[2025] EWHC 2395 (Fam)

I am satisfied that this is a case in which it is appropriate to make an order for costs against the mother in favour of the father in the sum of £95,000. I am further satisfied that it is appropriate to make a pro bono costs order against the mother in the sum of £20,000. My reasons for so deciding are as follows.

In this case, and as set out in the previous judgments of the court, it is beyond dispute that the mother’s litigation conduct has been wholly unreasonable and reprehensible.

During the course of the proceedings, as found by Francis J, the mother repeatedly sought to manipulate, frustrate and delay the litigation process by making false and baseless allegations against the father without evidence to substantiate her repeated allegations of abuse or inappropriate care of Adam. Even now, in response to the application for a costs order against her, the mother continues to raise spurious allegations and to seek to use the litigation to malign the father and the legal professionals who have been assisting him, latterly pro bono.

Most egregiously, the mother sought to frustrate and delay the litigation by abducting Adam from the care of his father with the assistance of two other adult individuals and deliberately concealing him from the court and the police and authorities for 8 months, resulting in multiple court hearings before the High Court in an effort to locate Adam and return him to his father’s care, with the considerable expenditure of resources attendant thereon by those representing the father. For the mother now to contend in these circumstances that she made “multiple genuine attempts to reach an amicable agreement” with the father lacks any contact with reality. In so far as the mother complains about the father issuing “over 30 ex parte applications”, the need for such extensive litigation was brought about solely by the conduct of the mother in the circumstances set out above.

In addition, the mother has repeatedly sought to cast unevidenced and unjustified assertions against the father’s legal representatives and the court, alleging that the father’s high legal costs are evidence not of her frustration and obstruction of the   litigation, but of bribery and corruption in the courts. By way of example in her email to the father of 14 November 2022, she said “you have given dozens of thousands of pounds to your phony and liar lawyer ... to lie and forge official documents to discredit me by lying in court to deceive and mislead the judge to get what you want.” In her email to the father of 1 March 2023 she said “you paid thousands of pounds to your swine lawyer to lie and mislead the court and the judge to get what you want.” In a video posted online in October 2024, which the mother describes an email of 17 October 2024, the mother asserted that bribery and corruption among the judiciary and the legal profession was evidenced by the large sums of money the father was spending on his legal fees.

It is clear from the foregoing matters that the unreasonable and reprehensible conduct relied by the father in support of his application for a costs order relates to the mother’s conduct of the litigation and not to Adam’s welfare. A costs order may be made in proceedings concerning children where a party has behaved unreasonably or reprehensibly during the course of the litigation. Within the foregoing context, I am satisfied that this a paradigm case for a costs order against a parent who has acted both unreasonably or reprehensibly with respect to the litigation concerning Adam. The net effect of the mother’s appalling conduct was to delay, obfuscate and frustrate the proceedings and to increase markedly the father’s legal costs as a direct result of that unreasonable and reprehensible conduct.

With respect to the question of the pro bono costs order sought in respect of the pro bono assistance received by the father, it is important to start with consideration of s.194 of the 2007 Act and the extent to which legislative purpose behind s.194 is consistent with the position with respect to costs orders in proceedings relating to children.

As noted by the Court of Appel in Manolete Partners v White, s.194 of the 2007 Act must be applied having regard to the legislative purposes behind the enactment of that section. As further made clear in Manolete Partners v White, the purpose of s.194 is to address the issues arising from the fact that a privately funded party who is litigating against a person who is represented pro bono has the tactical advantage that they are not exposed to the usual risks of an adverse costs order (the party represented pro bono having incurred no costs against which an adverse costs order could bite against the privately funded party). The introduction of s. 194 of the 2007 Act was thus designed to put parties on a more equal litigation footing by exposing the privately funded party to a similar risk of adverse costs to the party represented pro bono should the privately funded party be unsuccessful.

In children proceedings, the scenario with which s.194 is intended to address does not ordinarily arise in circumstances where the exclusion of CPR 44.2(2) by FPR 2010 r.28.2 exempts all family proceedings covered by the FPR 2010 from the general rule that the unsuccessful party should pay the costs of the successful party. In these circumstances, in proceedings relating to children a privately paying party in children proceedings is not ordinarily at an advantage against a party represented pro bono, in that neither party to proceedings concerning children would ordinarily be at risk of an adverse costs order in any event.

In my judgment, however, this does not mean that a pro bono costs order is unavailable in proceedings concerning children where the case has proceeded in a manner that leads the court to consider whether a costs order is justified notwithstanding the proceedings   concern children, on the grounds of unreasonable behaviour. If s.194 did not cover this situation, a party to proceedings concerning children who is litigating against a party represented pro bono could act entirely unreasonably or reprehensibly without fear of costs consequences, on the basis that they are not at risk of an adverse costs order in favour of the party represented pro bono. This would also in my judgement run contrary to the purpose of s.194 intended by Parliament.

Accordingly, the approach of the court where an application is made for a pro bono costs order in proceedings concerning children will be broadly the same as in any other case of that type. Depending on the facts of the case, a costs order may be made in proceedings concerning children where a party has behaved unreasonably or reprehensibly during the course of such proceedings. When deciding whether there has been unreasonable conduct, each case must turn on its own facts (see Re W (A Child) [2020] EWCA Civ 77 at [10]). The unreasonable conduct relied on must relate to the litigation and not the child's welfare (see Re T (A Child) [2005] EWCA Civ 311 at [36], citing R v R (Costs: child case) [1997] 2 FLR 95). Where the court is satisfied that there has been unreasonable conduct of the nature and extent that justifies a costs order, the court will move to assess the quantum of costs that would have been awarded for the pro bono party’s representation if that representation had been on a fee paying basis and to award the equivalent amount in pro bono costs to the AJF. As I have noted, ordinarily the assessment of the appropriate quantum of costs will be a summary one.

For the reasons set out above, I am satisfied that that the mother has behaved unreasonably and reprehensibly with respect to the litigation concerning Adam such that I am satisfied that this a paradigm case for a costs order against a parent who has acted both unreasonably or reprehensibly. Again for the reasons I have given, in addition to making a costs order in favour of the father, I am satisfied that in such circumstances, it is open to the court also to make a pro bono costs order having regard to the legislative intention behind s.194 of the 2007 Act. Having regard to that legislative intent, in the particular circumstances of this case, I consider it appropriate to make a pro bono costs order in favour of the AJF, in addition to the costs order made in favour of the father. Given the court’s findings regarding the nature and extent of the mother’s unreasonable and reprehensible behaviour with respect to the litigation, the mother cannot be permitted to hid behind the fact that the father was compelled to move to pro bono representation to protect her from the a proportion of cost consequences of her unreasonable and reprehensible behaviour, particularly when the necessity to move to pro bono representation was a consequence of that behaviour drawing out the proceedings unnecessarily.

In assessing the appropriate quantum of costs, the court is exercising a wide discretion, governed by the general principles of reasonableness and proportionality. The court will seek to make an order which is fair, just and reasonable in all the circumstances.

In assessing fairness and reasonableness, the court may consider the paying parties means when making an order for costs, although it is not required to do so (see Attorney General v Dowie [2023] 1 FCR 221). I address this issue in circumstances where the mother specifically raises her contended for impecuniosity as a ground for opposing the father’s application for costs orders.

In this regard, I am conscious that I have limited information regarding the mother’s current financial situation. Against this, whilst the mother contends in her Skeleton   Argument that she is “is homeless and lacks financial means”, for the reasons explained in the judgment of Francis J, the mother is entirely lacking in credibility. Were the court to further adjourn the question of costs to enable the mother to provide details of her current finances, I am satisfied that the court could not safely rely on the mother’s account of her financial circumstances, if indeed any account went beyond the mother’s current bare assertion of destitution.

Further, there is some evidence before the court from which the court can draw inferences that appear to stand at odds with the mother’s assertion of impecuniosity. Within the material before the court is evidence that the mother has been able to take Adam abroad repeatedly, to hold him in Oman and then later to hold him for 8 months in hiding. Within this context, in his judgment Francis J observed that the mother’s capacity to travel to expensive foreign destinations was inconsistent with her being entitled to Legal Aid. The mother has also set out in evidence that her partner, with whom she lives, is successful in his career as a Senior Vice President / Chief Commercial Officer. The mother has further stated that he has access to a family inheritance once her passports are returned to her. The mother now has her passports pursuant to the order of this court of 8 May 2025. In the foregoing circumstances, whilst the court is not required to consider the paying parties means, I am satisfied that the court can reasonably conclude that the mother has access to sufficient financial resources to meet costs order made by this court whilst also discharging her living expenses.

I am further satisfied that it is appropriate to undertake a summary assessment of costs in this case. It would not be proper for the father to have to incur further costs associated with detailed assessment or to further rely on pro bono assistance to do so With respect to the pro bono costs order, in line with the approach taken by the Court of Appeal in Manolete Partners v White, in determining the appropriate amount I consider that it would not be appropriate to order a detailed assessment of the costs bill put forward by the pro bono solicitors and counsel, not least as it is unclear who would have the interest to participate in a detailed assessment apart from the mother. It would be unrealistic to expect the father’s pro bono team or the AJF to spend time and money on that exercise.

Taking a broad approach, having regard to all of the factors, I assess the appropriate quantum of the costs order in favour of the father to be £95,000. Considering the Form N260, the costs claimed therein are broadly reasonable having regard to the amount of work consequent upon the circumstances set out above. That schedule already takes account of some £19,000 in costs written off as an act of good will. With respect to the pro bono costs order in favour of the AJF, I consider that the appropriate quantum is £20,000. Once again, considering the relevant Form N260, the costs claimed therein are broadly reasonable having regard to the amount of work consequent upon the circumstances set out above. This gives a total costs liability for the mother of £115,000. I am satisfied that that figure is reasonable and proportionate having regard to the matters I have set out above and properly reflects the egregiously unreasonable and reprehensible conduct of the mother during the course of this litigation and the significantly elevated costs consequent upon that conduct.

Accordingly, for the reasons I have set out, I make the following order on the father’s application for a costs order: