[2025] EWHC 2395 (Fam)

The law applicable to the making of costs orders in proceedings with respect to children is well settled. 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.

Within the foregoing context, orders for costs in children proceedings will generally be rare. In Re T (Care Proceedings: Serious Allegations not Proved) [2012] UKSC 36, [2012] 1 WLR 2281, Lord Philips, delivering the judgment of the court, noted obiter that in family proceedings there are usually special considerations that militate against the approach that is appropriate in other kinds of adversarial civil litigation, particularly where the interests of a child are at stake, that explain why it is common in family proceedings, and usual in proceedings involving a child for no order to be made in relation to costs. Such considerations include that orders for costs between the parties will diminish the funds available to meet the needs of the family (either now or in the future) and that it is undesirable to award costs where this will (further) exacerbate feelings between two parents, or more generally between relations, to the ultimate detriment of the child. In Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317 at 1317 Wilson J (as he then was) said:

“Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the welfare of the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them…”

Unreasonable behaviour may, however, lead to a costs order even though the proceedings in question concern children. For example, in Timokhina v Tomohkin [2019] EWCA Civ 1284, [2019] 1 WLR 5458, costs were order in circumstances where the mother attempted to bribe a police officer to bring a spurious case against the father to support her case. In Re A and B (Parental Alienation No 3) [2021] EWHC 2602 (Fam), costs were awarded where the mother's approach to the proceedings was found to be wholly unreasonable and a totally ill-judged litigation tactic. In C v S [2022] EWHC 800 (Fam), [2023] 2 FLR 128 a costs order followed where a mother was found to have acted reprehensibly and unreasonably in fact-finding proceedings. In The Mother v The Father [2023] EWHC 2078 costs were awarded where an appeal had been brought with no proper basis.

However, even where the court considers that a party has taken an unreasonable stance in proceedings concerning children, it does not follow that an order for costs will inevitably be made. A conclusion that a party has taken an unreasonable or reprehensible stance in proceedings simply enables the court to consider making a costs order (see The Mother v The Father [2023] EWHC 2078. In Re N (A child) v A and others [2010] 1 FLR 454, Munby J (as he then was) summarised the position as follows:

“A judge must be careful not to fall into the trap of simply assuming that because there has been unreasonable behaviour in the conduct of litigation an order is therefore to be made without more ado. Careful attention must be paid to all the circumstances of the case and to the factors which, on the authorities I have referred to, indicate that it is normally inappropriate to make such an order – factors which do not simply disappear or cease to have any weight merely because the litigation has been conducted unreasonably.”

It is important to note that there may well be circumstances other than where there is unreasonable or reprehensible behaviour or unreasonable conduct of the proceedings which justify a costs order (see Re S (A Child) [2015] UKSC 20, [2015] 1 WLR 1631 at [31]).

As I have noted, in this case the father also seeks a pro bono costs order that provides for the mother to pay costs the father’s would have incurred but for his pro bono representation to the Access to Justice Foundation (hereafter “the AJF”), summarily assessed or to be assessed on the standard / indemnity basis if not agreed. Jurisdiction to make such an order is provided by ss 194 of the Legal Services Act 2007:

“194 Payments in respect of pro bono representation civil courts in England and Wales

(1)

This section applies to proceedings in a civil court in which—

(a)

a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and

(b)

R's representation of P is or was provided free of charge, in whole or in part.

(2)

This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge.

(3)

The court may order any person to make a payment to the prescribed charity in respect of R's representation of P (or, if only part of R's representation of P was provided free of charge, in respect of that part).

(4)

In considering whether to make such an order and the terms of such an order, the court must have regard to—

(a)

whether, had R's representation of P not been provided free of charge, it would have ordered the person to make a payment to P in respect of the costs payable to R by P in respect of that representation, and

(b)

if it would, what the terms of the order would have been.

(5)

The court may not make an order under subsection (3) against a person represented in the proceedings if the person's representation was at all times within subsection (6).

(6)

Representation is within this subsection if it is—

(a)

provided by a legal representative acting free of charge, or

(b)

provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

(7)

Rules of court may make further provision as to the making of orders under subsection (3), and may in particular—

(a)

provide that such orders may not be made in civil proceedings of a description specified in the rules;

(b)

make provision about the procedure to be followed in relation to such orders;

(c)

specify matters (in addition to those mentioned in subsection (4)) to which the court must have regard in deciding whether to make such an order, and the terms of any order.

(8)

“The prescribed charity” means the charity prescribed under section 194C.

(9)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10)

In this section—

“legal representative”, in relation to a party to proceedings, means a person

exercising a right of audience or conducting litigation on the party's behalf;

“civil court” means—

a)

...

b)

the civil division of the Court of Appeal,

c)

the High Court,

ca) the family court,] or

d)

the county] court;

...

“free of charge” means otherwise than for or in expectation of fee, gain or reward.

(11)

The court may not make an order under subsection (3) in respect of representation if (or to the extent that) it is provided before this section comes into force.”

The jurisdiction to make a pro bono costs order thus encompasses the Family Court and the Family Division of the High Court. A pro bono costs order reflects the financial value of the free legal help provided and the amount is based on what a paying client would recover. The costs cover any period when free representation was provided. Any costs order should provide that payment is made to the prescribed charity, namely the AJF, pursuant to s.194C of the 2007 Act. The objectives of the AJF are to receive and distribute financial resources to be utilised in helping to provide pro bono legal advice or assistance to those who need it most, for example through advice centres and law centres (see the White Book, paragraph 46.7.1).

In Manolete Partners v White [2024] EWCA Civ 1558, [2025] 1 WLR 1094 (in which the question on appeal was whether, and if so, how, when considering whether to make such an order, the court should take into account the fact that the successful party who was represented pro bono owed a large and unsatisfied judgment debt to the potential paying party), the Court of Appeal noted that the power to make an order under s.194(3) of the 2007 Act is discretionary in circumstances where the requirement under section 194(4) obliging the court to "have regard to" the order it would have made if "P" had not been represented pro bono does not amount to an obligation on the court make an order that exactly, or even so far as possible, corresponds to the costs order it would have made in the absence of pro bono representation.

Further, and importantly having regard to the principles that apply to costs orders in children proceedings, in Manolete Partners v White the Court of Appeal made clear that, although often called a "pro bono costs order", an order under s.194 of the 2007 Act is not a conventional order for costs. As such, while s.194(4) of the 2007 Act “in effect requires the court to have regard to the principles that apply to such costs orders”, the Court of Appeal emphasised that the power to make an order under s.194 must also be exercised having regard to the legislative purposes behind the enactment of that section. With respect to the legislative purpose of s.194 of the 2007 Act, in Manolete Partners v White the Court of Appeal held at [20] and [21]:

“[20] The legislative purposes of section 194 are relatively easy to see. Before the introduction of section 194, a privately funded party who was litigating against a person who was represented pro bono had the tactical advantage that they were not exposed to the usual risks of an adverse costs order. The introduction of section 194 was designed to put the parties on a more equal litigation footing by exposing the privately funded party to a similar risk of adverse costs. In addition, the identification of a charity as the beneficiary of an order under section 194 and the designation of the AJF makes clear the intent that orders under the section should provide a source of funding to support organisations involved in the provision of free legal help to a wider cross-section of the public who might be in need.

[21] ... Parliament must have enacted section 194 in the knowledge that the majority of litigants who obtain pro bono representation do so because they do not have the financial means to pay for legal services. Parliament therefore could not have envisaged that an order for payment to the AJF should be made conditional upon such litigants finding the money to pay legal fees, because the practical result of imposing such a condition would be that in most cases, no payments would be required to be made to the AJF. This would defeat the statutory purposes which I have identified.”

The procedural approach to determining whether to make a pro bono costs order in a case concerning children will be broadly the same as the approach to the question of costs in any other children proceedings. In the circumstances, the principles that are set out above governing whether or not to make a costs order in proceedings concerning children will apply to the question of whether or not to make a pro bono costs order.

The statutory power in s.194 is given effect by CPR 46.7 and guidance is contained in CPR PD46. Within this context, statements of costs should be filed indicating what fee work was provided and how much it would have cost a paying client at the lawyer’s   normal rate. The task of the court will be to determine whether, having regard to the principles set out above, a costs orders should be made notwithstanding the proceedings concern a child or children and, if so, 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. Ordinarily, the assessment of the appropriate quantum of costs will be a summary one. The suggested wording for a pro bono costs order is as follows:

“The [party] must pay costs for pro bono representation on or before [date] to the Access to Justice Foundation (The Access to Justice Foundation, 7 Bell Yard, London WC2A 2JR), [summarily assessed at £____] [or] [to be assessed on the standard /indemnity basis if not agreed].”