Pro bono costs orders in children proceedings

While rule 28.1 of the FPR 2010 enables a court to make “such order as to costs as it thinks just”, the court seemingly follows the underlying principle in children proceedings that each party generally bears their own costs. The purpose of this principle is to prevent parents from using litigation as a financial weapon against the other. However, whilst costs orders in these types of proceedings usually remain an exception, the recent decision of the High Court in Mahmoud v Glanville and Another [2025] EWHC 1064 (Fam) and (No 2) (Pro Bono Costs Order) [2025] EWHC 2395 (Fam) demonstrates that this is not an absolute presumption. In this case, where Moore Barlow represented the father on a pro bono basis, Mr Justice MacDonald made a substantial costs order against the mother in response to her persistent and unreasonable litigation conduct, and it serves as a striking warning against litigation abuse, reiterating the important professional obligations on family lawyers to promote amicable solutions and guide our clients to present reasonable positions, as set out in the FPR and embodied in the Resolution Code of Practice.

Background

These proceedings concerned a young boy, Adam, whose welfare had become the subject of long and complex litigation between his parents, spanning over the majority of his lifetime. Mr Justice MacDonald made two significant judgments: one in relation to Adam’s child arrangements and long-term care; and the other involving a substantial costs order against the mother, including an unusual and landmark pro bono costs order.

Serious safeguarding concerns were raised as a result of the mother’s conduct and repeated breaches of court orders, including multiple international and domestic abductions of Adam from his father’s care. In June 2024, the mother hired two male associates to forcibly remove Adam from his father’s care outside of school and then concealed him for a period of eight months. This resulted in extensive litigation, police involvement and press coverage in an effort to locate Adam. Fortunately, Adam was found by the police in February 2025 and was returned to his father’s care.

During previous hearings in this case, compelling expert evidence from a clinical psychiatrist, as well as Adam’s Guardian, found that he had suffered emotional harm as a result of his mother’s actions, and both felt that there was a high risk of a further abduction. Adam was therefore to remain in the sole care of his father. A section 91(14) barring order was made against the mother to prevent her from making any further application to the court for a child arrangements order (CAO) without prior permission, and a non-molestation order was also made against the mother.

The applications and issues before MacDonald J in this instance included:

• an application by the mother for permission to apply for a child arrangements order
• an application by the mother for the discharge of the non-molestation order and an application by the father for the extension of the same
• an application by the father for the restriction of the mother’s parental responsibility (PR)
• an application by the father for indirect contact between Adam and his mother
• an application by the mother for the return of her passports, which had previously been confiscated

A review of the law

Section 91(14) of the Children Act 1989 prevents a person from making further applications to the court without the court’s prior permission. The legal test that MacDonald J had to consider in relation to the mother’s application for permission to apply for a CAO was whether she had demonstrated a need for renewed judicial intervention or an arguable case. This test was set out in Re S (Permission to seek relief) [2006] EWCA Civ 1190.

In relation to the restriction of a parent’s PR, this can be achieved through a combination of prohibited steps and specific issue orders. Although these types of orders in respect of PR can be generally hard to obtain, it was confirmed by the court in Re T-D [2024] EWCA Civ 793 that they can be made where the conduct of the parent poses a risk to the child’s welfare.

Section 194 of the Legal Services Act 2007 permits the making of pro bono costs orders, with the award payable to the Access to Justice Foundation. It was stated in Manolete Partners v White [2024] EWCA Civ 1558 that this type of costs order serves the dual purpose of making litigation fair and also funding future access to justice for those in need.

Outcome

The mother’s application for permission to apply for a child arrangements order was dismissed on the grounds that she had shown no change or insight into her conduct that resulted in the initial section 91(14) barring order. She repeatedly denied any wrongdoing; continuously made false allegations against the father, his legal representatives, and the judiciary; and her application was deemed as being entirely without merit. The barring order and non-molestation order were both extended until July 2029.

The mother’s PR was also severely restricted by MacDonald J via numerous prohibited steps orders, which meant that she would be prevented from accessing information about Adam’s whereabouts, education and health, and was unable to remove Adam from his father’s care. The father was therefore permitted to make any decisions about Adam’s welfare without the need to consult the mother or obtain her consent.

Mr Justice MacDonald ordered that the mother’s passports be returned to her on the basis that liberty-restricting orders such as this must be proportionate.

The father appreciated that Adam should have some contact with his mother but wanted this to be via indirect means; MacDonald J praised the father for his position and agreed. He ordered that indirect contact should be facilitated via an online communication platform and that the progression of this was to be entirely at the father’s discretion due to the ongoing risk to Adam’s safety. The judge emphasised that any development of contact must be on the basis that the mother has demonstrated a genuine change.

Mr Justice MacDonald later handed down his costs judgment. He found that the mother’s conduct throughout the litigation had been “wholly unreasonable and reprehensible” and was satisfied that this was a “paradigm case for a costs order against a parent who has acted both unreasonably or reprehensibly” [27]. He went on to say that the effect of the mother’s conduct was to “delay, obfuscate and frustrate the proceedings and to increase markedly the father’s legal costs as a direct result”.

The costs order made against the mother consisted of:

• £95,000 in legal costs to the father
• £20,000 in pro bono costs to the Access to Justice Foundation.

Why is this case important?

The judgments provide important examples of the court’s growing intolerance of unreasonable and reprehensible litigation conduct and its dedication to safeguarding children from harm. False allegations, tactical delays and repeated applications will be met with judicial consequences. It is not about punishing parents but about safeguarding children and preserving the family justice system. This growing intolerance has been demonstrated in numerous recent decisions, such as Re O (Appeal: Costs) [2024] 2 FLR 104 (where Mrs Justice Henke re-affirmed that litigants in person are not immune from costs orders) and Re E (Children: Costs) [2025] EWCA Civ 183.

Legal professionals play a pivotal role in preventing litigation abuse and we can do so by encouraging non-court dispute resolution (where possible) as well as avoiding confrontational correspondence. The case highlights the duty on legal professionals to advise clients that litigation abuse is not a good “strategy”, and may actually be a liability. We must consider our obligations under the SRA Code of Conduct and strive to follow Resolution’s main ethos and Code of Practice in this respect.

The pro bono costs order in this case is unusual and it reflects the judiciary’s recognition of the value of pro bono work and the importance of funding such representation for those who need it. It further reinforces the principle that abusive litigation conduct cannot be used to exploit legal support, even if this is being provided to the other party on a pro bono basis.

Conclusion

Mr Justice MacDonald’s judgments in Mahmoud v Glanville are more than just a cautionary tale; they are a stark reminder that the High Court will impose significant financial sanctions upon individuals where litigation is used as a weapon for abuse, even within children proceedings. For family lawyers, the message is clear – we must advocate responsibly, prioritise the child’s welfare, encourage parents to remain reasonable and amicable throughout where possible, and in doing so, adhere to Resolution’s Code of Practice. This is not only ethically sound to help achieve better outcomes for children and uphold the integrity of the family justice system, but it is essential to protect our clients from extreme financial consequences.

Lily is a senior paralegal in the family team at Moore Barlow.

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