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We report here on a recent family case heard in the Court of Appeal before Richards LJ where once again, an Appeal Court was rather unsparing in its criticism of the Judge below and the advocate who appeared in the lower court.

The case is B v B [2015] EWCA Civ 1166 and concerns proceedings relating to custody of 2 boys. There had been prolonged litigation between the mother and father, but at the relevant time, the boys were living with their father. In accordance with agreed arrangements, the mother took them on holidays to her home in Germany, but then did not return them as required.

The father commenced 2 separate sets of proceedings, the 1st in the English Courts and the 2nd by way of reference to the German Authorities under the Hague Convention. Orders were successfully obtained in both sets of proceedings for the return of the boys and eventually the boys were forcibly removed from Germany back to their father. It is the fact that there were 2 separate sets of proceedings which led to the substantive problem which the Court of Appeal had to resolve.

In the lower Court, the Judge rejected the mother’s application for the boys to go and live with her in Germany and directed that they continue to live with the father. He made a detailed contact order and ordered that no party was to make a further application for 2 years. However, it was the order on costs which caused the main issue. The Judge made an order in the following terms:

“M do pay R’s [i.e. the father’s] legal and incidental costs of and occasioned by the Hague Convention proceedings in the High Court of Justice Family Division to be assessed if not agreed and shall pay £12,500 on account by 25.7.14.”

Permission to appeal was refused on all grounds save in relation to the order for costs, with permission there being granted because there was an argument that the Hague Convention proceedings had been concluded and were not properly before the English Court.

The Court of Appeal found that the Judge in his Order had wrongly conflated the proceedings in the English High Court and the Hague Convention proceedings. It found that it was certainly within the Court’s jurisdiction (and well within the Judge’s discretion) to award costs against the mother for her flagrant breaches of the order made in the English Courts. However, the matter of costs in the Hague Convention proceedings was exclusively a matter for the German Courts. An order had been made there, but the father had not claimed the travel expenses which had been incurred in having to go to Germany for the various hearings and it was found that he was now out of time in Germany to make that claim. The relevant provision was Article 26 of the Hague Convention.

It was clear from the terms of the order made that the Judge had confused the 2 sets of proceedings and had not been assisted by Counsel at the hearing. The Hague Convention proceedings were not in the High Court of Justice Family Division as stated in the order.

The claim for costs was in the order of £19,500. Of that £7500 related to 3 trips to Germany and a further £12,000 was claimed in what the Appeal Court said was an “ill-defined” manner, with no schedule having been submitted for consideration of the same.

The Appeal Court dismissed various heads of appeal brought by the mother but did find substance in the argument that there had been a variation in the level of the claim for costs and said that it really went without saying that if there is an intention to ask for costs then there is a need for a schedule justifying the same so that there can be a reasoned assessment. However, the most fundamental point was that the English Courts simply did not have jurisdiction to make an order in the Hague Convention proceedings and therefore, on the face of it, the £7500 travel expenses were exclusively a matter for consideration by the German Court. Counsel for the father argued that the order in the English Court was a touchstone for what followed in Germany and that the German Court simply replicated the order in the English Court.

Richards LJ roundly rejected that argument and could not accept “for a moment” that it could be correct. He noted that the order made in the English Court was under the Childrens Act and therefore explicitly was not an order under the Hague Convention. Article 26 confers jurisdiction to order travel costs (et cetera) upon the Court which makes the return order “under the Convention” and does not give jurisdiction in free-standing domestic proceedings. Under the Convention it is the Court of the requested state which makes the order and any other interpretation would lead to a proliferation of costs applications, double counting and wasted costs.

The German Court could have dealt with the travel expenses claim, probably would have done if they had been asked to do so and it was simply not acceptable to treat the English Court as a long stop in those circumstances.

The terms of the order made in the Court below therefore would have to be redrafted. The mother quite properly should pay the costs of the application in the English Court but the payment on account would be reduced to £3000.

Whatever the justice of the situation may seem to a reasonable bystander, the Judgment here reinforces the need for close scrutiny of relevant authorities and statutes and that perhaps the fairly summary way in which many claims for costs are dealt with can (and often will) lead to mistakes being made.

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