Within private law proceedings under the Children Act 1989 a district judge made adverse findings of fact against the father. Some years later the father’s appeal was allowed on the basis that there had been a serious procedural irregularity in the proceedings in the lower court and there was a serious risk that the decision was wrong. At the remitted fact-finding hearing the judge found that, contrary to the earlier findings, the father had not abused his daughter. The matter was then returned to the appeal judge to consider the issue of costs, on which the judge made an order that the mother pay half of the father’s costs of the appeal. Nearly a year later, the mother applied for that order to be rescinded, or substantially varied, on the basis that (i) she was financially unable to satisfy the costs order, (ii) the general cost of living had risen significantly and unexpectedly since the making of the order and (iii) the burden of the order was leaving her so anxious that it impacted on her life and, therefore, the care and welfare of the child. It being established that the correct jurisdictional basis for the application was the court’s power under to FPR r 4.1(6) to vary or revoke an order, the questions arose for consideration whether rule 4.1(6) permitted the mother to seek variation or revocation of a final order and whether the court had the power, in the alternative, to grant an order that payment of the sum “was not to be enforced without leave of the court”, as was frequently seen in publicly-funded cases, even though neither party had been in receipt of legal aid.
On the mother’s application—
Held, application refused. (1) Although there was a tension between the established authorities, the proper conclusion was that FPR r 4.1(6) did give the court the power to vary or revoke a final order. Accordingly, it provided a route to a potential remedy for the mother. While the circumstances in which the power could be used in relation to a final order were likely to be limited, a good example of such a case was where the order under challenge was a discrete, self-contained order such as a costs order. In the present case, however, the mother was unable to demonstrate a sufficient change in circumstances to justify the exercise of the power since, inter alia, the judge who made it had been aware of the mother’s financial circumstances, the rise in the cost of living was not a material change in circumstances, affecting as it did both parties, both of whom were now relatively worse off, and the increased stress on the mother was not of itself having an adverse effect on the child (paras 35, 48, 49).
(2) Where FPR r 4.1(4)(a) allowed the court to make any order “subject to conditions” there was no reason why an order for payment of a sum “not to be enforced without leave” could not be made in cases where the unsuccessful party was not legally aided but was nonetheless impecunious. However, the circumstances in which such an order could be made in family proceedings was again likely to be rare. Here, where there was no basis for a variation or revocation of the costs order it would not then be principled to “vary” it by suspending its enforcement (paras 43–44, 50).
Summary of principles applying to applications made under FPR r 4.1(6) (para 39).
Laura Briggs KC and Ian Black (acting pro bono and instructed directly) for the father.
Andrew Fox (acting pro bono) (instructed by Jones Myers Ltd, Leeds) for the mother.