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Children proceedings - overviewGeneral principles
The Children Act 1989 contains no provisions in relation to costs. The general principles of the Civil Procedure Rules 1998 and the Family Procedure Rules 2010 apply, subject to case law. The general principle that costs follow the event does not apply to family proceedings.
The approach established in case law in children cases is that it is unusual to make an order for costs. This is partly because an order for costs against, for example, one parent could increase the tension between the parents. This may reduce the likelihood of future cooperation between the parents, affecting the welfare of the child. The welfare of the child is not the court's paramount consideration when considering the issues of costs, but it is a factor it should take into account. In addition, in children cases parties should not be deterred from taking court proceedings if they have a reasonable case for fear of a costs order being made against them.
The court retains discretion to order costs and may do so if it regards the circumstances as exceptional. This will generally only occur where the paying party has been unreasonable in their conduct in connection with the proceedings, eg by unjustifiably bringing proceedings. The unreasonableness relates to the conduct of the litigation rather than in relation to the welfare of the child. It is not necessarily unreasonable to bring a case that may be subsequently seen as hopeless, provided it is understood that should it be pursued after it has become clear that the result is a foregone conclusion, costs may be awarded.
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