CASE

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Case Name

E.C.-L. v. D.M. (Costs in Hague Convention Proceedings) [2005] EWHC 588

INCADAT reference

HC/E/UKe 783

Court

Country

UNITED KINGDOM - ENGLAND AND WALES

Name

Family Division of the High Court

Level

First Instance

Judge(s)
Ryder J.

States involved

Requesting State

PORTUGAL

Requested State

UNITED KINGDOM - ENGLAND AND WALES

Decision

Date

11 April 2005

Status

Final

Grounds

Procedural Matters

Order

-

HC article(s) Considered

26

HC article(s) Relied Upon

26

Other provisions
English procedural rules on costs.
Authorities | Cases referred to
Sutton London Borough Council v Davis (No 2) [1994] 2 FCR 1199.

INCADAT comment

Implementation & Application Issues

Procedural Matters
Costs

SUMMARY

Summary available in EN | FR | ES

Facts

The case related to a Convention application for the return of a child to Portugal. The application was withdrawn on 15 November 2004 following an indication by the trial judge who found the mother to have been unreasonable in her conduct of the case by reason of her persistent pursuit of uncorroborated, false allegations.

The latter included, inter alia, allegations the father had kidnapped his child and forged documents. Despite compelling documentary evidence the mother persisted until the final hearing in maintaining her allegations against the father.

Having been wholly successful in the outcome of the proceedings the father asked for his costs against the publicly funded plaintiff. A subsequent hearing was convened to consider this issue. The England & Wales Central Authority was invited to make submissions.

Ruling

An order for costs could be made against an applicant in Convention proceedings, although this should only happen in exceptional cases. In the instant case an order would be made because the mother had acted unreasonably in her pursuit of a return order, which she was ultimately advised to withdraw.

Grounds

Procedural Matters

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.

INCADAT comment

Costs

Preparation of INCADAT commentary in progress.