What is a costs order in a child law case?
A costs order is an order that the court can make directing one parent to pay the costs for legal advice and representation that the other parent has run up in the court case between them.
Can I ask for my legal costs to be paid by my ex-partner in my child law (Children Act) case?
In most types of court cases the winner will pay the costs of the loser. That rule however does not apply in child law cases concerning the arrangements for the children. This is because where children are concerned there should be no winner or loser in any court cases that involve them.
It is rare to get an order from the court that the other parent should pay the legal costs you have spent in bringing or defending a case. This is because the court takes the view that cases regarding child arrangements should be not about punishing a parent. A parent should not be deterred from bringing a case to court for fear of a costs order being made against him or her. The court is very mindful also not to increase the acrimony between the parents which would be exacerbated by a costs order.
if you are defending a case because of domestic abuse or if you are left with no option but to apply to the court because the other parent refuses to allow you to have any contact with your child without any explanation this approach of the court can be very frustrating. In some cases, you might need to defend an application brought by your ex- partner to take a child abroad (sometimes called a relocation application) or alternatively you might need to make an urgent application to the court to prevent your ex-partner from skipping the country with your child (a Prohibited Steps Order application).
You might have limited funds and in those circumstances, it will feel extremely unfair that even if you are successful in defending or making an application to the court regarding the children you should not get your legal costs back from the other parent. If you must apply to the court never assume that you will be able to get your costs back from your ex-partner. You should treat any successful application for a costs order as a bonus.
In what circumstances might a costs order be made in a child law case?
A court would have to be satisfied that it was fair to make a costs order. The court would have to be satisfied that the behaviour of the parent against whom the costs order was applied for was not reprehensible or unreasonable. When considering behaviour, it is the behaviour during the court proceedings that is relevant, not during the divorce or separation.
Examples of when the court can make a costs order in a child law case.
- Where a parent fails to comply with court orders.
- Where a parent wrongly makes or defends a particular allegation. Is a parent defending allegations of domestic abuse despite overwhelming independent evidence?
- In fact finding case if a judge accepts that all the allegations made against a parent were not true and were made maliciously.
The courts will have to ask the question is a costs order justified? While the court can make costs orders in child law cases, these orders are really made in exceptional cases where your ex-partner’s behaviour has been reprehensible and unreasonable.
When should I apply to the court for an order regarding my child?
Think very carefully if an application for a Children Arrangements Order or any other order concerning the children is necessary. Going to court is expensive and it can take many months and in some cases years before you get a final order. Going to court should always be a last resort when all other options such as mediation have failed.
Also consider just how fundamentally important is the issue over which you cannot agree. Are you arguing over collection and drop off times for the children? Is it worth going to court over that? On the other hand, are you not able to agree where your children should live? Where they live will have a profound effect on their future and in such a scenario you might feel that the costs of a court application are absolutely worth it.
For further information on the issues raised, please contact Saika Alam.
Saika Alam is a well-respected Family and Divorce lawyer based in London, Mayfair. Known for her personal and practical approach many clients work with Saika on both their most complex, family, divorce and children related matters.