Costs of Unreasonable Conduct in Family Law Court Cases

What are the costs of unreasonable conduct in family law court cases? The general rule in England and Wales is that costs follow the event, meaning the loser pays the costs of the winner. However, this principle does not apply to family law cases. Under the Family Procedure Rules of 2010 r. 28.1, the court may at any time make such an order as to costs as it thinks just, in accordance with the relevant legal provisions. In family law proceedings, the applicant—the party initiating the case—has specific responsibilities regarding costs, including the potential for cost recovery and the risk of being liable for costs in certain circumstances. The reasoning behind this method is that the courts do not want to discourage people with family law issues going to court because they may be responsible for the other parties costs.

The family law courts will make costs orders against one side only in exceptional circumstances. Their conduct within the litigation has to have been particularly bad for this to happen, especially in children cases. When exercising its discretion, the court’s primary aim is to deal with the case justly, taking into account the conduct of all parties and the relation between their behavior and the overall fairness of the case. If a party wishes to seek costs, they must make a costs application, and the court will consider the conduct of the parties, the legal expenses incurred, and whether the party sought the costs order in a manner justified by the circumstances. There has also been a recent trend towards a more robust approach by the family court in handling costs applications, particularly in financial remedy and divorce proceedings.

Court Procedure, Family Procedure Rules, and Fees

Navigating the family court system involves understanding not only the legal issues at stake but also the procedures and potential costs involved. Family proceedings are primarily governed by the Family Procedure Rules 2010 (FPR 2010), and Part 28 governs costs in divorce and family proceedings, including the approach to costs orders and legal fees. The Civil Procedure Rules 1998 (CPR) may also apply in certain circumstances, providing additional guidance on procedure and costs.

A key principle in family court is the “as to costs principle,” which means that, unlike in most civil cases, the general rule is that the court will not make an order requiring one party to pay the legal costs of the other party. This approach is designed to ensure that parties are not discouraged from seeking justice due to the fear of being burdened with the other party’s legal costs. However, the court retains discretion and may make such order as to costs as it thinks just, particularly where there has been unreasonable conduct or a failure to comply with court orders.

In financial remedy proceedings—such as those involving division of assets, maintenance, or a financial order following divorce or judicial separation—the court will generally expect each party to bear their own legal costs. Nevertheless, if one party has failed to comply with the family procedure rules, ignored court orders, or acted unreasonably during the litigation, the court may depart from the general rule and order that party to pay the costs of the other party. This robust approach is intended to send a clear message that the court will not tolerate conduct that undermines the fair and efficient resolution of disputes.

Court fees are another important consideration in family proceedings, and family law costs in the UK mainly consist of court fees and legal professional fees. Typical fees include £612 for a Divorce/Dissolution Application, £313 for a contested Financial Order Application, £60 for a Financial Order by Consent where finances are agreed out of court, and £263 for a Child Arrangements Order Application. The court may, in certain circumstances, order one party to pay the court fees of the other party, or require both parties to share these costs. In some cases, particularly where one party is at a financial disadvantage, the court may order a contribution towards legal fees to ensure that both parties can participate fully in the proceedings. Non-Molestation or Occupation Order applications under the Family Law Act 1996 usually do not attract a court fee, and people on low income or certain benefits may qualify for full or partial fee remission.

Maintenance pending suit is a specific type of interim order that the court can make during financial remedy proceedings. This order requires one party to pay maintenance to the other while the case is ongoing, helping to address any immediate financial needs and ensure fairness throughout the process.

The family court also encourages parties to resolve their disputes through non-court dispute resolution (NCDR), and the Family Procedure Rules require parties to engage in or attempt NCDR before proceeding to court. Parties are expected to try to settle disputes through mediation or other NCDR before litigating. If a party unreasonably refuses to engage in NCDR or fails to comply with a court order to attempt such resolution, the court may depart from the usual approach where that refusal was without a good reason. This reflects the court’s commitment to promoting efficient, cost-effective, and amicable solutions wherever possible.

In children cases, the court’s approach to costs remains cautious, and costs orders are only made in exceptional circumstances, such as clear evidence of unreasonable conduct or persistent failure to comply with court orders. The court’s discretion allows it to consider the conduct of the parties, the financial effect of any costs order, and the overall fairness of the proceedings, ensuring that each case is dealt with justly and proportionately.

In summary, the procedure and fees in family court are governed by a set of rules designed to promote fairness, discourage unreasonable conduct, and ensure that parties are not unduly penalized for seeking to resolve their family law disputes. The court’s discretion in making costs orders means that each case is considered on its own merits, with careful regard to the conduct of the parties, the financial impact of any order, and the need to resolve disputes justly and efficiently. Unless the court sets a different time period, costs orders are usually payable within 14 days.

The law on costs orders in child law cases

The leading case remains R v R (Costs: Child Case) (1997) where the father had been ordered to pay the mother’s costs on account of the father’s conduct being held to have been unreasonable. The judge stated the conduct of the parties is the major consideration when deciding whether or not an exceptional order for costs should be made. It should only be made if the penalised party has been unreasonable in his or her conduct. Moreover the ‘unreasonableness’ must relate to the conduct of the litigation rather than the welfare of the child. In addition, costs rules in child law cases are also governed by the Children Act, which gives the court discretion to make costs orders based on the conduct of the parties involved.

In a more recent case of S v S a father succeeded with an application to relocate with his two teenaged sons to Switzerland, following a damaging family law dispute. Despite being successful the father was ordered to pay £150,000.00 towards the mothers costs to reflect the fact that the father’s conduct had substantially contributed to the way in which the dispute, which cost the family a staggering £938,000, had to be resolved. The judge found that the father’s unreasonable conduct during the litigation justified a significant costs order against him.

The court’s final judgment in these cases is crucial, as it determines not only the allocation of costs but also impacts the overall outcome for the parties involved.

A new case law considering unreasonable conduct in child litigation

Another recent case law considers the costs of unreasonable conduct in family and especially child law matters. This is the case of Re E-R (Child Arrangements Order No.2: Costs). This case concerned a long running family law dispute over the arrangements for a six year old girl, ‘whose mother died of cancer. The parents had separated in 2011 and the child had remained with her mother. Proceedings began prior to the mother’s death and in January 2015 it was ordered that upon the mother’s death the child should live with her father rather than the mothers family friends with whom she was currently living.

The mothers family friends appealed the order which was granted along with the support of the mother. The Court of Appeal whilst allowing the appeal concluded that the Judge had erred in applying a ‘presumption’ of natural parent care by attaching a greater significance to the biological ties of child to her father.

A re-hearing was ordered by the court in which the court had concluded that the child’s best interests would be served by her remaining in the care of the mothers family friends and as a result a Child Arrangements Order was made that the child live with them. The judge also made contact arrangements for the child and the father. 

The father of the child along with his new partner had breached the contact arrangements in place which resulted in the mothers family friends with whom the child was living with to make a further application to the family law court for definition of the time the child was to spend with her father. This application was made in September 2016 and was heard in September 2017. The judge made detailed contact arrangements by varying the initial order made and hoped that these arrangements would be followed.

The mothers family friends following this hearing made an application for costs. They requested that the father and his current partner should pay towards there costs as by failing to comply with the initial arrangements order they were required issue a further application and the fact that the fathers conduct was detrimental to the child. It was also argued that the father and his partner were unable or unwilling to acknowledge their damaging behaviours and/or face up to the consequences of the father’s breaches of the earlier order and that they should therefore be penalised in the costs. The court noted that the father’s proposals and offers were rejected by the mothers family friends, and this rejection contributed to the decision to award costs against him. The court ordered the father to make payment of the costs within a specified time period set by the court. If the payment is not made within this time period, the mothers family friends may apply to the court for enforcement of the costs order, which can include legal mechanisms to compel payment.

Examples of unreasonable conduct by parties in child law hearings

The judge considered the conduct of the father and as an example of unreasonable conduct that can lead to costs orders, some of the important issues were identified as:

• Having made a comprehensive range of orders these were largely ignored and breached by the father and his partner
• The father cancelled more than half of his contacts which were ordered.
• The father told a blatant lie to the mothers family friends about his plans for a holiday contact and in breach of the previous order he took child to his home in Suffolk and encouraged the child to lie about where she had been.
• The father has limited respect for the authority of the court, specifically for the Child Arrangements Order, believing that only he should decide when he sees child.

Similar costs principles may apply in other family law disputes, such as those involving land under the Trusts of Land and Appointment of Trustees Act 1996, or the breakdown of a marriage, where the court considers the conduct of the parties when making costs decisions.

It is therefore important to note that although costs orders in family law cases are rare and apply in exceptional circumstances, judges have the power to make such costs orders where a party behaves or conducts litigation in an unreasonable matter. Parties also have an obligation to comply with court orders, and failure to do so can result in costs orders.

Our family law experts have years of experience in dealing with all aspects of family law. By working with you we can ensure that you are not subject to any unreasonable conduct in your family law matter and avoid the issue of paying unnecessary costs. For a free consultation call us on 0330 094 5880 or contact us online