When it comes to civil litigation, who should pay the costs is usually determined by who won the case.
Unsurprisingly, that language is not appropriate when the subject to be determined is what is in the best interests of a child – labelling parents in that way is not conducive to them being able to parent better into the future, and the court is keen to avoid costs being a factor when parents are making decisions about whether to bring a welfare issue to the attention of the court. The court accepts that each parent may take a different approach as to what is best, without being subject to criticism. Costs orders will diminish the funds available to meet the needs of the family and may exacerbate feelings between the parties to the ultimate disadvantage of the child.
So how are costs determined?
The starting point is that there is 'no order as to costs' which means that each person/parent is responsible for their own costs.
In exceptional circumstances, the court can make costs orders. For example where a parent has been guilty of 'reprehensible or unreasonable behavior in relation to the proceedings'. Crucially the 'unreasonableness' must relate to the conduct of the litigation rather than the welfare of the child. The court will consider whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue and the manner in which they have pursued or defended an allegation or issue. For example, in RC v FP [2025] EWFC 124 the court considered the fact that the father had failed to attend the hearings. The court will consider whether either party has attempted to reach agreement for example by putting forward proposals.
In YE v ZY [2024] EWFC 293 the facts were extreme – the expert said of the mother (who had made various allegations against the father): 'she has a need to pathologize her son, which continues; she has a need to demonize his father, which continues. And she confuses her inability to persuade the father to agree in her medicalization of their son, and otherwise to bend to her will, with emotional, psychological and financial abuse.'
The Judge was clear that whilst the court is concerned to discover what will be best for the child, and parents with a reasonable case to put forward should not be deterred from doing so, here the mother's case was not reasonable. Furthermore, the mother's views are sufficiently entrenched that a costs order will not make a difference.
The court may also consider the extent to which a parent was willing to pursue Non-Court Dispute Resolution options – for example in AM v RF [2024] EWFC 288 a mother was ordered to pay 50% of the father's costs in circumstances where she had not actively pursued mediation.
Legal funding
Where there is a disparity of financial resources it may be possible for one parent to request funds from the other to pay for their legal costs. Courts are concerned that there should be a degree of parity when it comes to parents' ability to access legal support.
To make a successful application for legal funding, one parent must show that:
- They cannot reasonable pay for the proceedings themselves; and the other parent has sufficient resources of their own to be able to contribute.
- The issues before the court require the court's attention and cannot be resolved otherwise.
- The period for which they require support is reasonable – courts are less likely to order funding for costs that have already been incurred, and are likely to take a short term view of future costs – providing for funding to the next hearing but not beyond.
- The order will not unnecessarily impact on the paying parent's financial position and ability to fund their costs and meet their needs
The court is willing to intervene to ensure that parents are able to pursue reasonable cases in the best interests of their children, and is keen to seek to preserve the possibility of an improvement in parenting relationships. However, where parents pursue unmeritorious claims and behave reprehensibly they do so at risk of being on the hook for not just their costs but that of the other parent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
