Can I recover legal costs in private children proceedings?
A common question we receive from clients going through private children law proceedings is whether they can retrieve their legal costs from the other party. While this is a natural concern, particularly for those who are privately funding their case, the short answer is that cost orders in these proceedings are uncommon and exceptional.
The general rule on costs
Unlike civil proceedings, where “costs follow the event” (meaning the losing party typically pays the winner’s costs), private children law proceedings work differently. The Family Procedure Rules (FPR) explicitly disapprove this standard, making cost orders the exception rather than the rule.
Why are cost orders uncommon?
The Courts’ reluctance to make costs orders in children cases is based on various important considerations, such as:
- It could lower the funds available to meet the child’s needs
- These proceedings follow an inquisitorial approach rather than an adversarial one
- Cost orders may raise tension among parents
- They could impede future co-operation between parties
- It might put off parties from making applications that could benefit the child
When might the Court order costs?
While exceptional, the Court may make a costs order where a party has shown unreasonable litigation conduct. It’s important to understand that this refers to conduct within the litigation itself, rather than behaviour relating to the child’s welfare.
Examples where costs orders have been made are in situations that include:
- A parent has rejected mediation for no given reason
- Accusing the other parent of false claims
- Pursuing applications without merit
- Persisting with positions contrary to expert evidence
- Making unnecessary applications to “micromanage” arrangements
Recent judicial warnings
Recently, The Courts have taken a firmer stance against unnecessary private law applications. In a notable 2020 case, HHJ Wildblood warned that parties bringing unnecessary cases to the Family Court may face criticism and sanctions. This reflects the Court’s responsibility to allocate its resources suitably across all cases.
Practical tips for clients
If you’re involved in private children’s proceedings, consider these points:
- Exhaust all alternative dispute resolution (ADR) options before considering a Court application
- Maintain reasonable positions based on available evidence
- Ensure you keep your focus on the child’s best interests rather than point-scoring
- Keep detailed records of any unreasonable conduct by the other party
- explore mediation and other types of dispute resolution
What about litigants in person?
For those representing themselves, it’s important to note that:
- You may be entitled to costs orders in your favour
- You can claim for time spent on the case (at present £19 per hour)
- You’re expected to familiarise yourself with Court procedures
- Being a litigant in person doesn’t exempt you from a costs order being made against you
Comment
While costs orders in private children proceedings are rare, understanding when they might be made can help inform your litigation strategy. If you’re concerned about costs in your case, we recommend seeking early legal advice to discuss your options and develop an appropriate approach.
How can we help?
Rina Mistry is a Senior Associate in our Family Law team, advising on a wide range of family law work, and in particular specialising in private children’s law and children matters.
If you need further advice on the subjects discussed above, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide along with details of our hourly rates and fixed fee services.
For more information or advice, please call Rina or another member of our team in Derby, Leicester or Nottingham on 0800 024 1976 or contact us via our online form.
Contact us