Understanding Costs in Children’s Proceedings – A Recent Judgment

Earlier this month, we published an article on Hague and non-Hague principles applicable to the Court’s determining whether to return a child to his home country.

On 9 May 2025, the Hong Kong court awarded costs to the Father, diverging from the usual practice of no order as to costs for children proceedings. This article examines the legal principles applied and the key factors driving this exceptional ruling, offering insights for legal practitioners and parties involved in similar cases.

Legal Principles Governing Costs in Children’s Proceedings

Children’s proceedings, such as those concerning custody or Hague Convention matters, adopt a distinct approach to costs. Typically, the court follows a practice of “no order as to costs,” where each party covers their own legal expenses. This stems from the inquisitorial nature of these cases, which prioritise the child’s welfare over adversarial outcomes. The policy ensures that parents or guardians with a genuine interest in the welfare of the child are not deterred from participating or advocating for the child in fear of potential cost penalties.

However, this general principle is not a rigid rule. The court retains discretion under section 52A(1) of the High Court Ordinance and Order 62, rule 5 of the Rules of the High Court to award costs in exceptional cases. This discretion hinges on factors like the parties’ conduct (both conduct before and during the proceedings)[1]. When a party’s behaviour is deemed unreasonable or reprehensible, the court may depart from the norm and impose a costs order.

The Exceptional Case: Factors Leading to the Costs Award

In this case, the court found the mother’s actions sufficiently egregious to warrant a costs award in the father’s favour. The decisive factors included:

1. Unilateral Removal of the Child: On 25 November 2024, the mother took the child from Shanghai to Hong Kong without notifying the father, violating an interim access agreement from Shanghai proceedings she had initiated. Further, the mother abducted the child to Hong Kong after she lost at first instance and during her appeal of a ruling favouring the father. This highlighted her disregard for legal obligations. 

2. Non-Compliance with Court Directions: The mother disregarded the Court’s direction to explain, via affidavit, her application for a replacement HKSAR passport for the child. The non-compliance with the court’s direction was unreasonable.

3. Contradictory and Unsupported Factual Case: The mother’s claims about the child’s intended residence were internally contradictory and directly contradicted by evidence produced during the proceedings. Her persistence with this flawed narrative till the very end was deemed unreasonable.

4. Inconsistent Stances in Legal Proceedings: She presented diametrically opposed and contradictory evidence to the Shanghai and the Hong Kong courts. She was either lying the Shanghai Court or to the Hong Kong Court. This was held reprehensible conduct.

The court should only make a cost order which is no more than necessary to reflect the exceptional circumstance. The pervasive nature of the mother’s conduct led the court to order her to bear all of the father’s costs in the Wardship and Hague proceedings, assessed on a party and party basis if not agreed.

Conclusion

This judgment illustrates that while costs orders are still unusual in most children’s proceedings, they serve as a critical tool to address egregious conduct. Parties must act with integrity and respect legal processes, as deviations can lead to significant financial consequences.

Tanner De Witt acted for the Father in these proceedings. Judgment for return of child to Shanghai is published here and for cost is published here.

Adrian Au and Joanne Brown

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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. This article was last reviewed on 03 June 2025.

[1] Court of Appeal in TPL v WYY [2015] HKFLR 75