J (Children)

Judgment

Lord Justice Wilson:

This appeal raises a question about the proper approach of the court to an application for costs by one parent against the other at the end of a bespoke fact-finding hearing within contact proceedings, at which potentially significant allegations are made by one parent against the other, are denied by the other but are found proved.

A mother appeals against an order made by Her Honour Judge Knowles sitting as if in the Uxbridge County Court, on 13 February 2009. The circuit judge’s order was to dismiss the mother’s appeal against an order made by District Judge Wicks on 19 March 2008 and, indeed, to order that the mother pay the father’s costs of the appeal. On 18 and 19 March the district judge conducted a fact-finding hearing into allegations by the mother, within an application for contact made by the father, that during the marriage he had perpetrated acts of violence towards her, including in the presence of one or other of the two children of the marriage, and indeed had to a limited extent been violent towards the older child. At the end of that hearing the district judge gave a judgment in which, to a significant extent but not entirely, he found proved the mother’s allegations. When, however, the mother sought an order for costs of the fact-finding enquiry against the father, he refused the application and made no order as to costs. It was against his refusal to make an order as to costs that the mother unsuccessfully appealed to the circuit judge.

The mother is now aged 35 and the father is now aged 38. He serves in the British Army. They were married in May 2004: it was the mother’s first marriage and the father’s third marriage. By that time the older child had been born: he is a boy, R, who was born in August 2003 and is thus now aged six years and two months. In 2005 the father began a tour of duty in Germany and the family moved there. It was there that the younger child was born: she is a girl, E, who was born in May 2005 and is thus now aged four years and five months. The marriage came to an end in February 2007, when, taking the children with her, the mother left the parties’ married quarters in Germany and returned to England. A few months later the father was transferred back to England. The parents now live in close proximity in West London.

Following the father’s return to England the mother refused to allow the father to have other than supervised contact with the children at a contact centre. Thro