Child law

Why you must engage with the court in children proceedings

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Walker Family Law
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Why you must engage with the court in children proceedings

Kris Seed - Senior Chartered Legal Executive - Head of Private Law Children Team children proceedings
Kris Seed – Senior Chartered Legal Executive – Head of Private Law Children Team

When parents separate they will have to sort out arrangements for their children, in particular as to what time the children will spend with each parent. Hopefully, they will be able to do this by agreement. But if they can’t agree matters then they will have to be resolved by the court.

Obviously this involves one party issuing court proceedings. This in turn means that the other party may have proceedings against them. They are the ‘respondent’ to the proceedings.

But often the respondent will be aggrieved at the other party issuing proceedings against them. Perhaps they felt that the proceedings were unnecessary, perhaps they don’t want their private family affairs dragged through the court, or maybe they just don’t like the idea of being told what to do by the court in relation to their own children.

Whatever, it is quite common for the respondent in children proceedings to be reluctant to engage with the court, which will expect them to take various steps in the proceedings, including attending hearings and filing evidence with the court.

That reluctance can even lead to a complete failure to engage with the court.


Costs consequences

The Royal Courts of Justice

Needless to say, this is a potentially disastrous course of action (or perhaps that should be ‘inaction’).

Obviously, by not engaging with the court the respondent will not be putting their case before the court, and will thereby be risking the likelihood that, without hearing evidence from them, the court will make orders that they will not be happy with

There is, however, something else: the respondent also runs the risk of serious costs consequences.

The normal rule as to costs in children proceedings is that each party should pay their own legal costs. Unlike in other types of court proceedings, there is no rule that the loser should pay the winner’s costs. In fact, we do not even consider that there are ‘winners’ and ‘losers’ in children proceedings.

That is not to say, however, that the court cannot order one party to pay the other’s costs in children proceedings, only that such orders are extremely rare.

But they can happen, as a case reported last week demonstrates.

Barely any effort to engageBoy on a plane

The case concerned a father’s application for orders in relation to his seven year-old son, in particular a contact order and an order giving him permission to take the child abroad for the purpose of holidays. The application had been made after arrangements regarding the boy had broken down.

The mother opposed the application and the court, as is normal, ordered her to file evidence in support of her case. She failed to do so, despite the court taking action to enforce the order. She also failed on numerous occasions to respond to communications from the husband’s solicitors. In fact, she essentially failed to engage in the proceedings at all until just days before the final hearing.

The hearing went ahead and the father obtained the orders he was seeking. He then applied for an order that the mother contribute to his legal costs, on the basis that his costs were considerably higher than they would have been had the mother properly engaged with the proceedings.

Hearing the costs application the judge acknowledged that costs orders are rarely made in proceedings between parents relating to arrangements for their children. However, she found that the mother’s conduct in this case was unreasonable.

She said that the mother had barely made any effort to engage in the proceedings, which were justifiably commenced by the father. In the circumstances, she ordered the mother to make a contribution towards the father’s legal costs, in the sum of £15,000.

The case demonstrates that, no matter what you feel about children proceedings being brought against you, you must engage with the court and, indeed, with the other 500 leading firm logo