Can I ask for my costs to be reimbursed in children proceedings?

10/01/2022

You can pursue a costs order in children proceedings. However, it is rare for a party to pursue and ultimately succeed in a claim for costs in these types of proceedings.

A costs order in children cases is infrequent. This may be due to:

  • a lack of awareness that such claims can be made
  • the limited guidance available from reported cases, resulting in a reluctance to pursue costs order
  • solicitors advising against submitting a claim for costs because of the nature of the proceedings.

The consensus among family practitioners dealing with children’s cases is that such claims should not be made as there have been few cases where costs have been ordered. However, the law does not prevent you from making a claim.

The law

In family proceedings, the general principle is that each party should pay their own costs. The court has discretion as to whether, to what extent and when a party’s costs should be paid by the other party. Civil proceedings differ, as a claim for costs can be pursued by the successful party and a costs order is likely to be made. In family proceedings, it is difficult to assert that one party has been successful over the other when dealing with issues involving a child’s welfare.

Current case law

In a recent case of MH v KJ [2020], the judge concluded:

“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.”

What should I do?

Take advice on this issue at each juncture of your case and ensure your solicitor records the instances where you can demonstrate any of the factors outlined by the judge in the case above. At a final hearing or earlier, the contemporaneous note can be assessed to determine the merit of you claiming your costs.

If you have any queries regarding children proceedings on divorce, please email Teena Dhanota-Jones at tdj@portner.co.uk.