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Father in contact dispute wins costs appeal
A father caught up in a contact dispute has won an appeal against an order that he pay half the costs of a psychological report.
The order in question was made by magistrates sitting at the Family Court in Dover last November. This stated that the father should be subject to a “full psychological assessment” by an independent expert, and that he should pay half the costs of this, “the court deeming that the costs are a necessary and reasonable disbursement”.
The court in question consisted of three magistrates, along with a legal advisor. The separated parents of a three year-old boy were disputing the father’s access, along with a number of other parenting issues, including the child’s surname and his school arrangements. The father sought unsupervised contact with the boy but the mother opposed this. He was Serbian, with a limited command of English, but also acting as a litigant in person. The mother, by contrast, had legal representation.
The father took the issue to the Court of Appeal, where Lord Justice Ryder delivered a judgement very critical of the magistrates’ ruling. His Lordship quoted from a transcript of the original hearing:
Q “The mother is making an allegation that she believes she cannot agree to contact because she believes you may have a psychological problem that needs addressing”.
A “But that is wrong“.
Q “Well, that has yet to be proved. What I would like you to do, yes, it is to address the court as to why you think that is not necessary…………”
His Lordship noted that this placed the burden of proof on the father:
“…there is regrettably an inference that because the mother has made her allegations then without anything further, let alone any evidence, the father must justify his position. There is no reference to any evidence by anyone and no consideration in that context of a proper and fair process.”
This was “simply wrong”, declared the Judge.
In addition, the magistrates had not fully considered new rules on the use of expert guidance in court cases, introduced in 2013. These state that:
“Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings.”
Lord Justice Ryder did not believe the facts of the case warranted the inclusion of an expert, saying:
“This court knows from the transcript and from a Cafcass report of 9 September 2014 which was before the magistrates that the [Cafcass Family Court Advisor] had concluded that there were no safeguarding [protection] issues, that the risk of domestic violence was low and that the child enjoyed contact with his father. The [Family Court Advisor’s] aim had been to achieve fortnightly unsupervised contact in the community in due course and there was no obvious reason why that would not have been practicable or in the child’s best interests.”
The magistrates had anticipated that the mother’s share of the report costs would be to be covered by legal aid, the Judge noted, but no attempt was made to ascertain whether or not the father could pay.
Lord Justice Ryder concluded:
“For all these reasons the magistrates order cannot stand and must be set aside.”
In the Matter C (A Child) is available to read here.
Wow - and because that's a supreme court ruling, it's become precedent. That' could be very useful. That's definitely worth making sticky 🙂
Court of Appeal ruling... (one lower than the Supreme Court I'm afraid....)
Ah, thanks for correcting. Still precedent unless someone takes it that far.
Mother of our child who lives with me (father) has made her 2nd application for residency in 2 years.
On the grounds that i now have a job and that the kids grandparents collect her from school. It is complete and utter nonsense.
CAFCASS have recommended mother is served with a 91 14 bar in relation to making further applications for residency.
But is it worth applying for costs against her, i've been a litigant in person so far but she has a very expensive legal team behind her and i feel as if i need a barrister for the final hearing due to the nonsense accusations she is coming up with,
I suppose the question is, can you afford the barrister if you were to lose the order for costs? I would have thought that if carcass have made this recommendation, she is unlikely to succeed in her application, so it's a matter of making a judgment on whether you need a barrister, and if you do, then by all means make an application for costs, but you have to accept that you won't succeed in this at this stage
Ive not got 1500 pound to lose, but for the surrounding issues that are being dealt with ie my kid doing too much travelling maybe worth it.
How often do courts award costs.
If CAFCASS are recommending a bar from further vexatious applications, you can ask for wasted costs, but there's no guarantee you will be awarded them.
That said, generally speaking costs aren't not awarded against a parent with care as the court consider that the financial implication of that could have a negative impact on the child... as the child is living with you, and if she can afford her own very expensive legal team, the court may in this instance consider that an award could be made... but there's no way of knowing.
If your child is settled with you, unless there are serious safeguarding issues, the court rarely transfer residence of a child, as it wouldn't be in their best interests.
If CAFCASS have also come out in your favour and consider her application to be vexatious, I would say you probably don't need a barrrister... but only you can make that decision, if you really feel that your case would benefit from legal representation.
Best of luck
In a simple answer to your last question, as far as I am aware, it's pretty rare for the courts to award cost - there usually has to be something exceptional, and that would be much more likely to be against a non-resident parent wasting time/money of the parent with care.
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