Pro bono costs orders in children proceedings
The High Court has confirmed the availability of pro bono costs orders in children proceedings, underlining that the legislative purposes of s194 of the Legal Services Act, which include deterring unreasonable behaviour by a party to the proceedings, apply equally in these cases.
The conventional rule on costs is that the unsuccessful party will pay the costs of the successful party. This is intended to deter unreasonable conduct in litigation and to encourage settlement of disputes.
Pro bono costs orders
Yet where a privately funded party A is litigating against B, who is represented pro bono, the conventional costs rule confers a tactical advantage on A. A is not exposed to the usual risks of an adverse costs order (B having incurred no costs against which an adverse costs order could bite against A). The prospect of a pro bono costs order under s194 of the Legal Services Act 2007 removes that advantage, by creating a costs risk for A as well as B.
The difference with pro bono costs orders is that payment is made by the unsuccessful party to the Access to Justice Foundation, rather than to the successful party (who did not in fact incur the notional costs in question, as they were represented pro bono).
The conventional rule is disapplied in children proceedings
In children proceedings the conventional costs rules do not apply. This is because the interests of a child are at stake and it is undesirable to award costs where this will (further) exacerbate feelings between two parents, or more generally between relations, to the ultimate detriment of the child. Nonetheless, an exception can be made where a party has behaved unreasonably or reprehensibly in the litigation.
Pro bono costs order in children proceedings: Mahmoud v Glanville
Given that the general rule is against any costs order, the imbalance which pro bono costs orders are intended to address does not usually arise in children proceedings.
However, Mahmoud v Glanville [2025] EWHC 2395 (Fam) was a “paradigm case” for an exceptional order for conventional costs, based on unreasonable and reprehensible conduct by the mother, which related to her conduct of the litigation and not to the child’s welfare.
Mr Justice Macdonald confirmed that pro bono costs orders are also available in proceedings concerning children where the court considers it to be justified on the grounds of unreasonable behaviour. Otherwise, “a party to proceedings concerning children who is litigating against a party represented pro bono could act entirely unreasonably or reprehensibly without fear of costs consequences, on the basis that they are not at risk of an adverse costs order in favour of the party represented pro bono”. This would be contrary to the purpose of s194 of the 2007 Act.
In making its pro bono costs order, the Court focussed on the primary legislative purpose of s194, which aligns with the rationale for exceptional conventional costs awards in children proceedings – to deter unreasonable conduct in litigation.
The case is a helpful reminder of this principle for all litigants – whether represented by paid or pro bono representation. It is a useful reminder for family practitioners working on a pro bono basis that – where the conduct of the counterparty appears to meet the high threshold of being “reprehensible and unreasonable” – the possibility of a pro bono costs order can be a potential deterrent, and there may be a basis for applying for a pro bono costs order.
