A recent case regarding living arrangements for a child has highlighted the importance of the court’s power to direct parents to engage in non-court dispute resolution (NCDR), when the court ordered the mother to pay part of the father’s court fees.
In this case, the child had been living with the mother and the father made an application to court to share the son’s time equally between them both and magistrates made an order for that. The mother believed that this was not in the best interests of the child, and it would disrupt her quality time with them as she had weekend work commitments. She appealed the order.
The mother’s appeal was dismissed in May 2024 with the judge saying that her arguments did not have merit and meant that the child remained uncertain about their living arrangements. The judge reserved the issue of costs, which had reached £20,000, and directed the parties to use NCDR to agree:
- amendments needed to the existing magistrates order to better serve the child’s welfare
- civilised and sustainable methods of communication for the future
- how to resolve future co-parenting issues
- how to deal with the appeal costs
The case was relisted for a date at which the judge would give further directions or make a costs order after reviewing a 500-word statement from each party detailing their NCDR progress. The hearing was adjourned once and the mother tried, unsuccessfully, to adjourn it a second time until after she had taken part in mediation.
At the final hearing, the judge found that the father had done all he could to engage in mediation, but despite this, the mother had not engaged in it proactively, cancelling her appointment with one mediator on the morning of the proposed session – because the practice did not have a legal aid franchise, delaying making a further appointment with another mediator because of work commitments and refusing to agree to block booking sessions so that the mediation didn’t drift.
The judge said that the court had done everything it could to try to get the parents to engage in mediation, and that such engagement would inform his decision on whether to make a costs order. He found that whilst the mother had not been “actively opposed to mediation or deliberately frustrated it”, she had not engaged in it “with sufficient enthusiasm” to “absolve herself of responsibility for the process not working”.
He ordered the mother to pay 50% of the father’s costs as well as her own.
Juliette Dalrymple says “This case emphasises that courts are obliged to consider mediation or other forms of NCDR in private law child cases and that they can further consider each persons’ participation when deciding whether to make a costs order.
“This is not a typical case, as the costs for both parties were very high, but it does show that judges will use costs sanctions to encourage participation in NCDR.
“Interestingly the mother in this case qualified for legal aid, which would have meant the MIAMS for both and all of the mediation for the mother would be funded by the Legal Aid Agency. Family Matters is committed to offering legal aided mediation for all clients who are entitled to it.”
Juliette added: “Cost are not the only issue; clearly the child will have suffered during the process. Family mediation is a more cost-effective and child-focussed way to help sort out differences about children and to find solutions that will work.”
