The Court of Appeal has refused costs to both sides after parents lost an appeal seeking orders concerning their three children, including an order to halt the adoption in England of their youngest child.
The judgment, delivered by Ms Justice Máire Whelan on 24 July 2020, dealt only with the costs of an appeal decided on 9 April 2020. The parents, identified as C.E. and N.E., had failed to overturn a High Court decision refusing their requested consequential relief. The Court of Appeal refused the parents’ application for costs and Hampshire County Council’s application for its costs.
The dispute followed the family’s move to Ireland in September 2017. Hampshire had interim care orders in England and Wales for the two older children. The judgment recounts that Hampshire obtained an Irish enforcement order ex parte and that the Child and Family Agency obtained interim care orders for all three children. The children were then taken to England before the parents learned of the court application.
In an earlier judgment, the High Court found that Hampshire had failed to provide material information when seeking the ex parte order. The parents later succeeded in setting that order aside. But the High Court refused their subsequent request for relief that would bring the children to Ireland or transfer the English proceedings, and refused to halt the youngest child’s adoption. The Court of Appeal appeal against that refusal was unsuccessful.
Hampshire argued that the usual rule that costs follow the outcome should apply. It also asked the Court of Appeal to refer whether the parents’ solicitors should face a costs inquiry. The parents argued that the circumstances, including alleged violations of their constitutional rights and novel legal issues, justified an exception to the usual rule.
Justice Whelan said Hampshire should receive no costs because its conduct in the original proceedings had precipitated the later litigation. The court cited prior High Court findings of serious impropriety, including failures to disclose relevant material and to serve the parents before the orders were executed. It also noted that the youngest child’s adoption had been completed.
The court found no evidence that the parents’ solicitors had acted improperly and refused the requested referral for an inquiry. It also refused the parents’ costs application, concluding that they had not met the threshold for an award. The judgment said their litigation was primarily directed at restoring their relationship with their children, with wider public importance a secondary consideration.
Justices Costello and Noonan concurred. The judgment did not alter the underlying refusal of the relief sought in the appeal; it determined the costs applications arising from that appeal.