Many parents agree the arrangements for their children after they separate or divorce without the involvement of lawyers, or the family court. An increasing number cannot do so, and this has led to applications in private children proceedings rocketing in recent years. The family courts are generally overwhelmed, and steps have been taken to encourage parents to use alternative methods to court to resolve their differences, including mediation and arbitration.
The cases that make it to the family court are often therefore what are described as ‘high conflict’, and some children are the subject of repeated applications. In the author’s experience the word ‘conflict’ is not always an accurate one to use when describing the dynamics involved in these cases as it implies that the parties are equally invested in and responsible for a disagreement. In practice there are many situations where one party pursues litigation about the children as a form of post-separation abuse, or because of what may be described as their ‘personality’ and inability to see the point of view of others.
The financial costs of contested children proceedings can be high. Experienced practitioners adopt strategies to try to keep their client’s costs down. However, if the other parent is determined to adopt a position and employ tactics that run up a client’s costs this can be very difficult to suppress and contain.
Following the significant reduction of public funding available in family cases, many parties represent themselves through necessity. Others choose to do so. If a parent represents themselves this can give them a licence to behave in ways that run up the other parent’s costs, delay the proceedings, and ultimately cause harm to the children. Equally if a parent is unrepresented in the face of these tactics and has suffered abuse during the relationship they need the objective advice of a legal representative, and the protective barrier this can provide. They are unlikely to be eligible for public funding.
The advice given to clients by family practitioners (the author included) is that it is extremely unlikely that they will recover any of their costs incurred in conducting private children proceedings. Based on current caselaw the situation must be ‘unusual’ or ‘exceptional’, the behaviour of the other party ‘unreasonable’ or ‘reprehensible’ for costs to be awarded. Clients understandably find this advice difficult to comprehend, coming from the perspective gleaned from civil disputes that costs should follow the event, and further that perhaps they should somehow be compensated for the emotional and psychological trauma of being the subject of litigation.
Clients are advised they may be ‘lucky’ and recover the costs of a hearing where for example allegations are made and all found to be entirely false. Clients are advised that this general default position taken by the family court is public policy, to avoid the perception of a ‘winning’ or ‘losing’ parent, and that costs orders in children proceedings are seen to be potentially harmful to an ongoing co-parenting relationship between the parents. On behalf of those resisting costs orders it is argued that they should not be put off pursuing allegations or a position in respect of a child they consider to be in the child’s best interests because of the ‘spectre’ (to quote Wilson J) that costs may be awarded against them.
The author considers that this default position in relation to private children proceedings needs urgent reform and consideration. Judges need more concrete guidance about when costs orders may be made in private children cases, and litigants should be managed pro-actively with clear warnings about the possibility of costs orders being made at various staging posts in the proceedings.
The approach to what constitutes ‘abuse’, ‘controlling and coercive behaviour’ and poor ‘litigation conduct’ needs to be re-examined (in line with the progression of understanding in general in the family court). The game playing that some litigants engage in that results in running up costs for the other party include: deliberating introducing delays, entering into excessive correspondence, making applications for interim hearings, making repeated applications, not attending court, serving and filing documents late and in breach of court directions and practice directions, dipping in and out of being represented, lodging completely unmeritorious appeals, not interacting with court professionals and experts, ignoring the advice and guidance of professionals, and launching multi-headed litigation if they have the means to do so to destabilise the other parent.
It is the author’s experience that these strategies are currently rarely, if ever penalised properly by way of costs orders in private children proceedings.
In this kind of dynamic, the view of the author is that a costs order will certainly not make matters worse given that the co-parenting relationship is already poor. On the contrary, if costs orders are not made, and a game player does not suffer any consequences, then the likelihood is that the behaviour will continue.
The family lawyer has some tools to try and prevent this, such as asking the court to make an order under S 91(14) of the Children Act 1989, but whilst these orders are somewhat easier to obtain than they used to be, they are still only an additional gatekeeping provision, not applying for example to applications to enforce an order or lodge an appeal.
There is urgent need for clear guidance for the judiciary about when costs warnings should be given to litigants, the process and criteria for assessing whether or not costs should be awarded and the assessment of how much should be awarded. Perhaps there should be a separate process for costs applications to be processed and assessed.
Correspondence and forms sent to the court should contain clear warnings that the court will consider making costs orders, and the default in orders should not be ‘no order as to costs’, but ‘costs in the application’.
A specific costs form (rather than the generic N260) should be designed for use in children proceedings.
This should enable the court to see patterns of behaviour and a comparison made with what could be seen as reasonable when assessing whether or not to make a costs order. The family court recognised a while ago that Scott Schedules with only a few allegations of abuse in them did not necessarily provide the court with sufficient information to assess if there had been domestic abuse. Instead, it was recognised that abuse can be seen better when the information presented can demonstrate patterns of behaviour. The author is of the view that this same lens needs to be applied to deciding whether or not to make a costs order.
In addition to the campaign on utilising ADR in private children cases, there should be a publicity campaign educating the public about the family courts and making it clear that the court will not tolerate misuse of the system, utilising litigation as a form of ongoing post-separation abuse, nor the making of unnecessary and repeated applications. The nettle should be grasped, and the family court should not be afraid to tackle abuse of the system using costs as a consequence or punitive measure. Not to do so is arguably institutional endorsement or abuse.
