The High Court has made no order as to costs following an appeal concerning access to and custody of a child, finding there was nothing in the case or Mr X’s conduct to justify an order against either party.
Mr Justice Max Barrett delivered the judgment on 17 November 2020, after receiving written submissions from both parties. Ms Y had sought costs arising from the substantive proceedings. Mr X argued that there should be no order, so each would bear their own costs.
The judge said courts should be slow to award costs against one party in family law cases, while retaining the power to do so where a case, a party or their conduct merits it. He considered Mr X’s wish for greater access and physical custody, which he appeared to pursue in good faith, a reasonable basis to bring the application. Although Mr X could have raised the issues in forthcoming divorce proceedings, he was not obliged to wait.
The judgment addressed Mr X’s submissions about the earlier decision on custody and access. The judge said the appeal had been decided on the entirety of the evidence, after considering the statutory factors. He rejected the suggestion that the application had failed simply because there was no expert report. Such evidence was not mandatory, he said, and the court had decided it could properly reach judgment on the evidence available.
The judge also explained that he had discretion to commission a report under section 47 of the Family Law Act 1995 but chose not to do so. Mr X’s position on the proposed 50/50 custody arrangement had shifted between immediate equal custody and a gradual increase, without detail about how that process would work. The judge said obtaining a report on those “shifting sands” would be challenging. He also considered whether prolonging the acrimonious application and associated stress for Ms Y was in the child’s best interests, particularly with divorce proceedings due to address custody.
The substantive judgment had described the proposal as a radical restructuring for a child not yet three, rather than a minor change to existing arrangements. In the costs judgment, the judge rejected Mr X’s argument that Ms Y’s offer of additional overnight access amounted to an acknowledgement that the existing arrangements were too restrictive or that equal custody was justified.
The order was limited to costs: the court made no order, meaning each party bears their own costs. The judgment did not alter the custody arrangements in the substantive decision.