A common question received from client’s going through private children law proceedings is whether they can retrieve their legal costs from the other party. This is a common concern particularly for parents who are not spending time with their child/children and are seeking to make a court application.

The general rule on costs

In private children proceedings, the general position is that it is unusual for the court to make a costs order. Although such proceedings are subject to the general rule that the court may at any time make such an order as to costs as it thinks just.

Why are costs uncommon in private children proceedings?

The court’s primary focus in children cases is the welfare of the child . Ordering one party to pay the other’s legal costs can often undermine that objective.

Cost orders are generally avoided because they:

• Will reduce the funds available to meet the needs of the family.
• Are likely to increase tension between the parties, which would not be in the best interests of the child,
• Can damage future co-operation, which is essential for effective co-parenting
• May deter a parent from bringing a application which may be in the best interests of the child

When can a costs order me made?

Although costs orders in private children act matters are uncommon, there are instances in which costs orders have been made; some of which are:

• Unreasonable refusal to engage in mediation
• Serious allegations proven at a fact-finding hearing
• Where an application was made where the child was close to the age of 16 years old with no exceptional circumstances.
• Unreasonable or inappropriate behaviour of a party
• Where despite having expert evidence to the contrary, an individual maintains their position

Giving notice

Where a party finds themselves in a position where they feel as though they have the grounds on which to make a costs application, it is good practice to give the other side notice of your application. A costs schedule should be served not less than 24 hours prior to the hearing.

Practical tips

If you are involved in private children proceedings, there are steps you can take to reduce the risk of a costs order being made against you:

• Demonstrate a willingness to try methods of non-court dispute resolutions before considering a Court application
• Maintain reasonable positions based on available evidence
• Ensure you keep your focus on the child’s best interests
• Keep detailed records of any unreasonable conduct by the other party

How Switalskis can help

While it is natural to be concerned about legal costs, the court's priority will always be the wellbeing of the child. Costs orders are the exception rather than the rule, but they can arise where a party's conduct falls outside what the court considers reasonable.

If you are unsure about your position or considering making an application, seeking early legal advice can help you understand both the risks and your options. Our experienced family law solicitors is here to support you through every stage of the process. If you would like tailored advice on your situation or guidance on private children proceedings , please get in touch with us today.