Can I get a Cost Order in Children Court Proceedings?

When you are paying for children law legal advice because your ex-partner has started a child arrangement order, specific issue order or prohibited steps order application against you or you think your ex-partner is being totally unreasonable in stopping contact or refusing shared custody, it is common to ask if you can get a family law court order that your ex-partner pay all or some of your legal costs. In this article we look at the thorny topic of costs orders in children law proceedings.

Online and London based Children Law Solicitors

For advice on a children court application call the children and family law team at OTS Solicitors on 0203 959 9123 or complete our online enquiry form to set up a video conference or telephone appointment with one of our friendly family law solicitors.

Cost orders

In most types of court proceedings, a judge has the power to order that one party to the lawsuit pays all or a proportion of the costs of another party to the court proceedings. The risk of a cost order being made through pursuing an unmeritorious claim or in taking obscure legal points is a useful deterrent to litigants starting court proceedings where there are limited prospects of success or conducting court proceedings in a way that runs up legal costs. For example, by requesting interim orders or additional court hearings to determine minor points.

Whilst in most civil court proceedings there is the saying that ‘’the loser pays the winner’s costs’’, that isn’t true in family and children law proceedings. Although it is technically possible for a family law judge to order that one party to children law proceedings pay all the other parent’s costs for either the whole proceedings, for a specific hearing, or a proportion of the costs, such children law cost orders are rarely made.

Children law cost orders

It may seem very unfair to you that you have to pay your own children law legal costs even if:

• You are applying to stop contact because of domestic violence.
• You are applying for a child arrangement order because your ex-partner refuses all contact and is turning the child against you through parental alienation.
• Your ex-partner is applying to the court for an order to relocate overseas with the children and you want a prohibited steps order to stop the relocation.

Although, in rare cases, a court will make a children costs order it is best to assume that you won't get a cost order made in your favour because:

• Cost orders are only made in a tiny percentage of children law court proceedings.
• A cost order is at the discretion of the family law judge.
• Even if a cost order is made the court may not order your ex-partner to pay all the court costs but just the costs incurred at a specific court hearing, such as a finding of fact hearing.
• Even if a cost order is made you will then need to get your ex-partner to pay the costs and they may not have the money to do so or may refuse to pay leading to enforcement proceedings.

When could a children law cost order be made?

Although it is very rare for a court to order that one party pay costs in children law proceedings, the court has the power to order costs if the judge thinks it fair and reasonable to make a costs order.

When deciding whether or not to make a cost order in children law proceedings the family law judge  will look at all the circumstances including:

• Whether you have succeeded in part of your case. For example, if at a finding of fact hearing the judge has accepted that all the allegations made against you were false or maliciously made.
• The conduct of you and your ex-partner before, during and after the children law court proceedings. For example, if your ex-partner offered contact before you started the court proceedings but you refused to take it at the time but later wanted contact. For example, if the dispute was over the contact collection time and one parent refused to attend mediation.
• Whether it was reasonable for one of you to make an allegation or to dispute an allegation. For example, if an allegation of domestic violence was disputed despite independent evidence of an overwhelming nature.
• The way in which a parent conducted the court proceedings or dealt with allegations or issues.

What the court is looking at is the question ‘’did a parent act unreasonably and is a cost order justified?’’ You are likely to think that the other parent’s stance is totally unreasonable but the family law judge has to carry out an independent assessment and cost orders will rarely be made, even in situations where the actions of one parent seem very unfair.

One of the reasons why courts rarely make cost orders in children law proceedings is that judges say that costs orders should not be used as a punishment and that it is often hard to say that there is a winner or loser in children law proceedings or to judge that one parent was totally blameless and the other parent the villain. In addition, the family law judge has to take into consideration the impact a cost order would have on future relationships between the parents, and the effect of a cost order on the children.

Starting children law court proceedings

You should not start children law court proceedings assuming that at the end of the case the court will order the other parent to pay your costs. You should also carefully assess the likely costs and the issues in dispute and get some specialist legal advice on your best option.

A children law solicitor will be able to advise you on the merits of your application. For example , if the other parent refuses to agree to your returning to live overseas with your child that is such a significant issue that the cost of children law proceedings can be easily justified to you. Equally, if your ex-partner won't let you have any contact then the costs of a child arrangement order application seems a small price to pay for a relationship with your child. The costs of court proceedings may not be justified when you are arguing over collection times or venues.

How OTS Solicitors can help you

If you want to apply for a child arrangement order, specific issue order ,prohibited steps order, relocation order or you are a respondent to a children law application, the specialist family law solicitors can provide pragmatic advice to not only support you through the court process but to help you minimise costs.

ONLINE AND LONDON BASED CHILDREN AND FAMILY LAW SOLICITORS

For help with a children court application the children and family law team at OTS Solicitors are here to advise and represent you to get you the best results. Call 0203 959 9123 or complete our online enquiry form to set up a video conference or telephone appointment with one of our friendly and approachable family law solicitors.