Will I get my costs back from the other party if I ‘win’ my case in the Family Court?

In the very recent case of MH v KF the mother had applied for a Specific Issue order after the children’s father had failed to return the children after an agreed period of contact.

Initially the mother had applied to the Court ‘without notice’ to the father. This means she had not told the father that she was making the application. The Court set out that it was not prepared to deal with the application without notice to the father. An application without notice on the same day to a different Court for a prohibited steps order to prevent the father from removing the children from the jurisdiction of England and Wales was successful.

There were jurisdictional issues in this case as there was ongoing litigation in both Spain and the Republic of Ireland.

The mother applied for a costs order that the father pay her costs of the specific issue order application which totalled £21,414.80. The mother’s application failed. The Court did not want parties to feel deterred from using the Court forum to assist the Court in achieving the right outcome for the child on the basis there would be a risk of having to pay the other party’s costs.

Although Family proceedings have an adversarial element are not like other forms of litigation. There are good reasons why family proceedings take a different approach, particularly given the sensitive issues often involved in them. In addition, the welfare of the child remains paramount in any decision a Court may arrive at. This means the Court often must consider the risk of harm to any child in proceedings and arriving at a decision that is in the best interest of the child. This involves both parents or those that protect children being able to set out their position to the Court and thus can mean proceedings become costly and lengthy. In family proceedings and specifically in proceedings relating to children it is well established that the usual position is that no order is made in relation to costs. However, the Court does retain a wide discretion as to whether costs can be ordered in any situation as it considers fair. The Judge felt in this case that there was no reason to depart from the general principle that the parties to the case bear their own legal costs.

If you are considering making an urgent application in respect of your child, then costs can escalate. The Court always starts from the point that each party will pay their own costs whilst retaining the wide discretion to award costs if this is just.