Supreme Court clarifies discretionary costs awards against CFA in child care proceedings requires exceptional justification.

THE SUPREME COURT

[Appeal No. 422/14]

Murray J.

O’Donnell J.

McKechnie J.

MacMenamin J.

Laffoy J.

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947 (NO. 20 OF 1947); SECTIONS 13, 17 AND 19 OF THE

CHILDCARE ACT, 1991

BETWEEN:

CHILD & FAMILY AGENCY (FORMERLY HEALTH SERVICE EXECUTIVE)

APPELLANT

O.A.

RESPONDENT

Judgment of Mr. Justice John MacMenamin dated the 23rd day of June, 2015

Introduction

1. In what circumstances may a District Court judge award costs against the Child and Family Agency (CFA) to a parent’s privately

retained lawyer, consequent on hearing child care proceedings? It is long established that costs are a discretionary matter. However,

as this judgment seeks to explain, a judge is not at large in considering a costs application, may not apply a policy on costs awards,

and must exercise his or her discretion in each case within jurisdictional criteria established in law.

The Procedural Background

2. This is a case stated pursuant to s.16 of the Courts of Justice Act, 1947, which provides that a Circuit Court judge may state a

case to the Supreme Court on “any question of law” on a matter arising in the Circuit Court. While it might appear both counter-

intuitive and unusual that a question of discretion should be characterised as an issue of law, this is not always so, especially if the

manner in which the discretion was exercised crossed the boundaries of jurisdiction. As this judgment explains, this is not the only

extraordinary feature of this case. The question of the District Court Judge’s approach to the costs award in this case has now come,

either by way of case stated, or by appeal, before courts at every level in the State, with the exception of the new Court of Appeal.

As described later, when the District Judge intimated an intention to award costs, the HSE (the appellant’s statutory predecessor)

applied for a case stated to the High Court, as to whether the judge held any jurisdiction to award costs in cases of this type. The

High Court determined against the HSE. The decision then came on appeal to this Court, whereupon the then appellant, the HSE,

withdrew the appeal. The application was meantime heard by the District Judge who awarded costs, which order was itself appealed.

The Circuit Court Judge on the appeal, this time on the application of the respondent herein, agreed to state yet a further case. This

is the present case stated to this Court pursuant to the 1947 Act, now focused on the manner in which the District judge exercised

his discretion in awarding costs against the Agency. In considering the history of this case, one is left with the impression that the

appellant has explored a variety of procedural avenues seeking to obtain a legal determination satisfactory to it. As the question

ultimately goes to jurisdiction, it is perhaps surprising that the appellant did not go by way of judicial review. In truth, whatever about

the hitherto unsatisfactory procedural means, the end- object here is significant. Sixty similar determinations are either pending or

have been made. The question which arises is not confined to this one child law matter, and the issue comes before this court as

effectively a test case to determine the outcome in this range of similar applications. Issues of principle arise. Any fixed judicial policy

on costs awards in child cases would have broad consequences to children, to the other parties involved, and, ultimately, to the

public.

Constitutional Rights

3. Prior to considering the legal question, it is necessary to emphasise that in child care cases a number of constitutional rights are at

stake. Among these are, first, a child’s right to have decisions made with his or her welfare as a paramount consideration; second,

the rights both of parents, (designated in the Constitution as the natural custodians of children), and of children themselves, to be

properly represented in proceedings where the outcome can be truly life-changing for all involved. A further value, which forms an

important part of the background, concerns the right of parents or guardians, in such proceedings, to choose their own lawyer, should

they so wish. The practical protection of these rights necessitates access to an appropriate level of legal representation. But, as a

corollary of these rights, there are constitutional and legal duties, including the State’s statutory duty to protect and vindicate the

welfare of children where questions arise in relation to their welfare and care. For these and other reasons, explained later, there

must be some definitive guidance on the point, and it is necessary therefore to reformulate the questions raised by the Circuit Court

judge so as to allow for a broader analysis and conclusion than one confined to this one single case. The following questions were

originally formulated by His Honour Judge Martin Nolan sitting in the Dublin Circuit Court:

“1. Is it a permissible or proper exercise of my discretion as a judge of the Circuit Court, on appeal from the District

Court, to allow the appellant’s appeal against an order for costs made against it, having considered all relevant matters,

and having found as a fact that the appellant had not misconducted itself or acted in an unreasonable, arbitrary or

capricious manner in proceedings brought pursuant to the provisions of part (iv) of the Child Care Act, 1991?

2. On an appeal by the Child and Family Agency from an award of costs by the District Court to the respondent, is it

permissible for me to take into account the reasoning adopted in the United Kingdom Supreme Court decision in Re T

(Children) (Care Proceedings; Costs) S.C. [2012] 1 WLR in making my decision that costs should not be awarded against

the appellant?”

4. As the exercise of this judicial discretion must be seen within its appropriate context, I examine next the statutory duties involved.

These form the framework within which one may determine how and when costs awards should be made in this category of case. It is

necessary to first examine the statutory provisions.

The Status of the CFA/Tusla

5. A range of tasks devolved upon the Child and Family Agency, (Tusla), pursuant to Part 11 of the Child and Family Agency Act,

2013 (No. 40 2013). This statutory body came into being on the 1st January, 2014, and, inter alia, assumed functions previously

vested in the Health Service Executive (HSE) concerning child welfare, which body had, in turn, inherited the functions of Health

Boards in child law. No issue arises as to the respective roles of the HSE and CFA who may be regarded as ‘the appellant’ for all

purposes.

6. Section 3 of the Child Care Act, 1991 identifies the main policy objective, now to be pursued by the appellant, as being the

promotion of the welfare of children. With this end in mind, the Agency is now to take such steps as are required to identify children

not receiving adequate care and protection, and to co-ordinate information from all relevant sources on the subject. The Agency is to

regard the welfare of the child as its first and paramount consideration. It is to give due consideration to the wishes of the child,

subject to the child’s age and understanding. In furtherance of these aims, and pursuant to s.16 of the 1991 Act, there is a statutory

duty to institute proceedings when it appears that a child requires care and protection, unlikely to be provided otherwise. This

imposes a precautionary principle of protection.

Policy Considerations

7. Because the appellant is a statutory agency, it is necessary that it applies a high degree of judgment in the performance of its

functions, while adhering to the precautionary principle of child protection. This will involve an assessment, ultimately carried out

under the supervision of the courts, of the circumstances in which child care proceedings should be initiated, maintained, and brought

to conclusion. The nature of this work differs somewhat from other organs of the State. The office of the Director of Public

Prosecutions operates within a series of limited timeframes, and makes decisions whether or not to prosecute offences on material

submitted to it by An Garda Siochana. By contrast, the nature of court orders, such as a full care order placing a child in care, is

more long term, imposing continuing responsibility on the Agency, subject to the principle of proportionality both as to duration and

conditions, and may sometimes govern the lives of children until they reach the age of majority. During this period of care, the

Agency incurs quasi-parental rights and duties with regard to children in their care. Because the Agency’s duty and function is the

promotion and maintenance of child care and welfare, there must be a recognition that, when child care proceedings come to court, a

high degree of parental input is necessary in the consideration of welfare questions. Parents are entitled to be legally represented in

their own right, not only by virtue of their constitutional status, but also because of their close and intimate connection to all child-

welfare questions.

Constraints

8. The decision to initiate child care proceedings will not always be made in a perfect world, where all necessary information is to

hand. An agency, such as the appellant, may, on occasion, be required to act in circumstances where it has at its disposal only a

limited degree of information, and is restricted to only limited enquiry or investigation. Such circumstances, as they then appear to

the Agency, may nonetheless require the initiation of proceedings, albeit where, on further enquiry, it may be found further action or

court orders are not warranted. A court may conclude that orders with less effect than a full care order are warranted. On occasion,

the available information, albeit limited, is indicative of serious neglect or abuse, and full care orders may have to be made. However,

with these very wide powers, comes the responsibility to verify facts, in so far as possible, and to ensure that, in this highly sensitive

and profoundly human area, which involves an incursion into the relationship between parents and children, un-thought out,

precipitous, and drastic interventions do not cause problems, rather than curing them.

Categories of Applications to the District Court in Child Care Matters

9. By virtue of s.13 (1) of the Child Care Act, 1991, if, following an application by the Agency, a judge of the District Court is of

opinion that there is reasonable cause to believe that there is an immediate and serious risk to the health or welfare of a child which

necessitates that child being placed in care, the judge may make an emergency care order. Such order may have duration of 8 days

or less. Applications may be made ex parte, and, where necessary, on occasion, otherwise than at a public sitting of the District

Court. By virtue of s.16 of the Act, where it appears to the Agency that a child requires care or protection which he or she is unlikely

to receive unless a court makes a care or supervision order, it is the duty of the Agency to make application for such orders as it

thinks fit. An interim care order, made pursuant to s.17 of the Act, allows for a child to be placed or maintained in the care of the

Agency; again, in the first instance, for a period not exceeding 8 days, or, with the consent of a person having custody or care of

the child, for a period exceeding that time. Under s.18 of the Act, a Court may make a full care order, if satisfied that a child has

been, or is likely to be, assaulted, ill-treated, neglected or sexually abused; or that its development, or welfare, is being avoidably

impaired or neglected, and that the necessary care and protection is unavailable at home, When satisfied of these threshold

requirements, a court may make a full care order, committing the child to the care of the Agency for so long as he or she remains a

minor, or for such a shorter period as the court may determine. Needless to say, a court will ensure that the order made is

proportionate to the issue addressed.

10. Therefore, again, by way of contrast to the office of Director of Public Prosecutions, and other regulating or supervisory bodies

created by statute, the Agency’s duties do not end there. When a care order is in force, the Agency must exercise such degree of

responsibility for the child as if it were his or her parent. It must take all reasonable steps, (including provision of access for parents),

for the purpose of safeguarding or promoting the child’s health, development, or welfare. It is empowered to determine the type of

care to be provided for the child, give consent to any necessary medical or psychiatric examination, and, where necessary, give

consent to the issue of a passport (Section 18 of the 1991 Act).

11. Where a judge is satisfied that there are reasonable grounds for believing that certain of the threshold neglect, or welfare criteria

are met, but where a full care order is not warranted, he or she may consider that it is desirable that a child be visited periodically by

or on behalf of the Agency, and may make a supervision order under s.19 of the Act. Such order authorises social workers to visit the

child on such periodic occasions as may be considered necessary, in order to be satisfied that the child’s welfare is being protected,

and to give advice to parents or guardians as to the child’s welfare. Supervision orders may be made, for example, where a parent or

guardian is not fulfilling their responsibilities by leaving young children unsupervised. While the threshold of proof is obviously lower

than in the case of a full care order under s.18 of the 1991 Act, the fact that a supervision order is made has a high degree of

significance and can only arise when there is sufficient probative evidence of neglect, albeit in circumstances less grave than under

s.18 of the Act.

12. It is no exaggeration therefore, to describe the decisions which a District judge must make in these cases as having a far greater

personal and social significance to those individuals involved or affected, than judgments in other courts, which sometimes attract a

higher degree of public attention. For this reason, the recent reforms, to allow media access to courts engaging in this work, is to be

welcomed.

Legislative Policy on Costs

13. Despite the identification of such broad powers, the 1991 Act does not outline any general legislative policy on legal costs in child

care matters. The Act is silent on this topic, other than in the cases of the joinder of a child as a party to the case (s.25 of the Act

of 1991); and the appointment of a guardian ad litem for a child (s.26). In either instance, a court may make orders for the payment

of the legal costs for lawyers who are representing those parties joined. In exercising this jurisdiction, and while the order is a

discretionary one, a court must be satisfied that such joinder, and order for legal representation, is necessary, both in the interests of

the child and in the interests of justice. It is not unreasonable that these criteria should come into play in analysing the judge’s

discretion on costs awards for privately retained lawyers acting for parents. Other factors and principles are outlined later.

14. In the apparent absence of an explicit statutory policy or guidelines in the 1991 Act as to costs of parent’s private legal

representation, the Agency and its predecessor, have, in their other legal challenges to an award, fallen back on provisions in the Civil

Legal Aid Act, 1995. It was said this legislation outlined policy considerations which, it was suggested, courts should take into

account in assessing whether privately retained lawyers might be awarded costs. The Agency’s position has been, therefore, that a

District Court judge should bear in mind that legal aid will be available to the parents of children engaged in proceedings. In these

earlier proceedings, counsel relied on s.33 of the 1995 Act, which, (insofar as material), provides that costs are to be recoverable by,

or on behalf of a person in receipt of legal aid or advice; with the intent that such recipient is to enjoy the same rights and duties of

recovery of costs against another party as would normally apply to privately represented litigants. Counsel acting for the Agency

made the case that the existence of such a duty suggested that, in child law cases, a court, in assessing whether to award costs to

a party of moderate means who retains a private lawyer, should bear in mind that such person might have applied for, and received,

legal aid.

15. Prior to consideration of the facts, I think this Court may take judicial notice of a number of matters. First, hitherto, the District

Court has frequently made no award as to costs in child care proceedings, often in cases where the parents were legally aided. This

judgment concerns itself with the circumstances in which there has been a departure from that general approach. Second, we have

not been referred to any precedent for the Agency actually seeking an award of costs against parents, although such a situation is

theoretically possible. Third, many parents will, in fact, be represented by lawyers retained under the civil legal aid system. As a

consequence, courts may occasionally refrain from awarding costs on the practical basis that the funding ultimately emanates from

the same ultimate source (that is, the State itself), even though there is a duty on lawyers employed by the Legal Aid Board,

representing legally aided parties to make application in fulfilment of their duties under s 33 of the Civil Legal Aid Act, 1995.

A More Detailed Outline of Events

16. The conduct of a case, and its outcome, are two relevant factors in any costs award. It is now necessary to outline the factual

background in a little more detail therefore. OA, the respondent in these proceedings is the mother of four children, namely, A.A.,

aged at the time 11 years, K.A. and K.A, both aged 9 years, and SA aged 6 years. The Court has not been provided with any

information as to the children’s father, nor has he been a party to any of the proceedings.

17. In April, 2011, the HSE, as the agency then charged with child care functions, received a complaint, via a third party, that A.A.,

aged 11 years, had been the subject of physical abuse by her mother. The third party was the mother of a friend of A.A.’s. She

apparently went to the HSE offices with A.A. to assist her in lodging the complaint. When the HSE social workers contacted A.A.’s

mother, O.A., she denied any misconduct, and claimed the child had been manipulated by the third party. However, O.A. told the

social work professionals that if A.A. wanted to go and live with the third party, she could do so. She subsequently threw the child’s

clothes out of the house.

18. Against this unfortunate background, the HSE applied to the District Court for an emergency care order pursuant to s.13 of the

1991 Act, which order was granted, ex parte, on the 28th April, 2011. By the time of the return date, 5th May, 2011, the mother,

O.A., had retained Mr. Eamon Bennett, a solicitor in private practice, who appeared in Court on her behalf. A.A. was, at that point,

still maintaining her claims against her mother, and refusing to return home. Mr. Bennett later queried the motivation behind the third

party’s engagement with the HSE. There was a suggestion in correspondence, but no more, that the HSE had had some prior

knowledge of the third party in the context of concerns as to her psychological welfare. It is not said there was any want of care in

the HSE receiving or acting upon the complaint, however.

19. An application for an interim care order was adjourned on several occasions between the 11th May, 2011 and the 28th November,

2011. By then, the home situation had radically changed; the District Court was informed that A.A. had withdrawn her complaints,

against her mother, and had returned back home. Normally, and as a consequence of such a change, an application for a full care

order might foreseeably, lapse. The interim care order remained in force however. But on the same date, the HSE sought a supervision

order, pursuant to s.19 of the 1991 Act. Ms. A. was not in court. Her solicitor consented on her behalf, to a supervision order of 2

weeks duration. Mr. Bennett then also brought an application, pursuant to s.47 of the Child Care Act, 1991, for directions, seeking to

discharge the interim care order, and requesting the court to vacate the dates which had been assigned for hearing of the full s.18

long term care application. These orders were granted.

20. Later, on the 12th December, 2011, the HSE applied for a further supervision order, raising questions as to Ms A.’s co-operation.

Ms. A. contested this application through her solicitor. District Judge Toale nonetheless granted a supervision order, to remain in place

until the 5th March, 2012, when the supervision order expired, and the HSE confirmed it was not, at that stage, applying for any

further remedy.

21. But six weeks later, on the 25th April, 2012, the HSE brought a further application to the District Court, this time seeking a new

s.19 supervision order on the grounds that O.A.’s three younger children, K.A., K.A. and S.A., were being left at home without proper

adult supervision. The mother contested this claim. The case was heard over a number of days. District Judge Toale, being satisfied

there were reasonable grounds for concluding the children had been left unsupervised and unattended, granted the supervision order

for a period of 1 year, with a review date fixed for the 4th July, 2012. This order was not appealed on its merits. It follows that the

District Judge must have been satisfied that reasonable grounds existed for granting such an order. Can it then be said that Ms. A.

had been a ‘successful party’ in the various applications? Clearly not, judging from the overall outcomes.

The First Costs Application in the District Court

22. While this supervision order was still in being, therefore, Mr. Bennett, Ms. A.’s solicitor, applied to Judge Toale for his costs. The

judge heard legal arguments and considered written submissions. The HSE’s lawyer submitted that the judge should take into account

that Ms. A. was entitled to legal aid, had not applied for it, and, that in any case, that the District judge had no jurisdiction to award

costs in the circumstances. The HSE applied for a case stated to the High Court.

The Case Stated to the High Court

23. This case stated came before O’Malley J. in the High Court (HSE v. OA [2013] 4 JIC 1205), when the question raised was whether

O.A., the mother, described by her lawyers as having been “the successful respondent” in the District Court, could apply for costs in

child care proceedings. The HSE’s contention that eligibility to receive legal aid could, and should, be taken into account by a District

Court judge in refusing an order for costs, was made in the context of a more far-reaching submission, to the effect that a District

Court judge did not, in fact, hold any jurisdiction to award costs in child care cases.

24. O’Malley J. found that the availability of legal aid was an extraneous consideration to the costs application. She held the District

Court was vested with the necessary jurisdiction to award costs in care proceedings, and also that, having chosen her private legal

representative, the mother was legally entitled to seek costs against the Agency. But, she emphasised, she expressed no view on the

merits as to whether the mother was actually entitled to her legal costs.

25. In her judgment, delivered on the 12th April, 2013, the High Court judge replied in the negative in response to the two questions

then raised in the case stated, viz:

“i. Whether in exercising a discretion as to whether to award costs, a judge could take into account that the respondent

was entitled to legal aid; and

ii. Whether, when so engaged, a judge was required to take into account the fact that the respondent may have been

entitled to legal aid and had access to legal aid.”

26. In concluding that the District Court held jurisdiction to award costs, O’Malley J. reasoned that the effect of the HSE’s

submissions would have an invidiously discriminatory effect on impecunious parties, with the consequence that, unlike parents with

assets, those with limited means would have to explain and justify their choice of legal representatives. However, the judge went on

to make clear:

` “I know nothing about the merits of the claim or whether in the normal course of events, having regard to all the

normal factors taken into account by a judge, she [that is O.A.] would be entitled to an order for costs. All that appears

from the case stated to have been put up by way of opposition to her claim is, in effect, the proposition that she is

poor.” (emphasis added)

27. The High Court judge observed that the position adopted by counsel for the Attorney General, who had been joined in the

proceedings, was that child care cases could be dealt with by legal practitioners employed by the Legal Aid Board. While

acknowledging that such practitioners had amassed an impressive expertise in this area of law, the judge considered there was no

precedent for the proposition that District judges should use their discretion in the matter of costs to compel, or even encourage,

litigants to abandon their choice of advocate. To do so, would, she concluded, amount to an impermissible interference with the right

of litigants to choose their own legal representative, as costs were an aspect of the constitutional right of access to the courts. I will

return to one aspect of the judge’s findings on the relevance of a persuasive authority, Re T (Children) [2012] WLR, later in this

judgment. The HSE appealed this judgment to this Court.

The District Court Ruling on Costs

28. While this appeal was pending, Judge Toale decided to address the outstanding costs issue. The question came before him on the

23rd September 2013. Having considered both oral and written submissions, the judge delivered a preliminary written ruling. It is clear,

that on any objective reading, the intent of the ruling went far beyond the facts of the individual case. The wording shows that the

decision made on costs, was also “for the information” of other parties “in other cases”. The judge reiterated he had power under

Order 51 of the Rules of the District Courts 1997 to award costs. He disregarded part of the submissions of the HSE, as yet again

raising the issue of whether or not he should take into account the fact that Ms. O.A. was eligible for legal aid, and considered himself

entitled to proceed under O’Malley J.’s judgment.

Consideration of the District Court Ruling

29. It can be said without any controversy that Judge Toale’s costs ruling made a number of valid observations which apply to this

difficult area of law. He correctly pointed out that those most affected by care proceedings were children, who could be the subject

of an order which can have serious and long lasting effects on their lives; that the District Court enquiry should be carried out in the

best possible manner; and that “one of the primary requirements” was “that parents are engaged in, and participate fully in the

enquiry”. He pointed out that “Parents are uniquely placed to inform the decisions the court has to make both as regards to

“threshold” issues in respect of the application …, and any “care” issues that may on the making of such orders require the

attention of the court either immediately or subsequently”.

30. But, on any fair interpretation, the District judge’s observations were phrased at a level of generality, and principle, which

transcended the facts of the case before him. The ruling refers, in general terms, to the importance of ensuring parental involvement

in the proceedings, and the reasonableness of parents seeking legal assistance. It is said to be for the benefit of other parties in

other cases. The judge concluded that, provided parent-respondents acted reasonably in the context of contributing “purposively” to

the enquiry of the court, he would be “disposed to exercise a discretion to award costs in their favour”. It is impossible to avoid the

conclusion that the judge was seeking to pronounce upon a question of the policy he would generally adopt on costs issues in child

care cases. But what is of equal importance, he did not rely on the recognised principles on costs in the award. The judge awarded

costs to Mr. Bennett, Ms. O.A.’s solicitor, but did not identify any exceptional feature of the case to justify such a decision. He did

not find that the appellant had acted arbitrarily, capriciously or unreasonably. While the care order application may have lapsed, it

hardly needs emphasis that the judge granted further supervision orders after he had heard evidence over several days. Both the

passages from his determination, quoted above, and others, were not fact-specific to the case, and were clearly intended to be a

ruling of more general application. In light of those observations, one might rhetorically ask, whether, having expressed such views, a

judge could rationally or properly depart from the apparently inflexible principle of that ruling in other cases? Acknowledging that this

is not a judicial review, it is nonetheless difficult to avoid the conclusion that the judge might also have been open to the criticism of

unlawfully fettering his discretion. To operate or apply an inflexible general principle in an area of discretion such as this, or to fail

consistently to apply recognised principles, might, very arguably, render other awards, (or even this award), amenable to challenge

under Order 84, Rules of the Superior Courts. One of the defects in the ruling is that it appears inflexible and a rule of general

application in an area accepted to be governed by discretion, and where discretion is particularly important. The HSE on this occasion

appealed to the Circuit Court.

Appeal to the Circuit Court

31. The appeal to the Circuit Court, confined to the order for costs, came before His Honour Judge Nolan in the Dublin Circuit Court,

who considered further written and oral submissions from both parties, as well as hearing limited evidence.

32. As can be seen from the second question in the case stated, in proposing to reverse Judge Toale’s cost order, the Circuit judge

was minded to rely on, and referred to a U.K. judgment, Re T (Children) [2012] WLR. O’Malley J. had distinguished the facts of the

case before her from this persuasive authority, where the Supreme Court of the United Kingdom reversed an order of the Court of

Appeal of England and Wales, awarding legal costs to a child’s grandparents in a child protection case. There, the grandparents,

apparently ineligible for legal aid, had borrowed over £55,000, repayable over 15 years, to pay for legal representation in child care

proceedings which lasted over 5 weeks. In fact, prior to the final appeal, their costs were discharged, on a ‘without prejudice’ basis.

Speaking for the U.K. Supreme Court, Lord Phillips of Worth Matravers P.S.C., reversed the award of costs, pointing out that, under

the U.K. legislation, if a local authority received information that a child had been subject to, or likely to be subject to, serious harm,

it had a statutory duty to investigate the report, and where there were reasonable grounds for believing that the complaint may have

been well founded, to instigate care proceedings. Because the child care authority was performing a function vested in it by statute,

that court considered, costs should not be awarded, absent any indication that the authority had acted in a manner which was

unreasonable, arbitrary or capricious. The Circuit Court judge was obviously minded to adopt the same approach in reversing the

District Court judge’s award of costs to the mother.

The Appeal of the High Court Judgment

33. The HSE withdrew its appeal to this Court when it came on for hearing on the 29th April, 2014, doubtless having regard to the

situation which by then obtained, and observations from members of this Court.

Discussion

34. Standing back, an observer might well conclude that the approaches adopted both in the District Court and Circuit Court, both

suffered from the frailty of seeking to devise and apply inflexible principles of general application. Such an approach is erroneous. As a

range of other cases await the outcome of this appeal, it is necessary for this Court to attempt some clarification of the criteria

which are applicable in what is an area of discretion, but, where an issue of jurisdiction may also be engaged. The District Court judge

was seeking to outline a general approach for his court, where a range of child care cases are dealt with. One can readily understand

that a judge might well have significant reasons for a particular approach to costs, from the standpoint both of principle and

pragmatism. But it would be wrong to condone an incorrect practice as a potential guidance for other District Courts, were it to be

apparently endorsed by a narrow ruling by this Court confined to the facts of the case stated.

35. By contrast, His Honour Judge Nolan also was minded to apply an apparently inflexible principle; in this instance, to the effect that

costs should not be awarded to private lawyers, unless it were shown that the Child & Family Agency had engaged in misconduct, or

unreasonable, arbitrary or capricious behaviour in initiating or maintaining the child care proceedings.

36. It is necessary to point out here that the District judge was exercising his jurisdiction pursuant to the Child Care Act 1991. This

Act does not restrict rights of appeal in this context. Since the enactment of the Constitution, other statutes, for example, those in

the areas of immigration, planning, and extradition, have confined rights of appeal to this Court to points of law. Thus, on occasion,

this Court has held that appeals on award of costs cannot lie, as being part of the decision, judgment or determination of the High

Court.

37. However, in In Bonis Morelli, Vella v. Morelli [1968] I.R. 11 this Court, in addressing the pre-Constitution of 1937 costs regime,

which did not evince any such statutory policy restricting appeals, concluded that an incorrect exercise of discretion by the High

Court on costs might be reversed. Budd J, speaking for the majority, explained that an appeal may lie to this Court, even on such a

discretionary High Court determination. He pointed out that any deference to a trial judge’s determination of a discretionary matter

must hinge on a judge properly directing himself or herself as to the limits of their discretion. In In Re Comet Food Machinery Ltd (In

voluntary liquidation) [1999] 1 I.R. 485, Keane J. emphasised that this Court was not bound by pre-independence authorities on

appeals regarding discretionary orders, but nonetheless made clear, that although great weight would be given to the views of a trial

judge, this Court should also have regard as to whether the orders of the trial judge were in accordance with established principles.

38. Applying this principle by analogy, therefore, had the District Court judge, applying established principles and identifying his

reasons, decided that, in this particular case, it was appropriate to award part-costs on the withdrawn care order application, there

might, have been merit in concluding that the Circuit Court judge should not interfere with such an award, given the fact that there

had been no full hearing on the issue before him on appeal. However, it is impossible to reach the same conclusion as to the

supervision orders, which the District judge granted. It cannot be convincingly asserted that the mother was a “successful party”, in

the latter instances. Nor can it be said that the District judge’s award of costs, had to apply the well established phrase, “followed

the event”, or “established principles”. In fact, the ruling does not set out a rationale for the award of costs, nor does it seek to

distinguish the full care proceedings from the supervision orders made, which were clearly unsuccessful from O.A.’s point of view.

The Application of Established Principles

39. I pause here to observe that, the use of the term “the event”, as in “costs follow the event” is not always, in itself, a

satisfactory criterion, in the context of child care cases, where, as here, there may be a number of “events”, and there are different

orders made as part of a continuum. The term “outcome” may be a more apposite approach when considering such applications,

thereby allowing a judge to take a more all- encompassing view. Whether it was appropriate to deny a successful party their costs

because of the existence of legal aid, simply does not arise as an issue here.

40. This case stated, in fact, raises the more troublesome question of when, if at all, it would be appropriate to award costs to a

party for whom the outcome has been largely unsuccessful. Insofar as the Circuit judge might have been disposed to place reliance

on Re T, it is apposite to point out that the High Court judge distinguished it and preferred the approach of the Court of Appeal,

which allowed the grandparents costs. Arguably, it would have been appropriate for the learned Circuit Court judge to attach weight

to the High Court judge’s reasoning and to her distinguishing Re T, even if the issue before him was slightly different. While expressing

no further view, the costs regime in child care cases in the neighbouring jurisdictions are based on a different system with many set

and established guidelines. The U.K civil legal aid scheme operates in a different manner from that in Ireland. It is not appropriate for

the District Court or the Circuit Court, on appeal, to seek to lay down a general, or inflexible, rule of application or approach on costs

awards, an area which is, by its nature, discretionary, although that discretion should be exercised within well defined principles.

Potential Consequences of a General Approach

41. It is appropriate to make a number of observations in relation to the approach which might follow from the ruling made in the

District Court. First, there is a risk it would create a type of “shadow” legal aid scheme administered by judges, exercising a wide

discretion, where rules might not be properly recognised or its application might vary. It is unclear how, or by what criteria, such a

‘scheme’ would be administered or applied. The fair and proper administration of a legal aid system, whether civil or criminal, is no

small matter to practitioners or individuals before the courts. If there is to be an argument to the effect that the administration of

justice, and/or the vindication of family rights under the Constitution, requires a more effective scheme of legal representation for

parents and others in child care proceedings, (and I do not exclude that possibility), such a matter is one ultimately for this Court, in

a case where the issues are properly argued, rather than be obliquely determined in a single ruling in the District Court on costs.

42. Assisting and representing clients in child care cases is not easy. On occasion the parties are not in a position to exercise clear

judgment, or to accept good legal advice. Cases can be unnecessarily prolonged where lawyers, whether privately retained or not,

feel constrained to follow their clients’ instructions. Situations might very easily arise where, for many reasons, perhaps cultural

unfamiliarity, there could be a distrust of lawyers employed by the State. But while understanding the District judge’s motivation,

therefore, there are real difficulties in any scheme dependent on an individual assessment of co-operation by parents. It creates the

possibility of significant divergences in approach between District Court judges, and Circuit Court judges on appeal. It opens up the

possibility of undesirable variations between particular cases, conducted in different District Court areas and circuits, and might give

rise to a possible apprehension of a judge favouring the adoption of a particular approach by lawyers appearing before him in these

matters.

43. Child law requires high degrees of skill, sensitivity and patience. However, this cannot militate against the proper conduct of legal

proceedings in accordance with established procedures albeit in circumstances where, as here, the judicial role is, at least in part,

inquisitorial. A party is entitled to be objectively advised as to the proper legal course of action which is available. At the same time,

it is proper to recognise the reality that highly experienced judges sometimes find themselves having to deal with very lengthy cases

and heavy lists. There is surely a case for further studies on the proper management of court time in child care cases where delays,

unmanageable lists, or very long individual cases, risk injustice, and may actually determine outcomes by the elapse of time and its

effects on volatile family situations. Priority in court space and time is not the prerogative of the wealthy or powerful commercial

interests.

44. In cases of this type it is undesirable that eligibility for legal costs awards should be determined only after the fact, and by

reference to a judge’s conclusion as to the degree of co-operation of the parents in the proceedings. If an individual is entitled to

legal representation, he or she is entitled to instruct their lawyer to take such reasonable and lawful steps as they may wish in order

to advance their case, insofar as this is consistent with professional conduct, and the efficient running of the case. On occasion, this

may involve taking an approach which some judges might consider not ‘helpful’. It is not desirable that there should be an interference

between the relationship between a lawyer and his or her clients, or that lawyers be put in a position where the prospect of

remuneration may be at odds with proper legal duties to a client. Obviously, there might be benefits from such a ruling, but I do not

think this is the correct way to achieve greater efficiency or better case management.

45. Furthermore, in such a scheme, costs awards, perhaps incapable of being measured in advance, are imposed upon the State. A

judge, in operating such system would, implicitly, be making a pre-determination as to the distribution of State funds thereby calling

into question the principle of separation of powers.

46. Litigation can be expensive. Apart from indemnifying a successful litigant (it is hard to say this arises here), the risk of an adverse

costs award in such cases as the situation arises may, on occasion, have the effect of deterring litigants from pursuing unmeritorious

claims. If, for example, the Child and Family Agency can have an award of costs made against it, if it acts mala fides, recklessly or

capriciously, then that is intended to discourage such conduct. It must follow, that if a court routinely awards costs to parents, then

that is bound to affect the decision-making capacity of the Agency in whether or not to bring proceedings at all. But there is

potentially a more serious consequence. It is one which ultimately goes to the welfare of children at risk, which must be a primary

consideration.

47. If costs are to be routinely awarded, and the Agency itself becomes over-careful in deciding not to bring proceedings, then

children may be at risk. Additionally, the financial consequences which may result from non-action may ultimately come out of some

other part of the Agency’s budget, or the State budget more generally. Substantial awards of damages are not unknown for State

Agency failures in statutory duty in child care cases. A consideration must be child welfare, and the protection of children. I am not

persuaded, therefore, it is a function of a District Court to engage in a type of determination which would be tantamount to a

resource allocation decision, inductively applied, by a process of analysis conducted through the narrow lens of a single costs

application and award.

Criteria Which May Appropriately be Adopted in the District Court on an Application

48. Having regard to the complexity of the issues in such cases, a rule that costs follow the outcome may therefore be a useful

starting point in District Court child law proceedings. These costs are, of course in proceedings seeking court determinations, and

bear certain similarities to orders in other civil proceedings. But the fact that it is not suggested that costs could be awarded in

favour of the agency when a care order or supervision order is granted, or some other successful application is made, shows that one

is not dealing here with the normal or established rules. For example, if the traditional approach was taken in this case, then either

the CFA would be said to be “successful”, (and entitled to its costs because it obtained supervision orders), or, if a more nuanced

approach were taken, it might be said that no order for costs should be made because the Agency succeeded in part, but did not

obtain the care order it sought initially. Hypothetically, an order for costs in the discontinued full care order proceedings might have

been set off against an order for costs in the supervision order proceedings. But this situation might result in a serious financial

detriment to the mother, as well as other complexities in measuring and balancing costs.

49. I take the view that the approach to be adopted by the District Court, in dealing with statutory child care proceedings, should

normally be predicated on whether, in the first instance, it was proper to commence the proceedings. While “the event” is normally a

starting point, there are, however, cases in which, it must be recognised, that it might be proper to order the costs of unsuccessful

parents to be paid by the CFA, if, for example, proceedings were continued in circumstances where they were futile, or where the

costs might place an inordinate burden on the parents. The interests of the child, and the interests of justice, should be ensured in

accordance with the following general principles in District Court proceedings. I think the starting point should be that there should be

no order for costs in favour of parent respondents in District Court care proceedings unless there are distinct features to the case

which might include:

(i) A conclusion that the CFA had acted capriciously, arbitrarily or unreasonably in commencing or maintaining the

proceedings;

(ii) Where the outcome of the case was particularly clear and compelling;

(iii) Where a particular injustice would be visited on the parents, or another party, if they were left to bear the costs,

having regard to the length and complexity of the proceedings;

(iv) In any case in which a District Court seeks to depart from the general default position, and to award costs, it is

necessary to give reasons. These reasons must identify some clear feature or issue in the case which rendered the case

truly exceptional. It is true all cases are distinct, but not all cases are exceptional. The reason for the distinction

rendering a costs order justified must go to whether or not there was some unusual or unprecedented issue, or issues,

which required determination or whether the case properly, and within jurisdiction, determined a point that had application

to a range of other cases.

Were a District Court to adopt this approach, a Circuit Court Judge on appeal should be slow to interfere with a decision of the

District Court, especially when the Circuit Court Judge has not engaged in a full hearing. The effect of these general guidelines would

be to accord, perhaps, greater leeway for the exercise of the District Court’s discretion, but within jurisdiction. Different

considerations would often apply in relation to child care proceedings in the High Court where the Court is exercising its inherent

jurisdiction. Very frequently the cases in that category address situations where there is no direct precedent, where the same

statutory considerations do not come into play; and where, frequently, the CFA acknowledges that due to the nature and complexity

of the case it would be unduly burdensome for parents or other parties to bear their own costs.

50. In the circumstances, therefore, I would reformulate the question posed by the learned Circuit Court judge, so as to read:

“In what circumstances is it appropriate for the Circuit Court, on appeal, in a child care proceedings, to interfere with,

or reverse, the order of a District Court judge granting costs to the parents against the Child & Family Agency?”

51. I would then answer the question:

“If there is a departure from the principles and criteria identified in this judgment.”

52. I would reserve for future argument in another case the hypothetical question of whether the absence of a more comprehensive

scheme for legal aid (perhaps irrespective of means) in certain categories of care proceedings is a failure to secure the administration

of justice, and/or a failure to vindicate the position of the family in its constitutional authority.

53. I would, therefore, remit the matter to the Circuit Court to allow it to hear submissions on the application of the above criteria to

this case. It is clear that this case stated itself establishes principles of a more general application than to the specific facts. As

indicated earlier, the Court has been made aware that there are a substantial number of pending cases where this issue is

outstanding, and thus the law required to be clarified.