MG + JG v JF [2015] EWHC 564 (fam) (10 March 2015)

Posted on Monday, April 27th, 2015

Claire RobsonThis was a Judgment given by Mr Justice Mostyn on an Application made under Schedule 1 of the Children Act by MG & JG for a costs allowance to be paid by JF.  This Application had been made within complex private law proceedings issued by JF in relation to JFG which had been transferred to the High Court and were still on-going.

The background to the proceedings was that JF had provided a sperm donation to MG & JG (a same sex couple) to allow them to have a child.  It was agreed between the parties that JF would be named on the birth certificate and that JG (the mother who did not carry the child) would be a ‘legal step-parent’ so that all three would have equal rights.  From 2007 to October 2012 JF enjoyed periodic Contact with the child.  From October 2012 the relationship between the mothers and the father broke down and serious Contact difficulties arose.  JF issued his Application for Contact on 04 December 2013 and subsequently issued a further Application for a Specific Issue Order in relation to JFG’s education and vaccinations.  During the course of the proceedings several hearings had been attended, a Psychologist and Educational Psychologist had been instructed and a detailed programme of supervised, facilitated Contact and a range of various other therapeutic interventions had been recommended.

MG & JG made their Application for a costs allowance to be paid by JF due to the substantial and increasing costs of the case.  Due to ‘LASPO’ coming into force on 01 April 2013, MG & JG were no longer eligible for Legal Aid and were therefore instructing Counsel under the Direct Access Scheme.  They had already increased the mortgage on their property by £20,000.00 to pay their costs.  Further fees to Counsel and also to the experts were also now due.  JFG was represented under Legal Aid and JF was privately paying as he was of reasonable means.

In his Judgment, Mr Justice Mostyn referred to numerous cases where the inability of parties to obtain Legal Aid or the Legal Aid Agency refusing to fund experts’ costs etc. were having an adverse effect on cases and potentially breaching the parties’ Human Rights.  These cases included Re B (a child) (private law fact finding – unrepresented father) [2014] EWHC 700 (Fam) (27 January 2014, Judge Wildblood QC), CD v ED [2014] EWFC B153 (14 November 2014, Judge Hudson) and JG v The Lord Chancellor + Ors [2014] EWCA Civ 656 (21 May 2014).

Mr Justice Mostyn stated that it was impossible for MG & JG to represent themselves given the complex factual and legal issues of the case.  After careful consideration of the parties’ finances, the Judgment was given that JF should pay 80% of each of the claims of MG & JG and in additional JF should pay 80% of all future professional costs in respect of therapeutic work.  The future costs of the expert evidence were Ordered to be a reasonable charge under JFG’s Legal Aid Certificate.  Mr Justice Mostyn acknowledged that the Judgment against JF could be seen as ‘grossly unfair’ but stated that this was the position the government, through ‘LAPSO’, had left him.

The full judgment can be read here

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