In the recent matter of Mahmoud v Glanville & Anor in the High Court Family Division, Moore Barlow acted on behalf of the father before Mr Justice MacDonald. In this child arrangement dispute, the court had to grapple with repeated and dangerous behaviour by the mother, including abduction and concealment of the child from his father and authorities for eight months, who demonstrated a pattern of persistent litigation designed to frustrate and prolong the process as well as harass and intimidate.
Ultimately, Mr Justice MacDonald found in favour of the father, ordering that the child lives in his sole care. The findings, and the outcome are recorded in the public judgements, here and here, and in our own case summary, here.
In addition to the ruling concerning child arrangements, the court also made a significant costs order. Typically, in children proceedings, each party is responsible for their own costs. This presumption exists to stop parents using their children and the proceedings as a means for a financial fight, and ensures that courts keep their focus on welfare, rather than punishment. However, that principle has always contained a safety valve. The court retains discretion to depart from the usual position where a parent’s behaviour crosses the threshold of being “unreasonable or reprehensible”.
Mr Justice MacDonald found that threshold was crossed here and made a costs award of £115,000, including a £20,000 payment to the Access to Justice Foundation to reflect the value of pro bono representation that the father received.
Accountability in family law
So, it begs the question, why does this matter beyond the facts of one case? A fair answer is that it sends a clear message about accountability.
While parents are able to litigate and bring real issues before the court, they should not be able to deliberately conceal a child, repeatedly breach orders, or make false allegations designed to clog the process and punish the other parent. When that conduct is shown there needs to be consequences.
In this specific case, those consequences firstly aimed to protect the welfare of the child – the mother was refused direct contact with the child, and her parental responsibility was tightly circumscribed with orders preventing her from accessing information about the child’s education, health and whereabouts. The non-molestation and s91(14) barring orders were also extended.
The costs element of the judgment adds an extra layer to this. As mentioned, awarding conventional costs to a successful party in children proceedings is uncommon. Ordering payment to a charity to reflect the value of pro bono representation is rarer still. The court’s use of s194 of the Legal Services Act to make a pro bono costs award acknowledges a truth we see every day in practice. Pro bono lawyers do vital work in providing skilled representation in family disputes where parties cannot afford it. When the court directs contribution to the charity that funds that work it is recognising that access to justice is not an abstract ideal; it is funded labour and expertise. A pro bono costs order thus performs two jobs; it compensates the successful party for litigation brought about by reproachable conduct and it also nourishes the ecosystem that makes access to representation possible for those who need it.
Key Takeaways
There is a practical lesson here for both practitioners and parents. If you act for a parent who seeks to litigate persistently without proper foundation you must be ready to show why the court should allow continued and persistent applications. If you are a parent thinking of returning to court as a form of pressure, think about why you are doing so and be prepared to accept that repeated litigation, deliberate breaches and concealment will justify significant curial pushback from the courts.
The child’s welfare must remain the first consideration. However, welfare cannot be protected if one parent repeatedly flouts orders and uses the court as a weapon. This case shows that the judiciary will step in when it needs to.
Finally, this judgment is a reminder of why pro bono representation matters in family law. The father in this case would not have been able to sustain legal assistance after all of the unnecessary legal costs already incurred as a result of the mother’s conduct. Instead, he benefited from pro bono advocacy at the final hearing and support from a firm who committed time and expertise on a public interest basis
The pro bono costs element of the order will not only assist the pro bono charities involved, but it also underlines that the public interest in ensuring children are protected will sometimes require professionals who can offer pro bono assistance to step forward. For a system that prides itself on humane adjudication that is something to welcome.
Road Ahead
The case does not change the rule that proceedings involving children are not a battleground for costs. However, what it does do is clarify that where behaviour is shown to be wholly unreasonable or reprehensible, the court will not simply look the other way. That acts in itself as a protection for children and for the integrity of our family justice system.
Victoria Walker is a Partner in the family team at Moore Barlow
