Cambridge Family Law Practice

The Family Division of the High Court has awarded costs to the father of two children after their mother’s appeal against a finding of her parental alienation failed.

In Mother v Father (2023), a fact-finding hearing in a family court 2021 found that, on the balance of probabilities, the mother had alienated the couple’s two children against the father. She applied for permission to appeal this ruling from the Judge who made the Order, but this was refused. But a second attempt was successful, with Mr Justice Peel KC allowing an appeal on one specific ground: the inclusion of unregulated expert witnesses in court hearings. This has been a hot topic for the family court over the last few years, and we have blogged about it previously.

When this appeal came before Family Division President Sir Andrew McFarlane, it too was dismissed. In his ruling, the President criticised the Association of Clinical Psychologists (ACP), who had contributed to the mother’s appeal, a process known as ‘intervening’.

This was because, Sir Andrew explained, during the proceedings, the ACP had submitted a second argument that:

“…represented a significant departure, without the leave of the court, from the basis upon which (in its own words) the ACP… had sought, and were permitted with the consent of all parties, to intervene in this appeal…”

Meanwhile the mother’s legal team had argued that an instructed expert witness referred to as Ms A was not suitably qualified, but this failed to convince the Judge as she was unable to provide any compelling evidence for this claim.

The father subsequently applied for a costs order against the mother and the ACP – meaning they would have to pay at least some of his legal costs incurred by the now unsuccessful appeal. The father had warned the mother beforehand that he would do so if she proceeded with her litigation. After a detailed analysis of the behaviour of both parties, Sir Andrew concluded that the mother should indeed pay half the father’s costs, but he did not hold her responsible for the additional costs incurred by the actions of the ACP.

The President explained:

“Whilst, for the reasons given in the main judgment, it can properly be said that its litigation conduct within the appeal was misguided, ill-conceived and possibly naïve, I do not consider that the association acted out of malice or for some other reprehensible motive.”

He added:

“Where a non-party [a person or organisation not directly involved in the case] has been given permission to intervene and becomes an intervener by reason of its special interests and / or knowledge, it has a responsibility to assist the court in respect of the issues before it. Where an intervenor is found to have acted beyond the remit of the permitted intervention, or acted in contradiction to the court’s direction and / or is found to have acted unreasonably and, in doing so, not to have assisted the court, it is likely to be at risk of an adverse costs order.”

The ACP was also ordered to pay the father £10,000 in costs; a fairly modest sum because, the Judge explained, he did not wish to discourage intervention in other cases by expert parties, and also because, as an organisation, the ACP had limited means.

Simon Bethel, one of the Partners here at Cambridge Family Law Practice comments:

“This case shows that whilst costs orders in children proceedings are rare, they can be – and are – made. It also sends a strong, but arguably measured signal, to organisations (who are often registered charities), as well as litigants who may be considering an application to intervene in court proceedings, that there are consequences of making the wrong decision.”

Read the full judgment here.