HC/E/UKe 783
UNITED KINGDOM - ENGLAND AND WALES
Family Division of the High Court
First Instance
PORTUGAL
UNITED KINGDOM - ENGLAND AND WALES
11 April 2005
Final
Procedural Matters
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The Court noted that whilst the general rule in English civil proceedings that the unsuccessful party pays the successful party's costs did not extend to family proceedings, there was nevertheless statutory power to make costs orders in family proceedings, including child abduction proceedings. The mother and the Central Authority argued that this power was restricted by the provisions of the final paragraph of Art 26 of the Convention. The Court held that this was directed at the 'Central Authority and other public services' of the Contracting State and should not be interpreted purposively to exclude the power to make costs orders against plaintiffs. The Court held that there was nothing inimical to the operation of the Convention in the application of ordinary public funding costs principles against an unsuccessful plaintiff. It further stated that this was particularly so where the Convention had specifically provided for the integrity of Contracting States' legal systems and public funding systems to be protected, provided the plaintiff was not subject to charges from the Central Authority or the State's other public services for the publicly funded services that he or she had received. The Court further accepted an argument from the father that to remove the possibility of obtaining costs from a plaintiff in all cases where a defendant had been successful would be incompatible with the ECHR in that it would tend to deter genuine defendants from pursuing their Article 8 ECHR rights and their rights of custody and access. The mother and the Central Authority further argued that the court's costs jurisdiction should not be exercised as a matter of public policy unless there had been impropriety on the part of the plaintiff's lawyers. In this they argued that there was an imperative not to deter genuine applicants. The Court noted that the only public policy relating to the power to impose costs on a funded plaintiff were those set out in section 11 of the Access to Justice Act 1999, conditions which were moreover entirely clear. Nevertheless the Court held that it would be helpful to consider whether in family proceedings there is or ought to be a 'usual order' and if so, why and whether that order should be applied or varied for child abduction proceedings. The Court ruled that: "a. the aspiration is that in the outcome of child abduction proceedings the child is the only winner because the objects of the Convention have been satisfied thereby discouraging parents from engaging in self-help and secondary abduction; b. the spectre of an order for costs should not discourage those with a proper interest in the child from participating either in the Convention proceedings themselves or the domestic proceedings that often follow; c. neither the court nor the Convention should as a matter of practice characterise one party as the successful party entitled to costs and/or funding and the other party as the unsuccessful party who is not entitled to costs and/or funding nor should there be any difference in treatment as to the risk of a costs order which is solely dependent upon the party's status as plaintiff or defendant." The Court held that there was no statutory basis for the court's discretion only to be exercised when a funded party's lawyer has acted improperly. Unreasonable conduct should include the deliberate and persistent falsification of a case in an attempt to deprive a child of his or her habitual residence or otherwise by those falsehoods an attempt to deny or render ineffective the rights of custody and access and the ECHR Article 8 rights of both the child and the other parent. The Court further noted that there was no basis under the current rules to make a distinction between children proceedings generally and Convention proceedings. The Court concluded that in each case where a costs application was made there should be a costs inquiry on the merits, having regard to the statutory test in section 11(1) of the 1999 Act. However, it should be the expectation in child abduction cases that the usual order will be no order as to costs but where a party's conduct has been unreasonable or there is a disparity of means then the court could consider whether to exercise its discretion in accordance with normal civil principles. In the instant case a costs order would be made in the light of the mother's behaviour.
Preparation of INCADAT commentary in progress.