J (Children)  EWCA Civ 1335
Summary by Rachel Cooper
The Court of Appeal considered appeals against costs orders made in the context of a high-profile and notorious child abduction case. The appeals were brought by a mother, Ms Ganna Tigipko, and her father is Mr Sergiy Tigipko who served as Ukraine’s vice prime minister from 2010 to 2012. Ms Tigipko remains in breach of a child arrangements order made by consent since 16 August 2018 by not having returned the children to the UK or made them available to spend time with their father since 13 July 2018. Mr Sergiy Tigipko, the children’s grandfather, was found to have aided and abetted the mother in breaching the court’s order.
Upholding all orders for costs against the appellants the Court of Appeal stated:
“The costs were incurred in an attempt to recover a situation created by the flagrant flouting of a court order. The orders were not intended to penalize but to compensate. It was an obvious case for departure from the normal rule. That rule is intended to promote respectful cooperation between parents, something that the appellants have egregiously dishonoured.”
The background is that in 2017 Ms Tigipko applied to relocate with the parties’ two young daughters to the Ukraine. Her application was refused by Mr Justice Mostyn on 27 April 2018. Ms Togipko sought to appeal this decision and her application was application refused by the Court of Appeal on 8 May 2018 ( EWCA Civ 1372). On the day of the appeal hearing Mr Tigipko tried to convince the father to agree to Ms Tigipko living in Ukraine with the children. When the father refused to agree, Mr Tigipko threatened him saying it was “not over”.
The parties reached an agreement on the child arrangements through mediation. The agreement was incorporated into a consent order made by Mr Justice Newton on 13 July 2018. The order provided that children would live in London with their mother and would spend regular time with their father. The order made provision for both parties to be able to take the children on holiday abroad. The consent order also provided that before taking the children on holiday in July 2018 Ms Tigipko would pay the sum of £1 million into her solicitors’ client account by way of security for the father’s legal costs should she fail to return the children to the father after the holiday (‘the security fund’).
The mother went to Ukraine with the children on 13 July 2018. The father has not seen his children since. The security fund was transferred to the father’s solicitors. At the time of this appeal hearing the court were told that the security fund had been used up.
The father was awarded his costs by Mostyn J in respect of (a) his applications to enforce the children’s return from Ukraine and for permission for the mother, her husband and the grandfather to be publicly named in connection with the case ( EWHC 105 (Fam); and (b) the mother and grandfather’s applications for redactions to previous orders.
In his lead judgment Lord Justice Peter Jackson summed up the background to these costs orders as “the grossest breach of trust perpetrated by individuals who appear to consider obedience to the law to be optional and disobedience affordable.”
The appellants argued that the security fund provision in the consent order implied a contract whose effect was to prevent the family court from making any order for costs against the appellants. The Court of Appeal described this argument as “sterile”. Upholding the decision below, it held that the terms of the consent order did not have the effect of ousting the court’s jurisdiction on costs under the rules. An order that provides for a security fund or a fighting fund for one party did not disable or suspend the normal powers of the court to make at any time make such order for costs as it thinks just (FPR 2010, r. 28(1)). The Court considered that even had the parties sought through the consent order to explicitly provide that the security fund was a substitute for the normal powers of the court, it questionable whether the court should have approved an agreement to fetter its powers in this way.
The Court of Appeal clarified that the court was not assisted in determining cost applications in cases involving children to “read-across” to Children Act proceedings the rule in financial remedy proceedings that the “no order” principle does not apply to enforcement proceedings. The starting point was “no order”. An order for costs is only payable if the conduct of a party in the litigation has been demonstrated to be unreasonable. In this case, misconduct was integral to the litigation and the costs orders were therefore unexceptional.
Read the judgment at: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1335.html
This post was written for Coram’s international children law blog. Our International Children Law team has extensive experience in public and private child disputes. We act as family law barristers on child and finance matters, including cases dealing with child abduction, surrogacy, division of finances upon divorce, and cases of contested jurisdiction.