The High Court made no order as to costs after proceedings under the Hague Convention resulted in Alice, a minor, being returned from Ireland to her habitual residence in Northern Ireland.
In a judgment delivered on 6 July 2023, Ms Justice Mary Rose Gearty considered the mother’s application for the father to pay the costs of the summary return proceedings, including the costs of the Legal Aid Board. The mother had legal aid; the father had privately retained lawyers.
The return order followed a contested, one-day hearing. On the hearing date, the mother had made an open offer to agree to Alice’s return, stayed until the end of her school year in Ireland. The father rejected it. The mother argued that the father should bear the costs, relying on the general rule that costs follow the event, the offer, and his conduct in facilitating Alice’s move and contesting the offer. The father submitted that each party should pay their own costs, as is usual in family proceedings. He said he had only minutes to consider the offer and had not otherwise added unduly to the case’s complexity or length.
Justice Gearty said Hague Convention return proceedings remain family-law proceedings. A return order restores the previous position so a court better placed to examine the relevant facts can address the substantive issues; it does not finally resolve those issues. The court therefore did not treat the return outcome as a conventional win that would itself justify costs.
The father had not established unequivocal consent to Alice’s removal. The court also considered Alice’s objections to return, which it said had to be taken very seriously given her age, alongside the Convention’s objectives and her separation from her siblings. It found that returning her to Northern Ireland, where a relocation application had been made, was necessary so her home situation could be considered by the appropriate court. The return order was not an obvious or clearly compelling outcome, the father’s defence was not vexatious or spurious, and he had not unduly prolonged the case.
Although the court considered the mother’s offer reasonable and found its rejection added to the proceedings, it was made minutes before the hearing. The father’s conduct was not arbitrary or capricious, and the court did not consider that his contesting of the case had been unreasonable. It concluded that the offer and other circumstances did not provide sufficient reason to depart from the usual family-law approach. Applying the legal-aid legislation, it assessed costs as if the mother had funded her own case. The court made no order as to costs.