A judge has explained the family court’s approach to costs orders after rejecting a mother’s application in a case where her children were not returned to her by the father on time due to welfare concerns.

The mother, in MH v KF, denies the allegations and applied for an order that the father pay her costs of the application for a specific issue order in the sum of £21,414,80.

His Honour Judge Middleton-Roy said there was no general rule in proceedings involving children in the family court that an unsuccessful party will be ordered to pay the costs of the successful party. However, there are special considerations ‘that militate against the approach that is appropriate in other kinds of adversarial civil litigation. This is particularly important where the interests of the child are at stake. This explains why it is common in family proceedings, and usual in proceedings involving a child, for no order to be made in relation to costs.’

Although the court retains a wide general discretion on awarding costs, HHJ Middleton-Roy said: ‘In deciding what order, if any, to make about costs, the court must have regard to all the circumstances, including the conduct of all the parties and whether a party has succeeded in part of their case, even if they have not been wholly successful. In respect of the conduct of the parties, this may include conduct before, as well as during, the proceedings, whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue and the manner in which a party has pursued or defended a case or a particular allegation or issue.’

HHJ Middleton-Roy said the case before him was not one ‘where it is appropriate to depart from the general principle that each party should bear their own costs’.

The judge said the father acted on concerns raised by the children and his actions were not malicious. ‘Further, the father had little time to seek legal advice prior to the mother making her application, having not used family lawyers in this jurisdiction prior to this point. In my judgement, the father was motivated in his actions by welfare concerns for the children. I am satisfied the father wanted the best for the children, as he saw it.’