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	England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> RC v FP (No. 2: Costs) [2025] EWFC 124 (08 May 2025) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2025/124.html Cite as: [2025] EWFC 124

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IN THE FAMILY COURT
SITTING AT THE ROYAL COURTS OF JUSTICE

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th May 2025

This judgment was handed down remotely at 10.30am on 8^th May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. .............................

Nicholas Allen KC:

1. I am concerned with FP's ('M') application for costs following my having given permission to RC ('F') to withdraw his applications for child arrangements and parental responsibility orders.

Background

2. I set out the factual background to this case in RC v FP [2025] EWFC 123. I shall not therefore repeat the same in detail. This judgment is to be read alongside the earlier one.
3. By way of brief summary, however, the parties were in a relationship from late 2016. In early 2019, whilst pregnant with the parties' child, M discovered that contrary to what she had been told by F, he was in a relationship with another woman, already had one child with her (then aged [age]), and his partner was very shortly to give birth to their second child. The parties' relationship thereafter ended.
4. The parties' child, C, was born on [date]. They are now aged [age].
5. On 22^nd September 2022 F applied for child arrangements and parental responsibility orders. Her Honour Judge Robertson made an order by consent on 18^th January 2023, which included the appointment of Ms. Carol Edwards as an ISW for the purpose of advising the parties on how best to introduce C to F and their half-siblings and thereafter to assist with the introduction and progression of contact. The FHDRA listed for the following day was vacated.
6. On 18^th April 2023 His Honour Judge Talbott heard the DRA when the parties agreed to follow the ISW's recommendations to progress the 'spend time with' arrangements. F had his first contact with C in the same month. On 14^th November 2023 His Honour Judge Talbott heard a second DRA. An interim 'lives with' order was made in M's favour and an interim 'spends time with' order in F's favour.
7. Her Honour Judge Roberts heard the next DRA on 8^th February 2024. She gave an extempore judgment in relation to whether to list the case for a fact-finding hearing. She refused to do so on the basis that it was neither necessary nor proportionate. She directed inter alia a further DRA and a final welfare hearing with a time-estimate of four days.
8. In April 2024 F had his last contact (to date) with C.
9. The further DRA was heard by Her Honour Judge Roberts on 3^rd June 2024. As she was now shortly to retire, the four-day final hearing listed on 16^th September 2024 was reallocated to me.
10. On 29^th August 2024 F applied for permission to withdraw his applications for a child arrangements and a parental responsibility order. On receipt of this application Her Honour Judge Roberts reduced the time-estimate from four days to one day.
11. On 16^th September 2024 M was represented by Mr. Vickers and F by Ms. Brereton KC. F had been given permission to attend the final hearing remotely but did not attend due (it was said) to medical reasons. The hearing proceeded on the basis of submissions only. I confirmed the 'live with' order remained in force. F's application to withdraw the parental responsibility application was not opposed and I granted the same. F's application to withdraw the child arrangements order application was opposed. I gave an extempore judgment in which I granted the permission sought.
12. There was insufficient time on 16^th September 2024 for me to deal inter alia with M's application for costs. I therefore case managed this and the other remaining applications which were listed with a two-day time-estimate on 25^th February 2025.
13. On 25^th February 2025, M was again represented by Mr. Vickers, F by Ms. Brereton KC and Mr. Wolanski KC, and the media (the BBC and Ms. Osborne-Crowley) by Mr. Bunting KC. Again F had permission to attend remotely but again did not attend (again (it was said) due to medical reasons).
14. I heard inter alia M's costs application. On the second day I heard applications in relation to the Transparency Order. This was the subject of my previous judgment.
15. I am very grateful to Mr. Vickers and Ms. Brereton KC for the quality of their written and oral submissions.
16. M has filed and served an N260 which evidences she has incurred total costs of £514,115.97 in dealing with these proceedings. It was accepted by Mr. Vickers that this was an "extraordinary amount" but it was said this was a product of the unreasonable approach taken by F prior to and during the course of proceedings.
17. Mr. Vickers sought a costs order in this sum on the basis that I summarily assess the same on the indemnity basis. Ms. Brereton KC submitted the appropriate order was no order for costs.
18. During Mr. Vickers' submissions he observed that F had never provided details of the costs he had incurred during the proceedings. I asked whether the figure had ever been sought by his solicitors - to which the answer was no. The question then arose as to whether Ms. Brereton KC considered it could be argued that F's costs figure was legally privileged and, if so, whether that point was taken on his behalf. Given F's absence from the hearing Ms. Brereton KC sought time to advise and take instruction on the same.
19. If the point were to be taken, Mr. Vickers was then to respond, and I would then rule on the issue. If the point was not taken, a costs schedule would be provided.
20. Ms. Brereton KC subsequently confirmed she had instructions to share F's costs (covering both the CA 1989 and the transparency issues). These were as follows:

 

Solicitors' Costs	£161,750
Counsel's fees	£240,275
ISW Costs	£47,890
Disbursements	£2,421
Total	£452,336
Total without ISW fees	£404,446

21. Given M's costs are £514,116, the parties' respective figures are not wholly dissimilar.
22. I also asked counsel at the conclusion of the hearing as to their position as to the amount of costs sought by way of payment on account in the event I determined that (i) costs should be payable by F; and (ii) the amount payable should be subject to a detailed assessment. I asked for figures on both the standard and indemnity bases.
23. Mr. Vickers subsequently confirmed as follows:

a) if I determined costs should be payable on the indemnity basis, M sought a payment on account of £257,057.98 (i.e. 50% of the amount claimed); and

b) if I determined costs should be payable on the standard basis, M sought a payment on account of £192,793.50 (i.e. 50% of 75% of the amount claimed).

24. Mr. Vickers also said that given F's history of delayed payments, consideration be given to ensuring timely payment.
25. Ms. Brereton KC confirmed that if the court were to make any order for costs 10% was suggested on the basis of the N260s lodged (or those which the court may think relevant noting what they specifically relate to and include, and the period covered).
26. Mr. Vickers noted in response that F's own position statement (25^th February 2025, paragraph 4) expressly acknowledged liability for costs related to M's deed of paternity application. In light of this, the 10% proposal was said to be wholly inadequate and did not reflect the unnecessary costs M had been forced to incur due to F's conduct.

The applicable law

27. Ms. Brereton KC prepared a document headed 'Legal Framework Regarding Costs' with which Mr. Vickers agreed. I gratefully adopt the same and have drawn extensively therefrom.
28. The Senior Courts Act 1981 s51(1) gives the court, subject to rules of court, an absolute discretion as to who should pay costs and in what sum. Thereafter the relevant costs provisions are set out in FPR Part 28 and PD28A. The general principles are:

a) the court may at any time make an order as to costs as it thinks is just (r28.1);

b) although CPR Part 44 applies (with modifications), the general rule therein that the unsuccessful party will be ordered to pay the costs of the successful party (i.e. that costs 'follow the event') is disapplied in private law proceedings (r28.2(1));

c) pursuant to CPR r44.2(4)-(5), in deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including:

i) the conduct of all the parties which includes:

(1) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

(2) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(3) the manner in which a party has pursued or defended its case or a particular allegation or issue;

(4) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim; and

(5) whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution;

ii) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

iii) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.

29. In Gojkovic v Gojkovic (No. 2) [1991] 2 FLR 233, Butler-Sloss LJ (as she then was) noted at p236 that it was "unusual" for costs to be ordered in children cases.
30. However, this proposition "is not applied where, for example, the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable" (London Borough of Sutton v Davis (Costs) (No. 2) [1994] 2 FLR 569 per Wilson J (as he then was) at p571).
31. In R v R (Costs: Child Case) [1997] 2 FLR 95, Hale J (as she then was) sitting in the Court of Appeal identified at p96-97 three categories of reasons for the "practice" of making no order as to costs in children cases namely:

a) orders for costs will "diminish the funds available to meet the needs of the family";

b) "the court's concern is to discover what will be best for the child. People who have a reasonable case to put forward as to what will be in the best interests of the child should not be deterred from doing so by the threat of a costs order against them if they are unsuccessful"; and

c) "the possibility that in effect a costs order will add insult to the injury of having lost in the debate as to what is to happen to the child in the future; it is likely therefore to exacerbate rather than calm down the existing tensions: and this will not be in the best interests of the child ".

32. Hale J observed, however, that "clearly" there are cases in which it is appropriate to make costs orders in proceedings relating to children, one being "where one of the parties has been guilty of unreasonable conduct".
33. In Re T (Order for Costs) [2005] 2 FLR 681 Wall LJ (as he then was) noted:

[36] … costs awarded against one parent or another are exceptional since the court is anxious to avoid the situation where a parent may feel "punished" by the other parent which will reduce co-operation between them. This will only impinge ultimately on the welfare of the child or the children concerned.

The conduct of the parties is in reality 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.

One has to be very careful in this distinction when, as in the case of (the mother), the apparent unreasonableness is as a result of the personality of the relevant party. In such circumstances, there is often an overlap of that party's conduct of the litigation and the conduct relating to the welfare of the child.

[50] We recognise that irrational behaviour is commonplace in complex contact disputes, and that such behaviour may well be exacerbated by the personality of the individual parent. There is, however, in our judgment, a limit to which allowance can be made for a parent who deliberately and unreasonably obstructs contact by the other parent in circumstances where, on any objective analysis, contact is in the interests of the child and should take place …

34. The Supreme Court has provided guidance in two authorities:

a) in Re T (Costs: Care Proceedings: Serious Allegations Not Proved) [2013] 1 FLR 133 Lord Phillips at [44] determined that for the court's discretion to be invoked the court must first determine whether the conduct of the party against whom the order is sought has been "unreasonable" and/or "reprehensible"; and

b) in Re S (Children) (Care proceedings: Proper evidence for placement orders) [2015] 2 FLR 208 Baroness Hale explained at [31] that the range of potential reasons for ordering costs against a party in children proceedings was not restricted simply to cases of unreasonableness or reprehensible conduct or stance but she was clear at [26] that such orders should only be made in "unusual circumstances".

35. In Re A and B (Parental Alienation No. 3) [2021] EWHC 2602 (Fam) Keehan J distilled the test as to whether a court should exercise its discretion to award costs as follows:

[19] This court may exercise its discretion to award costs if it is satisfied that the conduct of a party (before as well as during the proceedings) and/or the manner in which he or she has pursued or defended the proceedings has been "reprehensible or unreasonable" - Re T (Children) (Care Proceedings: Costs) [2012] UKSC 36, [2012] 1 WLR 2281.

36. In C v S (Costs) [2023] 2 FLR 128 Arbuthnot J provided a comprehensive summary of the law in relation to costs in children proceedings at [111] – [129]. She described the law at [111] as "settled".
37. Most recently in Re E (Children: Costs) [2025] EWCA Civ 183 Peter Jackson LJ stated:

[23] There is a general practice of not awarding costs against a party in family proceedings concerning children, but the court retains a discretion to do so in exceptional circumstances. These include cases in which a party has been guilty of reprehensible or unreasonable behaviour in relation to the proceedings. This practice applies equally in public law and private law proceedings, and irrespective of whether a party is legally aided. Nor is there any difference in principle between fact-finding hearings and other hearings. The court can make costs orders at any time: FPR 28.1.

[24] These propositions can largely be extracted from the decision of this court in the private law case of R v R (Costs: Child Case) [1997] 2 FLR 95 (Staughton LJ and Hale J) and the decisions of the Supreme Court in the public law cases of Re T (Children) (Costs: Care Proceedings: Serious Allegation Not Proved) [2012] UKSC 36, [2013] 1 FLR 133 and Re S (A Child) (Costs: Care Proceedings) [2015] UKSC 20, [2015] 2 FLR 208.

[29] … The correct approach is set out at paragraph 23 above. It is simple, flexible and well-established, and there is no reason to depart from it.

38. In determining unreasonableness or reprehensible behaviour, the ordinary meaning of those words should be adopted.
39. It was submitted on M's behalf that the court should exercise its discretion to award costs on the basis of F's conduct both before and during these proceedings.
40. Mr. Vickers stated that prior to issuing his applications F caused M to incur hundreds of thousands of pounds in costs dealing with legal threats and engaging in NCDR which was motivated by F's desire to silence her. At paragraph 8 of his Position Statement he summarised this conduct as follows:

8. Since [C's] birth F has attempted to use the legal system to further abuse and control M, using threats of litigation to silence M from speaking about the abuse to which he subjects her. F has presented M with various legal instruments including NDAs, a 'No Contact Agreement' (in August 2020 in which F sought to dictate [C's] relationship with him and their paternal family and prevent M from disclosing [C's] paternity or contacting their paternal relatives) and phoney trusts as a means of keeping [C] an estranged and shunned member of their paternal family … F made his application for PR and a CAO on 22 September 2022—exactly [number] days after he was contacted by a journalist from [Z media] for comment on an upcoming article about his relationship with M and [C]. The article had not yet been published, yet F had already sought to exert pressure on M and the publication to stop it. In the days before filing, F sent multiple emails urging M to halt publication and threatened to reduce financial support for [C] if she did not comply. He subsequently cut child support by half without reason and still insists that M issue Schedule 1 proceedings before making full financial provision for [C]. M maintains that F's application was not child-focused but a retaliatory measure intended to silence her for speaking out.

41. Mr. Vickers also relied on the fact that F has attended just one hearing during these proceedings, otherwise electing (he said) to send his team of KCs and senior partners to hearings in his stead. He stated F failed to take up court ordered contact and had accepted that he did not offer (and M would say did not have) any good reason for the same. He had made and withdrawn both substantive and interim applications, failed to make proper admissions of domestic abuse, and had put M and C through almost two and a half years of litigation at significant emotional and financial cost.
42. Mr. Vickers further submitted the fact that the court acceded to F's application to withdraw his applications did not absolve him of liability for costs. F had not seen C since April 2024 (through no fault of M) and could and should have made his application to withdraw much sooner than 29^th August 2024. M considered that F deliberately delayed in making his application to ensure he remained in control and she suffered the maximum financial consequences possible.
43. He further submitted there could be no scope for any argument that a costs order could have an adverse impact on C's welfare. The parental relationship was at rock-bottom; F was not taking up contact with C. F was said to be a "a financial Goliath" who could readily afford the sums sought by M. M was a single parent who has spent significant sums on litigation which could otherwise have been spent on C.
44. In his oral submissions Mr. Vickers emphasised F's admissions of domestic abuse, the court's findings, the harm this has caused M and (he said) C vicariously. It was said that the parties' conduct had to be considered against this background. He cautioned that to accept that M was responsible for how the case developed and its 'mushrooming' (his term), citing the change of legal team from September 2023 as the catalyst and cause of all of this, would be akin to 'victim blaming' and ignore the fundamental mistrust rooted in F's behaviour.
45. On F's behalf it was said by Ms. Brereton KC that the only costs he should pay for were those incurred by M having to prepare an application for a declaration of parentage and the statement that was filed as directed by the court to facilitate determination of the same.
46. Ms. Brereton KC stated this case did not start with the courtroom and that between 2019 and 2022 there was a long period of negotiation between lawyers during which F sought to see C, sought parental responsibility, and to resolve financial issues all outside of the court arena.
47. It was said F suggested and funded therapy to open the door to his relationship with C but when undertaken in 2021, this ended as it trespassed into financial matters. F offered to provide a £3m house for C and access to a £20m trust fund. When no progress was made, he invited M to issue CA 1989 Schedule 1 proceedings but this was never pursued. F had paid maintenance for C since they were born (currently £7,500 pm), made payments for them to the value of £437,000, and paid c. £173,000 towards M's previous legal costs. He could not be said to be someone who has avoided financial responsibility.
48. F only issued proceedings when it became apparent that his wish to be introduced to C and to establish a relationship with them was not going to be achieved using therapists, solicitors and NCDR. These efforts were contra indications to the assertion he had simply issued proceedings and/or continued them until September 2024 as an abusive course of action. F had run out of options and there was no other choice.
49. It was submitted that without the proceedings C would never have met F. The proceedings were necessary. F sought the benefit of expert advice to assist the parties to achieve his desire to be introduced to C and build a relationship with them. The parties agreed without the need for attendance at court that Ms. Carol Edwards be appointed as the ISW. F funded the expert throughout and C built a rapport with her. Subsequently M had accused her of bias.
50. Ms. Brereton KC also submitted the case had progressed in a conventional way: the CAFCASS safeguarding letter was available to the court in April 2023 and although domestic abuse was raised, CAFCASS noted this was not a barrier to contact. At the hearing before His Honour Judge Talbott on 18^th April 2023, it was agreed that Phase 1 of Ms. Edwards' contact plan would be implemented, which it was. C met F. The matter was progressing amicably and by agreement. This was demonstrated by the orders dated 18^th January 2023 and 18^th April 2023, both of which recorded there would be "no order as to costs". At that stage M had already filed her C1A and F had accepted the harm caused in his responses.
51. Ms. Brereton KC submitted the parties had agreed the way forward until a change of representation in September 2023. Then the complexion of the case changed significantly. It was at the hearing on 18^th November 2023 that M now sought a fact-finding hearing. M wanted the court to engage in and define F's accepted behaviour under specific labels. The court made case management directions including the filing of statements. His Honour Judge Talbott determined the parties' statements should be limited to 14 pages. By significantly reducing the font etc. M enabled herself to file 52 pages of narrative. This approach was mirrored somewhat in her final statement where M used exhibits to add narrative and further allegations that should have been in a statement. There had been a pattern where M's legal team manipulated court directions to shoehorn in extra evidence that was not directed. M was now seeking that F pay the costs of this manipulation.
52. M then pursued a different and expensive pathway with which Her Honour Judge Roberts did not agree. At the DRA on 8^th February 2024 she determined that a fact-finding hearing was not proportionate and necessary, and that C's welfare did not require such a hearing. The court also noted that F's statement dated 31^st January 2024 admitted much of his harmful behaviour (reflective of his initial responses in April 2023) but that he did not recognise the 'characterisation' which M had given it. The principle of contact was agreed and progressing.
53. F was directed to file a Schedule of Admissions which he did and signed on 29^th February 2024. Despite this, M asserted that F should be done for contempt of court for not filing it in accordance with directions. This gave a flavour of how the litigation has been pursued by M's legal team since September 2023 - it was said to be exhausting and relentless.
54. Ms. Brereton KC also referred to there being another theme throughout and continuing namely that M had sought to use these proceedings to broker a relationship with F's family in Country A. Their consistent position has been that they did not want to get involved because of the publicity and M's social media activity. This was not an attempt at 'silencing' as M persisted in calling it but a reasonable response from family who wanted their privacy to remain intact. M had even applied at the hearing on 16^th September 2024 for a s11(7) condition to be attached regarding non-party children. The order of 18^th April 2023 had stated that introductions would be made to the wider family if agreed by them. None of them had agreed because of the privacy/publicity element coupled with the social media activity meaning C was the one who has lost out.
55. M opposed F's withdrawal of his application even when F had accepted and apologised for his behaviour before and during these proceedings, and when M was asserting the process itself represented abuse and the principle of contact was agreed. Having read the evidence and heard submissions, I had determined it was right that F's application under s8 be withdrawn. I had also endorsed F's submission that the court did not need to adjudicate on the characterisation of any domestic abuse or explore facts and/or welfare matters by way of oral evidence. M agreed to the withdrawal of F's parental responsibility application.
56. Contrary to M's assertion that F has used the litigation to control and abuse her and that his motivations were not genuine, the court had at every hearing been persuaded that his approach has been the right one for C. His approach to, engagement with, and pursuit and ultimately withdrawal of, the applications has been child focused and upheld by the court.
57. It was said that the above chronology did not represent abuse or unreasonable conduct and did not warrant the making of a costs order.

Determination

58. This is not a straight-forward application to determine. It goes without saying that F's conduct towards M was dishonest and reprehensible. She was grossly deceived. Parts of F's behaviour have been rightly characterised as controlling, as by his deception he engineered M to behave in a way she would not have done otherwise. M is the victim of domestic abuse and F was the perpetrator of the same.
59. However, this is not the question I have determine. The applicable costs rules require me to consider whether F's conduct within the meaning of CPR r44.2(4) justifies a costs order and where that conduct "includes" the matters set out in sub-rule (5) – and which are matters principally directed towards how a party has approached/pursued/defended the litigation (before as well as during the proceedings) and the extent to which they have succeeded in their application. In the context of private law children proceedings my discretion is to be exercised if this conduct has been "reprehensible or unreasonable". This reflects Re T (Order for Costs) [2005] 2 FLR 681 in which Wall LJ emphasised the 'unreasonableness' must relate to the conduct of the litigation rather than the welfare of the child.
60. My task is made more complicated by the limited nature of the findings made. For example it was submitted on M's behalf that F's applications were not motivated by genuine desire to build and foster a relationship with C but was motivated by a desire to silence M and prevent her from speaking out. However, there is no finding (or admission) to this effect.
61. Notwithstanding this I am satisfied it is appropriate for me to make costs order against F in this case.
62. As Mr. Vickers submitted, when considering F's pre-action conduct, it is of note that Keystone Law's letter of 12^th November 2020 first raised the issue of defamation (and sought undertakings from M), second privacy, and only then C but principally in the context of defamation. Keystone's subsequent letter of 10^th March 2021 was expressly written pursuant to the Pre-Action Protocol for Media and Communication Claims (dated 1^st October 2019), alleged M had made disclosures regarding matters of sensitivity which were "an entirely disproportionate interference with the strongly engaged privacy rights of [F], and also of the privacy rights of [C]", stated that F sought undertakings, and if this was not provided within the time stipulated, F would issue proceedings for misuse of his private information, and would apply on an urgent basis for injunctive relief pending trial of that claim and had already instructed specialist leading and junior counsel to prepare injunctive proceedings.
63. It is also relevant that on [date], BloomBudd, F's family law solicitors, wrote to both Z media and M's solicitors in relation to the media's intention to publish an article following an interview with M during which it was said M had shared detailed information of her relationship and subsequent child with F, said that it may contain disclosure of confidential or private material which may be actionable, and/or in relation to which relief might be available. It was said that it may also contain libellous material which might be similarly actionable. No assurance was provided that the article would not be published and two days later F issued his application for child arrangements and parental responsibility orders.
64. Whilst I am satisfied that F's application to the court was motivated by a desire to establish a relationship with C I am equally satisfied in light of the foregoing that the timing of his application to the court – more than three years after C was born and only two days after these two letters were written – was also motivated by a knowledge of the restrictions that would then follow under the AJA 1960 s12 and the CA 1989 s97.
65. I am fortified in this view by the fact that on the same date, [date], BloomBudd wrote on a without prejudice basis (no objection was taken on F's behalf to me seeing the same) which made it clear that F's financial offer in relation to C "has always been on the basis that a confidentiality agreement is signed", that such terms had first been provided on 21^st June 2022, that F needed M to demonstrate her commitment to C's future ability to form a relationship with F, that this would be hampered if there continued to be a press interest in the relationship and articles published and if M did not instruct that no article be published in relation to her, F or C by 6 pm that day, all offers relating to the settlement of the Schedule 1 proceedings were immediately withdrawn.
66. Whilst I do not go as far on this evidence as M seeks – in other words I do not find that F has been "primarily concerned" not with C, their welfare, and to have a relationship with them, but to protect his privacy and safeguard his reputation, I am satisfied that this formed part of his motivation. To require a confidentiality agreement to be signed as a precondition of a financial offer is on any view out of the norm and suggests more than one motivation and one that in my view amounts to unreasonable conduct on F's behalf prior to the issue of proceedings. Although the parties' evidence has not been tested by cross-examination, I consider this is a conclusion that is open to me on the correspondence.
67. In reaching this conclusion I bear in mind, as Ms. Brereton KC submitted, that in part I am being asked to determine (to adopt her words) the "ins and outs" of three years of (in part without prejudice) negotiations, that M may have "cherry-picked" from the correspondence, and I therefore cannot be satisfied that it was all to do with F's privacy (and, if it was he could have sought injunction). Ms. Brereton KC accepted that there were (again to adopt her words) various "flash points" in relation to F's privacy but this was not the same as this being his primary motivation. She cautioned me against making findings in relation to these three years and I ought to "tread carefully" before making serious findings that F sought to abuse court process and such behaviour was reprehensible.
68. I accept this submission as far as it goes, but her reference to various "flash points" (with which I agree) underlines in my view that furthering F's privacy was a motivator behind his conduct.
69. I also consider it relevant that F did not apply to withdraw his applications until 29^th August 2024. He had not seen C since April 2024. I do not need to determine the reason(s) for this – and whether the responsibility lies with F, M, or both – in order to conclude that it amounted to a very late application by which time both parties will have continued to incur costs and in particular those referable to the 16^th September 2024 hearing will have begun to be incurred.
70. I am fortified in this view by the fact that in his statement of 9^th September 2024, F accepts he "did not give much of a reason at the time" (paragraph 11 f) when he advised the ISW in July/August 2024 that he would not be able to attend contact with C as had been agreed at the DRA on 3^rd June 2024. The reason that he does give - "I was struggling with discussions with Carol ([M] asking questions about family meetings, a Deed of Paternity), these proceedings and I was taking time to consider what best to do for [C] in the long term" – does not stand up to any particular scrutiny. There would appear therefore to be force in Mr. Vickers' submission that "M would say [F] did not have … any good reason for the same."
71. I also consider it is appropriate for me to take into account that F did not attend the hearings on either 16^th September 2024 or 25^th/26^th February 2025.
72. In saying this I acknowledge that F made it clear in his original C100 application dated 22^nd September 2022 that "as he was habitually resident in [Country A] he would therefore be required to be video conferenced into all court hearings" (although cognisant of that Her Honour Judge Roberts directed on 3^rd June 2024 that the final welfare hearing commencing 16^th September 2024 was to be an attended hearing and all parties should attend in person).
73. The application notice dated 19^th February 2025 by which F sought permission to attend the hearing on 25^th/26^th February 2025 remotely by video-link (and which I acceded to) stated that F "continues to suffer from poor mental health and significant stress and associated anxiety due to the legal proceedings and is taking medication to treat his mental health. As such it would be extremely detrimental to his health to attend the hearing in person". A doctor's note to this effect was provided in support.
74. The application notice also said, however, that F would make himself available to his legal representatives before and after the hearing via video link. However this did not happen. I received an email from Ms. Brereton KC at 10.26 am on the first morning of the hearing, apologising for the late notice of the update, but stating she had received instructions that F would not be in a position to attend the hearing at all. She said F continued to suffer from stress induced anxiety and whilst he had hoped to participate in proceedings by way of video-link he was unable to do so having found his symptoms have worsened over the course of the last 24 hours. Her email attached an updated letter from Dr. X of YZ Medical Centre Limited dated 24^th February 2025 which stated that:

… [F's] health has deteriorated over the last days.

He has a gastrointestinal procedure pending and had a cardiac investigation last week.

He also has been troubled with increasing stress induced anxiety.

He has therefore been advised that, due to these physical and mental health issues, he is unable to attend to legal matters at present.

Something similar happened in relation to the hearing on 16^th September 2024 when I was advised at 10.20 am that F was not joining the hearing as he had had an anxiety attack.

75. The default position is that parties must attend hearings in person. I accept, as Ms. Brereton KC emphasised, F had been given permission to attend hearings remotely. I also accept that I must be careful not to go behind the medical letters. I further accept that F has a history of depression and anxiety and has been diagnosed with "stress induced anxiety" and prescribed medication because of these proceedings.
    
76. However, I also accept, as Mr. Vickers submitted, that a diagnosis of anxiety is always based to a material degree on self-reporting. Further, F's absences on both occasions were in effect presented as a fait accompli. I also accept it is probably the case F would have considered that an application to adjourn either hearing because of his absence was unlikely (or if made was unlikely to have succeeded).
    
77. Mr. Vickers also summitted that F's absence from the 16^th September 2024 hearing precluded the possibility of him giving oral evidence (which was a possibility on that occasion). In her response Ms. Brereton KC acknowledged that it was possible that there would have been oral evidence but, if I had not permitted F to withdraw his application, it had been common ground between Mr. Vickers and herself that I could not have dealt with the matter summarily and it would have been relisted with a time-estimate of three days to allow for oral evidence. In other words, no-one (save perhaps for Ms. Edwards) would ever have given evidence on 16^th September 2024. On this point I agree with Ms. Brereton KC. This submission was not made in relation to the 25^th/26^th February 2025 hearing as there was no suggestion of oral evidence on those dates.
78. In all the circumstances I am not persuaded that there was a sufficient deterioration in F's condition between when he sought to attend the two hearings remotely and then not to attend at all. I am therefore not satisfied that F was unable to attend either or both of the hearings remotely with, if appropriate, his camera turned off and with the possibility of frequent breaks and/or any other special measures in place that would have enabled his full participation. I maintain this view even if (as I accept) there may have been an increase in his stress induced anxiety in the build-up to the hearings. In my view this was "unreasonable" conduct during the proceedings which I am able to take into account.
79. I also take into account that as of 16^th September 2024 F opposed the making of a CA 1989 s91(14) order. It was said F was seeking to withdraw his applications and not to litigate, he genuinely believed proceedings were not the answer, and this was therefore not a case that required the making of such an order at this stage. However, very shortly before the hearing on 25^th February 2025 F changed his position and agreed to the making of such an order. It was said on his behalf by Ms. Brereton KC in her position statement at [24] that "in line with his views last year, the proceedings themselves have become the issue, have not helped in terms of any collaborative approach and were becoming harmful to [C] and [their] welfare … the father sees the sense in and need for a period of no further litigation with calm for all particularly [C]." I agree. However, in my view it was "unreasonable" conduct for F not to reach this conclusion until very shortly before the hearing.
80. In addition, I also take into account F's very late application dated 7^th February 2025 to adduce additional evidence – an application I refused. Mr. Wolanski KC candidly acknowledged that he had no answer to the question why it had taken four months from receipt of M's statement for him to make his application. I have no doubt M incurred some costs considering the possibility that she may need to file a statement in response. Although unlikely to be a significant sum in the context of M's other costs, this is a further example of "unreasonable" conduct during the proceedings.
81. Mr. Vickers grounded a further submission on the fact that F was aware that in her Honour Judge Roberts' judgment of 8^th February 2024 - when she refused M's application for there to be a separate fact-finding hearing - she stated (at paragraph 17) that "[t]here can be an element of factfinding in the welfare hearing". He submitted the only way F could guarantee that there would be no findings as to his behaviour beyond his admissions was his application to withdraw - and it was tactical that he made such an application at the last minute. In my view, this submission is one based on pure speculation and not something of which I can be satisfied and therefore that I can take into account.
82. Mr. Vickers also grounded a submission on the fact that F withdrew his application in the knowledge that it was still very much in dispute as to how contact would take place going forward - if not principle of contact itself – and therefore the situation he had foreshadowed on 16^th September 2024 if I acceded to F's application (which I did) and did not make orders then sought on M's behalf had "predictably come to fruition". Again, I consider this is pure speculation and not something that I can take into account. In the circumstances it is not appropriate for me to determine why contact has not happened since April 2024 although it is clear from the parties' respective statements that both parents blame the other.
83. For all these reasons I am therefore satisfied that this is an exceptional case that justifies the exercise of the court's discretion to depart from the general practice of not awarding costs.
84. In considering the three categories of reasons identified in R v R (Costs: Child Case) by Hale J (as she then was) at p96-97 for the "practice" of making no order as to costs in children cases I do not consider that any apply to this case. As Mr. Vickers observed, F's wealth means it will not diminish the funds available to meet the needs of the family. It will not deter F from making a further application in respect of C should this be warranted in the future (subject of course to the four-year s91(14) order I have made). It is unlikely to calm down the tensions between the parties given their (in effect) non-existent relationship (with Mr. Vickers describing it as being at "an all time low"). It will therefore have no impact on the parental relationship and therefore no consequential impact on C's welfare. Conversely, the making of a costs order will in effect repatriate monies to M she has previously had to spend in legal costs and which she could therefore spend on C and (as C's primary carer) this may well accrue to C's welfare.
85. In reaching my conclusion, I bear in mind the observations made in OG v AG (Financial Remedies: Conduct) [2021] 1 FLR 1105 per Mostyn J (albeit in a different context):
    

[71] Time was that when the court exercised a discretion in relation to ancillary relief it formed first and foremost a moral judgment. Therefore, in Constantinidi v Constantinidi and Lance [1905] P 253 Stirling LJ, at 278, held that 'in the exercise of every discretion which is vested in the [Divorce] Court, the Court should endeavour to promote virtue and morality and to discourage vice and immorality'. The moral judgment that was formed in those days was almost always about sex. I have not located any judgment in the old era where financial dishonesty was independently penalised.

[72] But times have changed. The financial remedy court is no longer a court of morals. Conduct should be taken into account not only where it is inequitable to disregard but only where its impact is financially measurable. It is unprincipled for the court to stick a finger in the air and arbitrarily to fine a party for what it regards as immoral conduct.

86. The family court more widely is also no longer a court of morals. My decision is not based on this but on the 'unreasonableness' of F's conduct of the litigation rather than on his conduct more widely.
87. For completeness I should record that for the reasons I have set out above I reject Ms. Brereton KC's submission that this case does not fit within the legal structure for a costs order "easily or at all". Her submission was that the kind the cases in which such orders are made are ones where there has been found to be fabricated allegations of physical and/or sexual abuse – and that this is the kind of conduct that has been found to be "reprehensible". In my view this is too narrow a reading of the authorities.

The amount of costs

88. The factors to be taken into account in deciding the amount of costs are set out in CPR r44.4.
89. Pursuant to r44.4(1), the court shall have regard to all the circumstances in deciding whether costs (i) if being assessed on the standard basis were (a) proportionately and reasonably incurred; or (b) proportionate and reasonable in amount; or (ii) if being assessed on the indemnity basis were (a) unreasonably incurred; or (b) unreasonable in amount. I shall consider the appropriate basis for assessment below.
90. The court shall also have regard to the matters set out in sub-rule (3) which include (a) the conduct of all the parties (which includes in particular the efforts made, if any, before and during the proceedings in order to try to resolve the dispute); (b) the amount or value of any money or property involved; (c) the importance of the matter to all the parties; (d) the particular complexity of the matter or the difficulty or novelty of the questions raised; (e) the skill, effort, specialised knowledge and responsibility involved; and (f) the time spent on the case.
91. In Re A and B (Parental Alienation No. 3) Keehan J divided the litigation into time periods reflecting the various applications that were made. I do not consider that I can adopt a similar such approach in this case.
92. I also bear in mind that although pursuant to CPR r44.2(6)(f) I may make an order relating only to a distinct part of the proceedings, sub-paragraph (7) states that before the court considers doing so, it will consider whether it is practicable to make an order under sub-paragraph (6)(a) (a proportion of another party's costs) or (c) (costs from or until a certain date only) instead.
93. The factors I have taken into account in deciding whether or not to make a costs order are also relevant to determining the amount of costs. This is clear from the fact that by r44.4(3)(a)(i) the court will have regard to the conduct of all the parties including in particular "conduct before, as well as during, the proceedings". I therefore take into account all the matters I have considered above.
94. I also take into account the fact that:

a) efforts were made to progress matters out of court before the issue of proceedings and offers to settle the financial arrangements were made on F's behalf;

b) I understand it to be accepted on M's behalf that mediation/therapy in relation to child arrangements broke down because she introduced the need to determine financial arrangements and made it a precondition of returning thereto that financial arrangements were resolved;

c) there was no order for costs made by Her Honour Judge Robertson on 18^th January 2023 and the same order was made by His Honour Judge Talbott on 18^th April 2023 (with all subsequent orders being costs in the application) and the costs of and occasioned by these two hearings have therefore been determined;

d) contact began after F issued proceedings with the assistance of an ISW who he has solely funded (at a cost of c. £48,000) and progressed for a number of months during 2023;

e) F has made a previous contribution towards M's legal costs (although if I understand the position correctly the figure is c. £73,000 rather than c. £175,000 with the balance paid towards living and not legal costs);

f) F persuaded Her Honour Judge Roberts on 8^th February 2024 not to direct a free-standing fact-finding hearing in part because she determined his admissions meant that one was not necessary as they were sufficient for the court to move forward to determine welfare issues. The judge did not consider F had to concede terms and labels sought because of admissions he had made. M did not therefore succeed in obtaining the findings she sought – both as to reproductive coercion and otherwise;

g) F persuaded me on 16^th September 2024 to permit his applications to be withdrawn; and

h) it can therefore be said that (in this sense) F has succeeded and his approach cannot be faulted being one that was endorsed both by Her Honour Judge Roberts and by me.

95. All these points act to depress the proportion of M's costs that F should be ordered to pay.
96. Acknowledging that I am painting with a broad-brush rather than a fine sable, in my judgment it is appropriate for F to pay 75% of M's costs. This figure includes M's costs incurred in relation to her application for a declaration of parentage which F has accepted he should pay.
    
97. It has been accepted on F's behalf that he can meet such a costs order. Given the very substantial sums offered to meet C's needs and that F has openly acknowledged his wealth, affordability is not a relevant consideration in this case.

Basis of assessment

98. The court may assess a party's costs on a standard basis or an indemnity basis.
99. The basis of such assessment (standard or indemnity) is set out in CPR r44.3 and r44.4(1).
100. An appellate expression of the test whether costs should be awarded on the indemnity basis can be found in Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson [2002] EWCA Civ 879 per Waller LJ at [39] when he said:
     
     The question will always be: is there something in the conduct of the action or the circumstances of the case which takes the case out of the norm in a way which justifies an order for indemnity costs?
101. The applicable principes were summarised in Three Rivers District Council & Ors v Governor and Company of the Bank of England [2006] EWHC 816 (Comm) per Tomlinson J (as he then was) at [25]. At sub-paragraph (2) it was said that "[t]he critical requirement before an indemnity order can be made in the successful defendant's favour is that there must be some conduct or some circumstance which takes the case out of the norm". At sub-paragraph (8) the judge listed seven "circumstances" which take a case out of the norm and justify an order for indemnity costs "particularly when taken in combination with the fact that a Defendant has discontinued only at a very late stage in proceedings".
     
102. A similar observation was made in the family law context by Mostyn J in JM v CZ (Costs: Ex Parte Order) [2015] 1 FLR 559 at [23]:

… Indemnity costs are awarded in cases only where there has been some conduct by the party liable to pay the costs which takes the case out of the norm – see in that regard Three Rivers District Council & Ors v Governor and Company of the Bank of England [2006] EWHC 816 (Comm), per Tomlinson J (as he then was).

103. Excelsior also makes it clear (per Waller LJ at [36] and [37]) that the pre-CPR authorities which often suggested that indemnity costs were only warranted as a punishment or where there was a need for conduct deserving moral condemnation were to be put aside.
104. I have also considered other authorities including Reid Minty (A Firm) v Taylor [2002] 1 WLR 2800 and Excalibur Ventures LLC v Texas Keystone Inc (No. 2) [2017] 1 WLR 2221.
105. Mr. Vickers submitted that if I was with him in relation to F's motivations for bringing (and then withdrawing) his applications – then this would be conduct "out of the norm" that would warrant an indemnity costs order.
106. It can be seen from my forgoing analysis that I am with Mr. Vickers but only in part.
107. I also note that the fact of making a costs order in private law children proceedings is already "out of the norm". It could be said that this cuts both ways in whether to then make such an order on a standard or indemnity basis.
108. In my view, there is insufficient in F's conduct of the litigation for this case to considered one that would justify the making of an indemnity order. Although clearly not an exhaustive list, the "circumstances" as set out in sub-paragraph (8) of Three Rivers are not ones that apply in this case.
109. The costs order shall be one assessed on the standard basis.

Summary or Detailed Assessment

110. Pursuant to CPR r44.6(1) where the court orders a party to pay costs to another party it may either (i) make a summary assessment of the costs; or (ii) order detailed assessment by a costs officer.
111. M seeks for the court to make a summary assessment. In support of this it was said detailed assessment would require oversight by a third party which is not appropriate where M is a victim of abuse, needs the proceedings to conclude, and she simply cannot afford any further involvement by professionals in this context. It was said that the detailed assessment procedure would continue this abuse.
112. It is fair to say that Mr. Vickers did not push this point particularly hard during his oral submissions. In my view he was right not to do so. He acknowledged – rightly – that given the sum of money claimed on M's behalf that the "ordinary course" would be a detailed assessment. This is also consistent with the fact that CPR PD 44 paragraph 9.2 provides a "general rule" that the court should make a summary assessment of the costs of a hearing which has lasted not more than one day which does not apply in this case.
113. In my view there is no reason to depart from the ordinary course in this case particularly as I can (and will) order a payment on account of the costs. The specific procedure for detailed assessment as set out in Part 47 and PD47 shall therefore be followed.
114. CPR r44.2(8) states that where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, "unless there is good reason not to do so".
115. There is no such good reason in this case. In my view the figure sought by Mr. Vickers on account is a reasonable one (in light of the guidance given in Mousavi-Khalkali v Abrishamchi And Anor [2020] EWCA Civ 1493). Therefore, having determined that costs should be payable on the standard basis, F shall make a payment on account of £192,793.50 (i.e. 50% of 75% of the full amount claimed) within 14 days.

Conclusion

116. F shall pay 75% of M's costs in relation to these proceedings to be subject to a detailed assessment on the standard basis if not agreed. F shall make a payment on account of £192,793.50 (i.e. 50% of 75% of the full amount claimed) within 14 days.
     

Addendum

117. I circulated this judgment to the parties' counsel in draft on 22^nd April 2025 and requested suggested editorial corrections and any requests for clarification and/or amplification in the usual way. Thereafter I received suggested editorial corrections most of which I have incorporated. There were no requests for clarification and/or amplification.
     
118. That is my judgment.

NICHOLAS ALLEN KC