; a history of repeated and unreasonable applications; the strain of applications causes unacceptable stress to a primary career; and the intrusion into someone’s rights to bring proceedings in matters relating to a child. The discretionary power is exceptional and not the norm, it is used sparingly. The degree of restriction of the bar has to be proportionate to the harm it seeks to prevent.

      There are strict rules and formalities around applying for a barring order and the rules with regards to appealing out of time are also complex. You should seek legal advice on the queries you are raising. You can contact Family Law Partners to arrange an initial consultation in Sussex or Hampshire or search online to find a lawyer local to you on the Resolution website.

  11. Hi, my ex partner is taking me to court because he says that he is not seeing our 10 year old son enough. i now live 2 1/2 hours away with my new partner and son, when we were moving my ex partner was really adamant that we continued our sons football as much as possible and that we should try to get him into an academy. now he plays/trains 5/6 times a week and football is he’s life, i always tell my ex partner that he can come and see our son whenever he likes. plus see him in most half terms and summer holidays (he would still have the odd football training camp so would have to revolve around that still)

    i just wondered if he does have an argument? and who will be liable for the court fees?

    1. In order to determine what time your son should be spending with your ex partner the court will consider what is in your son’s best interests and take into account what is known as the ‘welfare checklist’ which is: The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); the child?s physical, emotional and educational needs; the likely effect on the child of any change in circumstances; the child?s age, sex, background and any other relevant characteristics; any harm which the child has suffered or is at risk of suffering; how capable each of the parents, and any other relevant person, is of meeting the child?s needs. With regards to the costs in relation to the court proceedings generally speaking you will each pay your own costs, unless any of the circumstances set out in the blog post arise. I hope this assists you.

  12. My ex and I share 50:50 care of our two under-18 children. I hold the entitlement to Child Benefit. However as a higher-income earner I don’t receive CHB. My ex is on a much lower salary. He wants to claim CHB.
    I have talked to Child Maintenance Services, and with 50:50 shared care neither parent is obliged to pay maintenance to the other. However if my ex gets the CHB entitlement and then puts a CMS claim, and says that he has more than 50% care, I understand that I would need to get a court order to prove that I do have 50% care.
    Is this correct? and if so, how much might that cost me? I don’t want to be unfair to my ex, but I have just paid him ?50k settlement and don’t want to expose myself to any more financial (or legal or emotional) risk.
    Many thanks

    1. If there is equal shared care no child maintenance is payable under a CMS assessment. However, if one parent receives child benefit then there is a rebuttable presumption that parent is providing care for the child and should receive child maintenance. In your situation this would mean that if your ex receives the child benefit and made an application to the CMS you would have to produce evidence that you are providing day to day care to a greater extent than your ex – often this evidence is by way of a court order defining what the arrangements for the children are. You should seek legal advice from a specialist family lawyer as to your options to limit any financial, legal or emotional risk.

  13. My Ex has taken me through a full child arrangements court case. All based on her allegations of physical and mental abuse . She involved the police who took no action . A section 7 was produced that clearly states there is no risk of harm or abuse and I was immediately given partial access to my son after almost 6 months. The case on my request is going to a final hearing as she refused to allow my son what he told cafcass that he wants ie equal visitation to us both. She continues to cite abuse albeit CAFCASS say it hasn?t occurred etc and she chose not to have a fact find hearing to challenge this .This is all documented in the recitals . This has led to huge legal costs that I have had to find based on her initial and ongoing false allegations. Is this considered unreasonable behaviour and something that can be bought to court for consideration of claiming costs

    1. Whether you can claim costs is very fact specific. It seems from your comment as though you have had legal representation so you should in the first instance seek advice from your legal team as to whether the circumstances of the court proceedings would enable you to claim costs against your ex.

  14. My ex is taking me to court for child arrangements order, and prohibited steps order. The child is 12 and has been refusing to stay overnight with him and sees him roughly for a few hours during the day every other weekend. HIs allegations include that I am obstructing contact, that I have been physically abusive to him and to our child, that I take the child out of the country without his consent and that he has been the sole carer of the child up until the age of 4, and after separation in 2013 I have been brainwashing the child against the father. None of this is true and I have evidence of his consent to travel at all times. All his allegations are false, in face he had been physically abusive towards me, and he has also exercised controlling behaviour including financial and psychological over the years. I have not refused contacting our child but, because he has been inconsistent with his contact, their relationship is problematic and she feels unsettled to stay with him for long periods. He blames me for it, instead of trying to improve on his relationship with his child. Now he is also taking me to court for reasons that 1) are not true 2) I have not resisted contact but the child has. Can I claim costs based on the false allegations and his failure to implement the consistent schedule of contact for the child to settle it, which we had agreed at mediation back in 2016? Thank you

    1. It sounds as though the court may require a fact finding hearing to determine the truth of the allegations to determine matters. A separate Guardian may need to be appointed to ensure the voice of your child can be heard within the proceedings. If the court find the allegations untrue and your ex’s application completely unfounded then they may be able to place a bar preventing him being able to make further applications in the future. We are not able to provide specific advice within the scope of a blog comment. We recommend you seek legal advice, you can contact our specialist team to arrange an initial consultation.

  15. each time my ex partner takes me to court for an child arrangement order does he have to pay for the court room, judge, baliffs to serve me etc

    1. The person making the application to court is liable in the first instance to pay the court fee and costs of serving any paperwork on the respondent. The court can however in certain circumstances order for the respondent to pay such costs back to the applicant.

  16. My partner has a court order for contact with his child which was agreed last April. Most was agreed by both parties prior to hearing only Christmas was decided by court. Part of the order is that school holidays which he has half of need to be agreed by a certain date in writing. He has tried to do this following the split of holidays that was agreed by both parties in the order and she has responded saying that she refused to communicate about holiday unless he agrees to a change she wants to make. He has taken legal advice and his solicitor has sent a letter but his ex has yet to respond. If we do have to return to court for breach of order can we try and claim some of the cost back from her as she has written that she refuses to communicate? It seems wholly unfair that dads have to pay court costs to have fair contact with their child that wants to spend time with them when the mother does not. She represented herself in court last time and as far as we are aware did not get any legal advice.

    1. Your partner will need to seek advice from his solicitor with regards to whether he will be able to recover costs if he has to return the case to court as it will depend on the specific circumstances, the terms of the court order and the type of application that is made. It may be a more cost effective option to try mediation with a specialist family mediator to finalise the terms of the holiday arrangements, details of mediators can be found online at https://www.familymediationcouncil.org.uk/.

  17. My expartner(father) has jnstigated three sets of proceedings. 2016 A child arrangement order giving alternate weekend and holidays(50/50 hols from 2019). 2018 an enforcement and variation for specified holidays. In 2019 an enforcement falsely claiming he did not get specified hols and variation asking for 50/50 and further specified hols in a highly controlling manner. Father has always had consistent contact and age appropriate holidays as ordered.
    After months of sheer anxiety over vexatious enforcement applications and over ?20000 preparing defence. Father withdrew enforcement application on arrival at final hearing. No prior warning to me although I had provided evidence at fdrh that his claims were false and asked for case to be dismissed. He did not provide a copy of my statement in the court bundle. Fdrh ordered position statement exchange 1 week prior to final hearing. He was late not producing a copy. I never saw his position statement. Apparently was email to court the day before(sun) but not to me.. I had objected to a variation as holidays had been adjudicated in in 16 and 18 and there had been no change in circumstances to warrant a change. He pursued a variation whichthe court allowed without the correct pre-action protocols of mediation. Minor pointe he was challenging we?re better suited to mediation. Which he refused and falsely claimed exemption on c100. He had not clearly set out his variation in his c100(copied his c79 app). His c100/statement/ position stammer only mentioned breaches. We spent half the day trying to ascertain what he actually wanted. Apart from to criticise me in public and cause unnecessary expense. Magistrates allowed the variation and have now awarded him
    More than 50% of hols. Reducing my hols and ordering hols that conflict with my sons hols (he attends diff school with diff hols) so for instance at Easter I have my son first week. Then my daughter the second week. Meaning we never spend Easter together. Impossible for me to work!
    They have order that he has 1 and 2 weeks hols every summer and I have the remainder because I get to determine his weeks by 31st jan because he has obstructed my hols. The school calendar is not released until June. So it is not possible for me to determinehols til then. It is an appalling order which is worse than the order we had which worked well for my daughter/son and me to spend hols together.
    Costs have been deferred to July because we ran out of time after he wasted so long working out what he actually wanted.. Am I likely to be awarded costs because he withdrew the order?
    I had completed a s91 to be heard at the same time but under pressure withdrew it by mistake. I want to still apply can I change my mind on this?
    What is the best way to approach the error on the holidays?
    Can I ask for the 2019 order to be set aside and return to the 18 order because the magistrates failed to adhere to legal requirement for mediation (he made no prior attempt to even communicate with me before court). And he falsely claimed that he was exempt from
    Mediation on c100.
    This would have saved expense.
    Do I have to appeal or is there an alternative as magistrates have allowed him to re litigate replicated argument from 16 and 18 only 7 months after his last application.
    Had he just wanted a variation it would have been weeded out at mediation or I would have been litigant in person.

    1. Specific advice is beyond the scope of a blog post comment. In order to advise a lawyer would need to review the court papers and a lot more detail from you about the case. You mention at the end of your post that you ‘would have been a litigant in person’, it is therefore assumed that you have legal representation within the proceedings so in the first instance you should direct your questions to your legal representative. If you are not legally represented or are looking for alternative legal representation going forwards please contact us on 01273 646900 to arrange an initial consultation with one of the specialists in our team.

  18. I used to live in the south (UK), My ex husband tried to stop me from moving to the north (UK) and to have full custody of our son, I represented myself in court a contact arrangement was made which has been adhered to. 4 years later and my ex has filed again a c100 applying for custody again. I will representing myself again. Can i make an order for costs if the case isn’t transferred to the north of england where we now live? He won’t go to mediation, how can i stop him from keep reapplying for custody, it is very distressing for all involved.

    1. Court proceedings are usually dealt with in the family court nearest to where the child who is the subject of the proceedings lives. With regards to costs as set out in the blog it is rare for cost orders to be made so normally each party to the proceedings pays their own costs unless there are litigation conduct issues that would justify orders being made. In some circumstances, where it is in a child’s bests interests to do so, restrictions can be placed on someone’s ability to make further applications to court. You should seek legal advice on the specific factors of your case. You can find details of lawyers local to you via the Resolution website.

  19. Hi, please could you help with my query?
    my ex husband (still married though) left me and our 18 month old son in April 2019.
    We have been having mediation but not agreeing so I believe he will take me to court for overnight access to my son soon. at the moment he sees him Tuesday evenings, Friday evening and one day per weekend. He says it isn’t enough and wants him overnight, my husband lives half an hour away down the motorway in his own place so his only reason for this is to save fuel. Plus he also has a daily commute of over 1 hour if he was to leave from our house like he used to. (I have now moved around the corner from our marital shared home)
    Now, I am still breastfeeding my son for comfort reasons and he has never been away from me overnight, he very much sees me as his comfort, he doesn’t have a dummy or a soother, just me. I believe him staying elsewhere overnight would cause him unnecessary stress and anxiety.
    However my husband argument is that he needs more father time. my husband pays a privately agreed maintenance to me monthly.
    what are the chances of the court going in my favour and not allow overnight access, even though I am willing to consider this once my son is over a certain age?

    1. The court will base its decision on what is in your child’s best interests. The court will determine this based on the ?welfare checklist?. The welfare checklist looks at:

      The wishes and feelings of the child (considered in the light of his/her age and level of understanding).

      The child’s physical, emotional and educational needs.

      The likely effect of any change in the child’s circumstances.

      The child’s age, sex, background and any characteristics which the court considers relevant.

      Any harm the child has suffered or is at risk of suffering.

      How capable each parent is of meeting the child’s needs.

      Specific advice on your circumstances is beyond the scope of a blog post comment. You should seek advice from a specialist family lawyer, you can call our team (in Sussex, Hampshire, London) on 0330 055 2234 to arrange a consultation or find a lawyer local to you on the resolution website http://www.resolution.org.uk/findamember/.

  20. Is it possible you can to help?
    The courts granted a PSO in 2018 to keep our 2 children in there county based on evidence that I presented that the mother may leave miles away without consenting me. The child arrangement order was also set in place which is every other weekend and every Wednesday. A year later she wants to move into her boyfriend?s property that he just rented just outside of the county. Its three miles presently to collect our children but new location will be 26 miles. She has applied for mediation and I?m happy to attend but I can?t afford my half. Mediation is aware I can?t afford it but her solicitor has sent me another letter illustrating what she is proposing for example: meeting half way to collect the children and also requesting the PSO to be amended to be a 40 mile radius from where the children presently live. Her solicitor seems to be using the tactic to be pressuring me to conform to give consent. There is many concerns I have about the plan to move and proposals given, and because of the complexity of the situation I feel this needs to be addressed in court instead of mediation.

    The solicitor stated at the end of the letter? if she has to make an application to the court on a contested basis she will have to include an application for costs in her application?

    Is this last statement in the letter implying that the costs of a possible court hearing can be put on me if she fills the application form to take me to court about amending the PSO and child arrangement order?

    1. Mediation can be a really effective way of resolving matters. Legal aid/public funding is still available to cover the costs of mediation in some circumstances, you can check whether you would be eligible online at: https://www.gov.uk/check-legal-aid. If the mother of the children applies to court it would be unlikely that you would be liable to pay her costs based on the information provided. The court does however have the power to order for you to pay her costs, advice as to whether the court are likely to exercise that power in your case is beyond the scope of a blog post comment – you would need to arrange an initial consultation with a specialist family lawyer. You can find details of specialist family lawyers local to you online at http://www.resolution.org.uk/findamember/.

  21. My ex is requested mediation regarding children issues. He currently has our boys every wed 5-8pm every other weekend from school on Friday drop back at my house sun 18.30. Equal share of school holidays. He is requesting that is girlfriend can collect boys or drop off (They are not keen on her) When she turned up previously they decided not to go with her. He is also wanting them an extra night on a Sunday dropping them at school. If my ex stay at his girlfriends they have a bed to share (boys are 12 and 14) Not ideal, Also one hour commute to school. If my ex keeps them in his camper van inadequate facilities , eg they are given a kettle to wash in the shower amongst other things like sleeping on the floor. Youngest boy (12) has expressed to wants to come back to me on a Sunday evening to get a proper shower, decent sleep and get correct equipment for school. Older boy is not bothered. My ex says if I do not agree he will take me to court . Should I just agree to avoid expensive court proceedings ?

    1. It sounds as though there are a lot of issues that need to be worked out and addressed to ensure that the arrangements for your boys are in accordance with their best interests. You may benefit from either assistance of a family consultant (see this blog post for more information https://www.familylawpartners.co.uk/blog/family-consultants-and-mediation/) and or a child inclusive mediator (you can find details of child inclusive mediators local to you online at https://www.familymediationcouncil.org.uk/find-local-mediator/).

  22. Hi I (the mum) am back in family court as my sons father (son is 8) has allegedly assaulted him and this is now an on-going police investigation. The father was not aware that this information had been disclosed so submitted a breach of contact order form through the court as I had stopped him seeing my son as he had been emotionally abusive to him.(before the physical abuse allegation) I do not want my son to have unsupervised contact with his father but can I realistically make a request for the father to cover my costs for court as I feel totally justified to have stopped him seeing my son?
    Thank you.

    1. Thank you for your comment. It would be unlikely that you would be able to recover costs from your son’s father based on the information you have provided. However, a more detailed analysis of your case would be needed in order to advise, which is beyond the scope of the blog post. You can contact to arrange an appointment with one of our experts for advice (we have offices in Brighton, Horsham, London and Hampshire) 01273 646900 or find details of experts local to you online at https://resolution.org.uk/.

    2. I?ve recently made an application to the family court, because since my relationship ended with my ex partner 7 years ago, there has been has been 3 contact orders made, as my sons mother had breached all the orders on numerous occasions by not allowing contact to take place.
      As a result I made an application to enforce the order, but with representing myself in court I shouldn?t have made an application to enforce the order, and made an application to make changes to the order. This time around my ex had legal representation and were able to make excuses in relation to the breach and because I wasn?t able to prove 100 % she breached the recent order and the DJ wasn?t able to take the numerous previous breaches into consideration. As a result she won the case, and the barrister asked me to pay ?2500 towards my ex?s legal costs and the DJ agreed for me to pay part of her costs. I did explain to the DJ that I couldn?t afford to pay towards the costs, but I?ve just had an order from the court to pay the costs within 3months. As a result I?ve written to my ex making an offer to pay her ?150 month, but she?s refused to accept my offer. What can I do, can I write to the court and explain I can?t afford to pay ?2500 by the end of Jan 2020, but made an offer to pay ?150 a month but the offer had been refused I would be grateful for your advice in this matter.

    3. If you have been ordered by the court to pay a certain amount by a set deadline then you are liable to pay the set amount within that timescale. If you want specific advice on your circumstances to explore whether there are any other options available then that would be beyond the scope of a blog post comment as a lot more information would be needed and a copy of the court order would need to be reviewed. If you are looking for specific advice you should arrange a consultation with a lawyer as soon as possible. You can find details of local lawyers on line at https://resolution.org.uk/find-a-law-professional/.

  23. Thank you for the helpful blog. My partner has an ongoing variation of consent order action instigated by her ex. The sole daughter of their relationship (11) has recently made allegations to social services of impropriety against the father. These are currently being investigated by the Police and are being taken seriously. My partner has succeeded in having the contact order suspended pending the outcome of these investigations. It is highly unlikely that contact will return to the status quo while she is a minor. The husband denies all of it and has yet to attend a single hearing (he winters abroad) or engage with the social services. If we were to make an application that he should pay/contribute to the mothers costs in having to bring the action, what cases show precedent and what sort of facts will we need to present. Many thanks

    1. 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?. If your partner is to succeed in making a claim for her ex to pay the costs then your partner will need set out to the court why the circumstances mean that it is justifiable for him to pay the costs. The manner in which the ex has conducted themselves within the proceedings, such as not turning up at court when ordered to do so, will be a relevant factor that is likely to be taken into account. We would need to know a lot more about the case in order to advise what case law may assist as each case is very fact specific. You may find the following website of use as it contains free access to case law in England and Wales https://www.bailii.org/. If you would like to arrange a consultation with one of our specialist lawyers please call us on 01273 646900.

  24. Can you assist
    2 year battle in court order finalised twice after 11 breaches. mother found to be illicit of 8 on the second trial. Failed to provide child for holiday. Money lost equivalent to ?7000 likelihood of mother having to pay father back.
    Court case is Monday 3 feb to determine but wanted to see if he had a good chance?
    It is the first time his solicitor has dealt with this kind of thing.

    1. We are sorry to hear about the court battle you have been involved in. Specific advice is beyond the scope of a blog post comment. Review of the court papers would be needed in order to advise on your case. It sounds as though you have a solicitor instructed so they should be able to advise on the chances of being able to successfully recover costs. If there is not a specialist family law lawyer instructed then you can find details of such lawyers local to you online at https://resolution.org.uk/find-a-law-professional/.

  25. Myself and my ex husband separated 11 years ago and subsequently were divorced 2 years later. We share 2 children now aged (just turned) 14 and 16. We had an informal agreement in place then all of a sudden, my ex husband wanted a residency order. He has increasingly breached the residency order – not collecting children, sending children home early etc. I have done everything to encourage a healthy relationship between him and our children and never stopped contact. I have no means of communicating with him as per the court order as he has according to my youngest son,”blocked me” on his phone. Even his wife who I had previously used as an emergency contact has blocked myself on Facebook. He messages my youngest son getting him to “pass messages on” which is no only inappropriate but unacceptable. He has also resorted in sending my eldest son who has learning difficulties not very nice messages and he is struggling as a result. My ex keeps coming up with excuses why he “won’t let” my eldest son go to his house (he has 3 years ago remarried so the house is his current wife’s). What is the situation with getting the court order amended due to my ex husband breaching this on numerous occasions in order that if I have my children all the time, I can try to get extra money to cover the extra expenses ie food,heating etc . Is there anything that can be done as I am at my wits end and need to take control back of my life.I feel like even now he is trying to control my life and just wish he let me live my life in peace (he lives about 6 miles away)

    1. We are really sorry to hear about your situation. Specific advice on your situation is however beyond the scope of a blog post comment. We recommend you arrange an initial consultation with a specialist lawyer to advise you. Please contact us on 01273 646900 to arrange a consultation with one of our specialist team (we have offices in Brighton, Horsham, London, Lewes and Hampshire) or if you want to meet with someone local to you and you do not live near one of our offices you can find details of other specialists online at https://resolution.org.uk/find-a-law-professional/.

  26. I am just wondering what action would be best, my ex recently informed me that she can no longer pick the children up as per the court order and wanted to know if we could swap the pick up and drop off. I am unable to swap the pick up and drop off dates due to personal circumstances so I offered to do both the pick up and drop off. I did ask for the cost of petrol to be paid back to me as I don’t live close. This is only for the drop off which is the ex’s responsibility. She refused this but still did not pick the children up which caused them to miss half a day of school as she picked them up the next day. Would it be best to stick with the court order or suck it up and do both pick up and drop off for so the children don’t miss school? my only worry is if I do that would she take advantage

    1. Sorting out handover arrangements can often be difficult for separated parents. The best interests of the children need to be the priority when deciding what to do. Specific advice in relation to your circumstances is beyond the scope of a blog post comment. Mediation maybe able to assist. We have specialist mediators and lawyers here at family law partners. We have offices in Brighton, Horsham, London, Lewes and Hampshire. If you would like to arrange a consultation please contact us on 01273 646900, alternatively details of other specialists, if none of our offices are local to you, can be found online at https://resolution.org.uk/

  27. Applied for co for breach of contact order, judge agreed on first hearing that the respondent is to cover my fuel costs to court of ?60 each attendance (200 mile each way) and also to pay half of all travel costs for when the children come to visit me, we are due in court next week and my daughters visit in easter, he has said he cant afford to contribute anything towards my travel costs to court or my daughters visit, leaving me with a cost of around ?300 to pay in 4 weeks. What will the courts do about this?

    1. In order to advise we would need to know a lot more about your case. We recommend you arrange an initial consultation with a specialist lawyer to advise you. Please contact us on 01273 646900 to arrange a consultation with one of our specialist team (we have offices in Brighton, Horsham, London, Lewes and Hampshire) or if you want to meet with someone local to you and you do not live near one of our offices you can find details of other specialists online at https://resolution.org.uk/find-a-law-professional/.

  28. I would like to take my ex partner to court for unsupervised contact with my son and a long term plan in place as I don?t feel we can be amicable and come to an arrangement together. She has a made a file to the police against me for domestic violence which is a lie. My son is 9 months and I would like to deal with this as soon as possible while his still young so it?s in place while his growing. Will I have to pay for her legal costs as a result of this ? And what?s the likely hood the court will give me unsupervised contact and overnight stays ?

    1. Thank you for your comment. If there have been allegations of domestic violence it is likely that if you take the matter to court that there will need to be a fact-finding hearing so a judge can establish what happened before determining what arrangements for contact are in your son’s best interests. When looking at whether or not your son should have unsupervised contact and overnight stays with you a court would take into account the following:
      ? The ascertainable wishes and feelings of your son (considered in the light of his age and understanding);
      ? Your son’s physical, emotional and educational needs;
      ? The likely effect on your son of any change in circumstances;
      ? Your son’s age, sex, background and any other relevant characteristics;
      ? Any harm which your son has suffered or is at risk of suffering;
      ? How capable you and your ex-partner, and any other relevant person is of meeting your son’s need.
      Subject to the details of your situation and you sensibly and reasonably conducting your case it is unlikely that you would be ordered to pay the legal costs of your ex-partner. Specific advice on your circumstances is beyond the scope of a blog post comment though, you should seek legal advice by way of an initial consultation with a specialist family lawyer. To arrange an initial consultation with one of our specialists please call 01273 646900.

  29. Good evening,
    My ex partner is currently taking me through mediation with the sole intention of obtaining a ‘parenting plan’. This all came about as i decided to go from having my daughters once a fortnight to 3 nights a week (my daughters are 8 and 6 and i have always been very involved in their lives so this was only a positive move for them).
    After a 1.5 hour meeting the mediator said she didn’t feel like we needed a parenting plan as the only contentious point was around one parent contacting the children when they are with the other parent, and a plan of attack for this was sorted within that meeting.
    My ex partner (although admitting we now agree on everything) is still demanding we pay for the parenting plan and if i refuse she will continue to court to get this. I don’t want to go to any more expense or waist anymore time.
    If i refuse to carry one with mediation will i then be lumbered with court fee’s?
    Are the rumours true that court fees run into the thousands?
    If court happens will my daughters be dragged in to the process?
    If court happened can i forgo solicitors and the associated costs and just represent myself?

    Many thanks for any help you can offer,

    Sebastian G

    1. A parenting plan can have benefits for all, it can often help provide some certainty and clarity as well as prevent misunderstandings arising. A parenting plan can be drawn up by a mediator, lawyer or indeed directly between the parents using an online tool (such as the one available on the CAFCASS website https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/parenting-plan/).

      You may also find the following blog of interest: https://www.familylawpartners.co.uk/blog/building-a-successful-parenting-plan-a-tool-kit-for-separated-parents/?mh_keyword=family%20law%.20partners. Parenting plans can also be made legally binding by applying to court for them to be made into a court order, this can be done by way of consent if the terms of the order are agreed between the parents. The Court take the view that it is best if parents can work together to sort out the arrangements for their children between themselves, without the need for any formal legal action to be taken, there is a ‘no order’ principle which means that the Court will not make an order unless it is in the interests of the children to do so. If an application is made to court the court fee is ?215, the person making the application pays the fee (in some circumstances an applicant can be eligible to get money off the fee https://www.gov.uk/get-help-with-court-fees).

      If a court application is issued then CAFCASS (Children and Family Court Advisory and Support Service) will review matters and make recommendations to the court as to whether they need to get involved and meet with your daughters. You can represent yourself within court proceedings, before you do though you should seek some initial advise from a specialist family lawyer so you are clear of the process and how to best represent your case.

      You can contact Family Law Partners on 01273 646900 to arrange an initial consultation with one of our specialist lawyers for advice.

  30. My ex took me to court re our daughter. Although he initially had representation, we found out in January that he was no longer represented after my solicitor got N email from his. Now when we attend court and bundles have to be prepared and the paperwork for the hearing and points covered in the hearing have to be drafted, my solicitor has to do them which incurrs me the bill. I am a single parent, who is not working, yet my ex is on 50k a year living with his new partner so have 2 incomes. My family have to help with bills as there is no way I could afford representation otherwise and as I have been emotionally abused for years I need someone to act as the middle man. How is it fair that he can basically use my solicitor to do all the bundles and paperwork etc yet whenever I ask my solicitor about applying for costs they just say I can?t? I don?t Understand why he should not pay as it?s him who has put us in this situation. Mediation was not appropriate due to abuse – it?s like allowing it to continue as now I?m having to foot the bill for him as well! Where do I stand? Should my solicitor be applying for costs? My ex will also contest what?s been written in order to cause more back and forth which will increase the bill also. I know he is doing it on purpose as it?s his way of basically getting to me as every month he messes me around for his CMA. It is crippling my family having to pay these bills and it?s causing me severe anxiety and stress knowing I?m putting them in this position. Please tell me I can apply for costs? We have paid thousands and thousands more than we should have had to if his side had been doing what they should have.

    1. The court rules do require the respondent if legally represented to prepare the court bundle and necessary paperwork for court hearings when the applicant is not legally represented. It sounds unlikely that you would be able to make a claim for your ex to pay your legal costs. Every case is very fact specific, your solicitors will have full knowledge of your case and therefore they will be best placed to advise you in relation to this.

  31. Hi. I live in Ireland and she live in the uk with our 3 boys. Am due in court as she wants full custody. What do I do in the Covid-19 situation please. Am due in court October 2020 on line. Thanks

    1. We would need to know a lot more about your case in order to advise. If the court proceedings are in England or Wales you can contact us to arrange an initial consultation for advice by calling 01273 646900, or you can find solicitors local to the area where the court proceedings are based online at https://resolution.org.uk/find-a-law-professional/. An initial consultation can be over the telephone or via video conferencing such as Zoom if you are in Ireland.

  32. Hi there,

    My partner recently lost a case regarding his ex partner wanting to immigrate to America, unfortunately due to finances he wasn’t able to appeal in court, however the circumstances have changed now and he wants to appeal the courts decision as he’s worried for his child’s safety can he do this ? and if so how ? just looking for some advice really. Thank You

  33. My partner is involved in a ongoing case to see his two children, this has been going on for nearly 3 years. He asked for an adjournment due to mental health issues and has an expert report stating that he needs at least 12 months away to get himself better, the judge has now dismissed the case, which we will appeal, we would like to know if orders placed in the case will still stand even though it has been dismissed.

    1. Thank you for your comment on the blog post and for sharing what sounds like a very difficult time for you and your partner. Specific advice is beyond the scope of a blog post comment. The court papers and orders would need to be reviewed and the full circumstances of the case understood. If your partner would like to arrange a consultation with one of our specialist lawyers for advice he can call us on 01273 646900.

  34. In 2017 a Court Order was put in place detailing the access arrangements for my ex to our two boys (3 and 5 at the time), where he has them every other weekend for 2 nights, and then allotted time in holidays. He was abusive and aggressive towards me so the Court Order included strict rules on how the handovers were to be conducted, with him collecting them and dropping them off (and no requirement for me to go to his house).

    Recently because he enjoys pursuing Motocross with our 9 year old son primarily but also our 7 year old, he has been threatening me with going to court to change the Court Order. He wants to have the boys every weekend to do Motocross (which is all day events, often whole weekend events, involving camping overnight). He’s also saying I should pick the boys up from his house, if he picks them up from my house.

    I have told him that he already has access to the boys for 50% of the weekends a year which is the quality time with the boys for me too (all the other days are school days, school runs, packed lunches, homework etc). I have also told him that the rationale for him picking up and dropping off the boys at my house are as valid today as they were in 2017, as he continues to abuse me in the street and over the phone, and send me horrible, mentally abusive emails and messages when he can’ get his own way.

    I have even switched several of “my weekend” with him next year to fit around the boys Motocross race schedule so I have been really amenable to their hobby without giving up my quality time with them.

    Would a Court give my ex more of the weekend time with the boys just because he hires an expensive barrister and goes to court for this? I have limited means to defend myself in court but I can’t see how it could be fair for me to have limited weekend time with them and have to do all the hard midweek grind with them?

    1. If an application was made to court the children’s welfare would be the court?s paramount consideration when deciding what the arrangements for the children should be. The court would have particular regard to the following factors when working out what arrangements would be in the children’s best interests:
      (a)the ascertainable wishes and feelings of the children concerned (considered in the light of their age and understanding);
      (b)the children’s physical, emotional and educational needs;
      (c)the likely effect on the children of any change in their circumstances;
      (d)their age, sex, background and any characteristics of the children which the court considers relevant;
      (e)any harm which the children has suffered or is at risk of suffering;
      (f)how capable each of you as parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the children’s needs;
      (g)the range of powers available to the court under this Act in the proceedings in question.
      More specific advice to answer your questions is beyond the scope of a blog post comment, the existing order and full details of your case would need to be considered. If you would like to arrange an initial consultation with one of our specialist lawyers for advice on your situation please contact us to arrange a consultation by calling 01273 646900.

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