In the recent case of Pringle v Nervo [2026] EWCA Civ 266, the Court of Appeal allowed the father’s appeal and overturned a substantial costs order made in private law Children Act 1989 proceedings, finding that the first instance judge had failed to take both the mother’s and father’s conduct into account. Sophie Chapman, partner, trainee solicitor Beth Brayshaw, and paralegal Ellen Watson examine the decision, which confirms that costs orders in children cases are exceptional, and only appropriate where a party’s conduct is reprehensible or unreasonable in relation to the proceedings.

Background

The parties were in a relationship from late 2016 to early 2019. During the mother’s pregnancy with their child, she discovered that the father was also in a long-term relationship with another woman in his home country, New Zealand, with whom he had one daughter and was expecting a second child. The parties’ relationship consequently came to an end, and their child was born in 2019.

The father continues to live in New Zealand. He comes from an extremely wealthy family; the mother is part of a successful DJ duo. There were disputes about privacy and publicity (the father wanted to protect his privacy, while the mother wanted to tell her fans about what had happened), and the parties spent almost three years corresponding through lawyers and attempting non-court dispute resolution. They began private therapeutic co-parenting work in 2021, but this was paused shortly afterwards when the mother repeatedly raised financial issues.

Following the failure of non-court dispute resolution, the father applied in September 2022 for a child arrangements order (to determine where the child would live and spend time, and to define the parents’ contact arrangements ) and parental responsibility. The mother filed allegations of harm and domestic abuse, focusing on the father’s deception. In the father’s formal response to the mother’s allegations, he accepted that he had not been honest and expressed remorse and a desire for a relationship with their child. The First Hearing Dispute Resolution Appointment (the initial court hearing in private family law cases) was vacated on the basis that an independent social worker would be appointed to facilitate contact between the father and the child. Contact commenced following a further Dispute Resolution Appointment in April 2023, at which the next steps of the court process were agreed.

In September 2023, the mother changed her legal team, and with it, her approach to the litigation. She sought a fact-finding hearing, alleging reproductive coercion and controlling behaviour against the father (including “gaslighting, love bombing, blame shifting, future faking and financial abuse through excessive litigation”), as well as entrapment and rape on the basis that the father had not been truthful. The mother’s application for a fact-finding hearing was refused in February 2024. The father filed a schedule of admissions, accepting that he had deceived the mother about their relationship, and it was recorded that he suffered from depression.

In mid-2024, the judge recommended that the father’s contact with the child be extended, in line with recommendations from the independent social worker. However, the father made no contact with the child from April 2024. He withdrew his application for a child arrangements order in August 2024, shortly before the welfare hearing, which took place in September 2024. The father did not attend this hearing (supported by a doctor’s note, which cited mental health issues). It was agreed between the parties that, whatever the outcome of the hearing, the father would have ongoing face-to-face contact with the child. The court, therefore, dealt with the remaining issues, some of which were addressed during the hearing and others which were held over to a further hearing in February 2025. The issues included:

1. A declaration of parentage by the mother, which was later agreed to by the father
2. A transparency order made by the father, which was initially adjourned by the judge for lack of time but was later granted in February 2025
3. An order sought by the mother against the father under section 91(14) of the Children Act 1989, which would prevent him, for a specified period, from making court applications regarding their child without prior court permission. This was initially contested by the father, but was later agreed at the hearing in February 2025. The judge determined the duration of such an order to be four years
4. The father’s withdrawal of his application for a child arrangements order, which the mother opposed. The judge allowed the father to withdraw the application in a judgment given on 16 September 2025.

The costs order and the father’s appeal

In practice, as a general principle, costs against a party in children proceedings are rarely made. However, the court retains a discretion, under the Civil Procedure Rules and case law, to do so in exceptional circumstances. These include cases where a party’s conduct in relation to the proceedings has been reprehensible or unreasonable.

On 8 May 2025, when considering the costs of the legal proceedings, the first-instance judge concluded that the father’s conduct both before and after the commencement of proceedings had been unreasonable and justified a costs order. He ordered the father to pay 75% of the mother’s costs.

The judge relied on four matters (all relating exclusively to the father):

1. The father’s motivation for pursuing the litigation (including preserving his own privacy and reputation)
2. The father’s late application to withdraw proceedings and his reasons for doing so
3. The father’s failure to attend the welfare hearings in September 2024 and February 2025
4. The father’s late agreement to a section 91(14) order and his late application to adduce additional evidence.

The father appealed the costs order on four grounds, including that the judge had:

1. Failed to consider the litigation as a whole
2. Given undue weight to selected correspondence over the three-year period when determining the father’s motivations
3. Failed to give sufficient weight to the mother’s litigation conduct
4. Incorrectly categorised the case as “exceptional” and the father’s behaviour as unreasonable and reprehensible.

Decision on appeal: costs order set aside

The Court of Appeal allowed the father’s appeal. The costs order was set aside and substituted by an order that there be no order for costs, save for the costs of preparing the mother’s declaration of parentage application.

The judge held that the first instance judge had fallen into error by:

1. Failing to consider the conduct of both parties (contrary to Civil Procedure Rules 44.2(4) and (5))
2. Concluding that the four grounds relied upon justified a finding of “unreasonable conduct” in relation to the father’s behaviour and subsequently the making of a costs order contrary to the general principle
3. Misapplying Civil Procedure Rule (CPR) 44.4(3) by treating factors that should have been considered in deciding whether to make a costs order as factors going only to mitigation under CPR 44.2(4) and (5).

Why the factors did not meet the threshold

Motivation

The court held that the first instance judge wrongly relied on limited correspondence, namely three letters in which the father mentioned “defamation”, “privacy” and the child’s “welfare” to decide that the father’s privacy was a motivator for his application for a child arrangements order. The Court of Appeal held that this was an improper use of limited correspondence (particularly as the judge had previously cautioned himself against drawing conclusions from partial correspondence).

Late application

The court accepted that the father had withdrawn his applications late, but emphasised that late withdrawals occur frequently in private law proceedings. If a costs order were made each time this happened, rather than in line with the stringent test for unreasonable conduct in Re T (Children) (Care Proceedings: Costs) [2012] UKSC 36, orders would be made routinely, which would undermine the principle in Re S (A Child) (Father’s Costs of Appeal) [2015] UKSC 20. that it is inappropriate as a general rule to make costs orders in children cases.

Failure to attend

The father had permission to attend remotely, was represented by leading and junior counsel who had been given instructions, and no court time was lost. The court held that this did not approach the sort of unreasonable conduct envisaged by the Supreme Court.

Other procedural points

The court considered the judge’s approach “swung too far” by treating relatively low‑level and commonplace procedural conduct as “unreasonable”. While the court did not seek to underplay the father’s earlier admitted behaviour towards the mother, it emphasised that costs orders should relate only to conduct in pre‑proceedings and proceedings, not earlier events.

Key takeaways

The decision is a reminder that, in Children Act proceedings, the starting point remains that there should be no order as to costs. A departure from that position will only be justified where a party’s conduct meets the high threshold of being reprehensible or unreasonable, and any costs order should relate only to the parties’ conduct in pre-proceedings and proceedings. In deciding whether to depart from the general rule, the court must consider the litigation conduct of both parties.