“1. On2 April 2025 the magistrates made a final order on the father’s application for a shared lives-with order. They implemented a shared care arrangement, building up from the imminent start of overnight stays soon after the hearing through to a full shared care arrangement by September 2026. 2. The mother had agreed a cautious start to overnight stays, but advocated for a final hearing in the autumn once it was possible to see how that was going. She appeals the order, seeking a final hearing in the autumn with no further increases in the time that [M] is spending with his father. 3. The father also appeals the magistrates’ final order, his Respondent’s Notice supporting the making of a final order but criticising the magistrates for departing from what he asserts was the clear recommendation of the ISW for the shared care arrangement to begin sooner than the dates in the final order. He seeks confirmation of the making of a final order, but with a swifter series of steps implementing the final shared care arrangement, which he asserts was the import of the evidence of the ISW.”
“There is a general practice of not awarding costs against a party in family proceedings concerning children, but the court retains a discretion to do so in exceptional circumstances. These include cases in which a party has been guilty of reprehensible or unreasonable behaviour in relation to the proceedings. This practice applies equally in public law and private law proceedings, and irrespective of whether a party is legally aided. Nor is there any difference in principle between fact-finding hearings and other hearings. The court can make costs orders at any time: FPR r 28.1.”
“They looked at admissions made by the father at court, and other material including audio evidence of handovers and Whatsapp messages. The father’s counsel said that he accepted that his behaviour had been abusive, should not have happened, and that the mother would have felt belittled, humiliated and scared. He also conceded that [M] would have been emotionally harmed through being exposed to this behaviour at handovers. He nonetheless denied that his behaviour was coercive and controlling; the magistrates disagreed and found that it was. The ISW was directed to provide a welfare report by20 May 2024 and a DRA was listed in June.”
“At the outset of the hearing, the magistrates indicated their intention to make a final order. The mother objected but the father agreed. Mr Walker was waiting online to join the hearing, and the magistrates decided to ask Mr Walker his views on whether there could be a final order. In effect, the hearing simply went straight into Mr Walker’s evidence. In his evidence Mr Walker remained of the view that the ultimate aim should be for [M] to share his time equally between his parents. He made recommendations about how [M’s] time with his father should progress, however overall he agreed that increases should proceed at [M’s] pace and that [M] would be further harmed were he to be exposed to further parental conflict. The magistrates heard submissions but no evidence – not least because there was no time for this at the March hearing. They adjourned the conclusion of the case for them to prepare their reasons, which were handed down on2 April 2025 .”
“Whilst the mother was prepared to move cautiously forward with starting overnight stays under the watch of the court, a key issue in relation to the arrangements going forward remained the extent to which the father had achieved insight into his coercive and controlling behaviours and whether he had sufficiently demonstrated the ability to make and sustain change.”
“These reasons confirm my conclusion that the magistrates delegated their decision on risk to Mr Walker: they actually say as much in their reasons. In my judgment, having accepted Mr Walker’s assessment of risk, the magistrates fell into error by identifying the essential issue for them to determine in March as simply the issue of timescale. They simply failed in their reasons to refer to, let alone to determine, the disputes between the parents as to the father’s behaviour over the recent months and the likelihood that left to themselves, the parents would be able to agree matters relating to the progression of overnights. They did not explain why they no longer considered that they needed to hear the parents’ oral evidence …”
“The magistrates accepted thatPD 12J was engaged, but did not analyse the ongoing impact of that abuse on the mother. They did not explain, contrary to the requirements of that PD, how the mother – a victim of domestic abuse for which the father made no written apology (preferring to look forward rather than back) - could navigate the stepped changes proposed and reach a fully workable co-parenting arrangement with the father. As Ms Baker herself submitted, the magistrates simply “left them to it”…”
“In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including – a) the conduct of the parties; b) …”
“(a) conduct before, as well as during, the proceedings …; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended its case or a particular allegation or issue; …”
“Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority are a party.”
“Another consideration is that, in most children’s cases, it is important for the parties to be able to work together in the interests of the child both during and after the proceedings” and “Parents need to be able to co-operate with one another after the case is over … Stigmatising one party as the loser and adding to that the burden of having to pay the other party’s costs is likely to jeopardise the chances of their co-operating in the future.”
“Nor in my view is it a good reason to depart from the general principle that this was an appeal rather than a first instance trial. Once again, the fact that it is an appeal rather than a trial may be relevant to whether or not a party has behaved reasonably in relation to the litigation. As Wall LJ pointed out in In re M (A Child)[2009] EWCA Civ 311 , there are differences between trials and appeals. At first instance, “nobody knows what the judge is going to find” (para 23), whereas on appeal the factual findings are known. Not only that, the judge’s reasons are known. Both parties have an opportunity to “take stock” (para 24), and consider whether they should proceed to advance or resist an appeal and to negotiate on the basis of what they now know. So it may well be that conduct which was reasonable at first instance is no longer reasonable on appeal. But in my view that does not alter the principles to be applied: it merely alters the application of those principles to the circumstances of the case.”
“22. While the parties had agreed that the hearing in March would not be a final hearing, they did not agree on interim issues. I accept that the mother had taken reasonable steps to save the costs of a contested hearing. I do not accept that the father was unreasonable in wishing to retain the hearing to deal with what should happen in the interim. 23. It is true that the father readily and swiftly accepted the magistrates’ decision to make a final order, however in my judgment, however unwelcome that was for the mother, it cannot be said that the father was unreasonable to do so. It was their decision not his, and within litigation he was entitled to take advantage of the position of the court and to seek the best possible result with the tribunal he was appearing before. 24. It is true that the mother was not able to apply for costs at the end of the first hearing – because, of course, she was not the “successful” party. That said, she had not prepared and served an N260 prior to the first hearing, and she had not indicated an intention to seek costs when she faced the fact that the father would not agree to vacate the hearing. She was not, on that basis, intending to make an application for costs whatever the outcome in March. 25. The reasons why costs orders are not generally made in first instance trials apply in full in this case. 26. There should be no order for costs.”