High Court Considers Costs Issues in Child Return Case: MB v KB & Ors (Costs)

Introduction

In the case of MB v KB & Ors (Costs) ([2023] EWHC 3299 (Fam)), the High Court of Justice delves into the costs issues following a dispute about the summary return of two children to Qatar. The father’s application for the children’s return was dismissed, and the consequential decisions about legal costs form the crux of this analysis. The court’s approach in this case provides considerable insights into the principles applied in the context of family law matters, particularly concerning costs’ allocation in proceedings.

Key Facts

MB initiated proceedings for the summary return of his children, AB and BB, following their removal to England by their mother, KB. The court dismissed his application and subsequently addressed an array of costs disputes through written submissions. Concerns included the general costs of the application, costs of expert reports on Qatari law, translation fees for documents from the Qatari proceedings, and costs associated with an unsuccessful application by the father for a disclosure order against the Home Office.

Legal Principles

The court tackled each costs issue by applying legal principles grounded in the Civil Procedure Rules (CPR) and Family Procedure Rules 2010 (FPR). Notably, the court clarified that the general rule pertaining to costs in CPR r.44.2(2) does not apply as FPR r.28.2(1) dislodges it in cases governed by FPR. Instead, the court maintains a broad discretion in cost awards. The principles derived from Hayden J’s decision in SB v MB (Costs in Hague Convention Proceedings) [2014] EWHC 3721 (Fam) were particularly influential, emphasizing that cost orders should reflect an inquiry into the case’s merits and parties’ conduct. The principles underscore the absence of a presumption for ‘no order’ of costs in child abduction cases and identify ‘reprehensible behaviour’ or ‘an unreasonable stance’ as situations that might prompt an adverse costs order. These principles align with those observed in EC-L v DM (Child Abduction: costs) [2005] EWHC 588 (Fam).

Outcomes

Applying these principles, the court decided as follows:

1. The general costs of the application were to follow the general principle of ‘no order as to costs’ since the father’s action, though unsuccessful, was not deemed unreasonable or reprehensible.

2. The costs for expert reports on Qatari law were to be equally shared by both parents. Although the expert evidence obtained was unsatisfactory, it was deemed necessary, and the instruction was initially agreed upon as a joint one.

3. Translation costs for Qatari documents were also to be split equally. While extensive translations were deemed unnecessary, their relevance was assumed by the parties’ decision to translate.

4. Regarding the disclosure application against the Home Office, no order for costs was made. The father’s application for disclosure did not amount to reprehensible behavior or an unreasonable stance warranting an adverse costs order.

Conclusion

MB v KB & Ors (Costs) illustrates the discretionary scope the court maintains when ordering costs in family proceedings, emphasizing the necessity to review every case’s specifics and the conduct of the parties involved. In this case, shared responsibilities in costs reflect an equitable approach that neither penalizes nor rewards parties unnecessarily, adhering to the overarching principle that the welfare of children is paramount. The court’s reliance on previous case laws and procedural rules ensures a fair and consistent adjudication of costs, providing a framework that legal professionals can consider in similar future family law disputes.