J v E (Habitual Residence)
[2024] EWHC 196 (Fam)
J v E (No2)(Case Management)
24 May 2024
[2024] EWFC 107
High Court
A mom and dad fought in court about their daughter. The judge helped the mom pay her lawyers because she couldn't afford it otherwise. The judge didn't make the dad pay, as that's unusual in family cases. The court then rearranged the court schedule because getting information from Zambia was taking too long.
Key Facts
- •Proceedings concerning a 3-year-old girl, A, whose mother, E, is from Zambia, and father, J, is a British citizen.
- •Father initially sought A's return to England and Wales; the Court of Appeal clarified the application included child arrangements and contact orders.
- •Mother applied for permission to remove A to Zambia permanently and for financial provision under Schedule 1 of the Children Act 1989.
- •Father's initial application was dismissed, appealed, and remitted to the High Court, where it was decided A was habitually resident in England and Wales.
- •Disputes exist regarding the beneficial ownership of the family home (£1.85M purchase price, later jointly owned), a £850,000 investment in the mother's Zambian business (loan or gift?), a Bentley's ownership, and the mother's income and earning capacity.
- •Allegations of sexual assault against the father by the mother during a contact visit in Zambia, denied by the father.
- •The court had made requests for documentation from Zambian authorities; difficulties with service delayed proceedings.
- •Mother applied for a costs allowance and the father for a costs order against the mother due to her stance during the habitual residence dispute.
- •Interim financial arrangements are in place (father pays home outgoings and £1,500 child maintenance).
Legal Principles
Principles for costs allowances in Schedule 1 applications mirror those for legal services payment orders under s.22 ZA of the Matrimonial Causes Act 1973.
Rubin v Rubin [2014] 2 FLR 1018; BC v DE (Proceedings under Children Act 1989: Legal Costs Funding) [2017] 1 FLR 1521
In costs allowance applications, the applicant must show they cannot reasonably obtain legal representation without the allowance, considering the reasonableness of their stance and merits of their claim.
Currey v Currey (No2) [2007] 1 FLR 946; Rubin v Rubin [2014] 2 FLR 1018; G v G (Child Maintenance: Interim Costs Provision) [2010] 2 FLR 1264
Costs orders in children proceedings are rare due to the need to preserve family funds and avoid exacerbating parental conflict.
Re T (Care Proceedings: Serious Allegations not Proved) [2012] UKSC 36; Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317
Unreasonable conduct may justify a costs order in children cases, but this is exceptional and requires careful consideration of all circumstances.
Timokhina v Tomohkin [2019] EWCA Civ 1284; Re A and B (Parental Alienation No 3) [2021] EWHC 2602 (Fam); C v S [2022] EWHC 800 (Fam); Re N (A child) v A and others [2010] 1 FLR 454
Beneficial ownership can be determined within financial remedy proceedings, without separate civil claims.
Tebbutt v Haynes [1981] 2 All ER 238; TL v ML [2006] 1 FLR 1263
Outcomes
Costs allowance of £113,352 granted to the mother.
Mother demonstrated inability to secure funding elsewhere; the father's open offer was inadequate; equality of arms benefits A.
Father's application for costs refused.
Costs orders in children cases are rare; mother's actions were not unreasonable despite Moylan LJ's observation that A's habitual residence in England and Wales was a strong case on paper.
Case management timetable amended.
Delays due to service difficulties with Zambian authorities necessitate adjustments; the finding of fact hearing moved to July.