District Court grants father costs for emergency care order but denies them for interim care order proceedings.

IEDC [2018] 01

THE DISTRICT COURT

DUBLIN METROPOLITAN DISTRICT

TUSLA CHILD AND FAMILY AGENCY

APPLICANT

AND

ML

FIRST NAMED RESPONDENT MOTHER

AND

IPO (FATHER OF child 1)

SECOND NAMED RESPONDENT FATHER

IN THE MATTER OF, CHILD 1

CHILD CARE ACT 1991 – SECTION 18 (1)

CARE ORDER

INTRODUCTION

1. This is an application for costs by brought by Counsel instructed by solicitors of the second named Respondent father against the

Applicants Tusla, the Child and Family Agency (the Agency) who are represented by their solicitors.

2. Nothing is to be reported regarding this case which would serve to identify the child or the parents or the extended family in the

proceedings. These proceedings were heard in camera and remain subject to Section 29 and 31 of the Child Care Act, 1991.

HISTORY OF PROCEEDINGS

3. The mother had executed a voluntary Reception into Care Form the period of 4 weeks in respect of her children (Child 1 and Child

2). The respondent fathers of each child were in agreement with this course of action at the time. However the mother then

withdrew her consent to the Child 1 and Child 2 remaining in care.

4. The Applicant applied Ex Parte for short service of Emergency Care Order in respect of the children the subject matter of these

proceedings.

5. When the proceedings came before the court the Agency reached an agreement with the Respondent mother and the father of

Child 1 and counsel for the father sought and was granted costs of the day in the circumstances prevailing in that regard. However

no agreement was reached regarding Child 2 and the Agency sought to proceed to hearing regarding the Emergency Care Order and

further sought an abridgment of time to facilitate the service of proceedings for an Interim Care Order (ICO) pursuant to Section 17 of

the Child Care Act 1991 on the Respondent parents of Child 2, and this Order was granted. The Court’s permission was sought under

s. 47 of the Child Care Act 1991 to lift the “in camera rule” to the extent necessary to allow the parents in these proceedings to be

assisted by an Advocate from an appropriate advocacy service and this was also granted. Both parents and legal representatives

were present in Court for the hearing of this matter. Both applications under Section 13 (1) and Section 17 (1) were adjourned to

facilitate service by the Agency of the ICO application and to enable the Respondent parents to instruct their legal representatives so

that their constitutional and procedural rights were protected. Both respondent parents agreed, without prejudice that this child

would remain in care pending the determination of the proceedings before the Court.

6. On the date of hearing of the ECO & ICO application the Solicitor for the Respondent mother sought to adjourn proceedings for an

Interim Care Order pursuant to Section 17 (1) of the Act and relied upon the case of CFA v McG and JC [2017 IESC] and KA -v-

Health Service Executive Ors (2012) in this context. He outlined that he did not have the opportunity to take full instructions and

his client would be prejudiced if she was not afforded this opportunity. He had been provided with a detailed Social Work Report in the

course of the morning of the hearing and he needed to take further instructions on the issues arising. He submitted that were his

client forced to proceed to defend the ICO application and an ECO application on the date of hearing in circumstances where she was

not able to instruct her solicitor fully, and bring evidence to support her case, it would be fundamentally unfair. The Solicitor for the

Agency indicated that there was very little material difference between the Social Work Report served already, with that served on

the day of hearing, and while first Report dealt with two children the Second Report dealt exclusively with the child the subject

matter of these proceedings. The case for an ICO and ECO was left stand to enable the solicitor for the mother to obtain more

complete instructions.

7. The Court was advised that the Respondent father primary concern was to maintain his relationship with the child to whom he was

securely attached. The respondent parents were each parties to proceedings under the Domestic Violence Act 1996 in a private law

matters in the family court and these issues overlapped to some extent with the applications sought by the Agency.

8. The Court heard evidence from three social workers; OT, Social Worker, who was allocated in the period [date redacted]; RMCM,

Social Worker, who was the allocated social worker during [date redacted]; and DD, Social Worker, who was allocated to the case

three months before the date when voluntary care agreement executed by mother. The Court also heard the evidence of the

Respondent Mother and submissions made on his behalf by the father's counsel.

9. It was not in dispute that the mother experienced a crisis that precipitated the circumstances in which the mother requested the

Agency to receive her children into care on that date. Neither was it in dispute that the mother was admitted to a psychiatric

hospital as a voluntary patient. The circumstances in which this occurred were disputed however. The mother's position was that she

was suffering from stress and anxiety and had sought assistance from the Agency in the form of a short term respite care placement

for the children over the weekend. It was her case that she was denied that assistance and she was provided with a handwritten

note outlining the steps she should take to support her over the weekend Friday to Monday of that week. She asserted that this lack

of support caused her to become overwhelmed and this triggered her hospital admission. The relationship between both respondent

parents was disintegrating, they were involved in family law proceedings and had not worked out a compromise regarding the

parenting of their child. It was her case that it was in these circumstances that she entered into a Voluntary Reception into Care

Request. The Agency position was that there was a pattern of such respite placements for the children, as well as a history of other

issues which impacted on the children including, exposure to domestic violence, multiple changes of residence and homelessness,

historical alcohol dependency all of which impacted on the child's best interests and emotional welfare.

10. The Psychiatric Report admitted in evidence at the hearing without formal proof, indicated that the mother was not suffering from

any mental health issues at this time. It was the mother's evidence that she had accommodation, and was anxious to resume the

care of her child. She was willing to enter into a process to resolve disagreements with the Respondent father which would resolve

the many issues which had resulted in private law proceedings. It was not disputed that the respondent parents were now residing

separately. The Applicant and Respondents had worked out a Safety Plan for the child.

11. Following a full hearing of the Emergency Care Order proceedings the Emergency Care Order was refused on the basis that the

evidence adduced had not established reasonable cause to believe that there would be a risk of both an immediate and serious nature

to the health of the child if removed from care and restored to the care of her mother at this time. This case did not conclude until 6

o'clock approximately and so the costs application by counsel for the respondent father was adjourned.

12. The Court also adjourned the Application for an ICO under Section 17 (1) for further hearing to enable the parties to have the

opportunity to bring all evidence necessary to support the case they were making. Furthermore, the Court appointed a Guardian Ad

Litem for the child to ensure the welfare of the child was separately represented in Court adjourning the hearing. [date redacted].

13. The Interim Care application was subsequently further adjourned in order to facilitate the holding of a Family Welfare Conference

involving the first and second named Respondents and child protection professionals and relevant parties to consider the necessary

amendment of a Safety Plan to better secure the welfare of the child. An Amended Safety Plan was ultimately put in place and the

Agency did not ultimately seek an Interim Care Order.

14. The costs application was adjourned to facilitate the Applicant and Second Named Respondent making legal submissions on costs

having considered the jurisprudence of the Superior Courts in this matter in the context of proceedings under the Child Care Act,

1991.

LEGAL SUBMISSIONS OF SECOND NAMED RESPONDENT

15. The Second Named Respondent refers the Court to Grimes v. Punchestown Developments Co. Ltd. [2002] IESC 79 (20

December 2002) in which the broad principles of costs are set out in the judgment of Denham J. in a case heard by Judges Denham,

Hardiman and McCracken [Nem Diss.] namely that the normal rule is that generally costs follow the event. Counsel argues that in

circumstances whereby the State brought a case against parents on very short notice and following a full hearing that application for

an ECO, the order sought was refused, the principle that costs should follow the event has some resonance. Furthermore the Agency

was not successful either in those ICO proceedings to the extent that no Interim Care Order was made. The parents were able to

resolve all of the Applicants concerns by way of a Safety Plan following a Family Conference and so the application for costs lie in

respect of those proceedings also. He submits that the application for costs therefore refers to both the ECO and the ICO

proceedings.

16. Council then addressed the guidance laid down for District Courts for applications under the Child Care Act, 1991 as set out in the

case of Child and Family Agency v OA in both the High Court [2013] IEHC 172 and the Supreme Court judgment reported at [2015] IR

716 and [2015] IESC 57. He submitted that at paragraph 52 of the High Court judgment emphasised that child care proceedings are

essentially not an event in which there are "winners and losers" and so there is no "event "for costs to follow, however in this case

the State brought claims and were not successful in either set of proceedings. The District Court has discretion in such matters and

should also have regard to the "run of the case".

17. In the context of the Supreme Court Judgement at paragraph 52 of the IESC report some guidance is given to the District Court in

considering the issue of costs in these cases. The points of submission under paragraph 52 (i)-(iv) are accordingly addressed in the

submissions.

18. The Respondent father does not contend that the Agency acted improperly by commencing the proceedings and neither is it

submitted that they acted capriciously or arbitrarily in commencing the proceedings and acknowledges that the Applicants acted in

good faith, however the proceedings were commenced in haste. His client, as the father of the child, had to be properly advised and

represented in the proceedings before the Court and he could not achieve that without legal advice and representation. The

Respondent father had entered into dialogue with the Agency to achieve the best interests of his child and did not act unreasonably.

When the ECO proceedings were issued it was necessary to engage with them and it was the child's right to have such proceedings

determined having included her parents in the court process to ensure due regard was given to the rights of the child and her

parents.

19. The second issue raised in the Judgment was whether the outcome of the case was particularly clear and compelling. The

Emergency Care Order was refused on the second day of hearing [date redacted] and so the Agency was unsuccessful in that regard.

However the Applicant proceeded to engage with the ICO application and the Applicant ultimately withdrew that application as a

Family Welfare Conference was held and a Safety Plan agreed to meet the concerns of the Applicant and the respondent parents.

Hence the Applicants were also unsuccessful in the ICO and it was submitted that having failed to secure an ECO and having explored

the issues, the outcome of the ICO case was particularly clear and compelling;

20. The third issue was that a particular injustice would be visited on his client if left to bear the costs, having regard to the length

and complexity of the proceedings. The ECO was sought at very short notice. It was a complex case and the second day of hearing

[date redacted] was a lengthy one not finishing until 6 pm.

21. The proceedings were complex from the subjective position of his client, who was engaged in both the family law court process

and the child protection court process. From his client's perspective, this was a truly exceptional court application by the Applicant

and he was expected to deal with the matter very urgently over the two days of hearing [dates redacted] in circumstances where he

was at that time both homeless and destitute. His social welfare payment was frozen and he was dependent on a charity for food.

22. The child protection proceedings were exceptional and the issues were of great importance for father of the child and he was

deeply concerned about her welfare. He had to be advised about the different thresholds of the ECO and ICO which where heard

contemporaneously, although the ICO was then adjourned on the second day of hearing [dates redacted]

23. For all of these reasons, his client should be entitled to costs having particular regard to paragraph 52 (ii) and (iv) of CFA v. OA

IESC 52 (para. 52 CFA v. OA [2015] IESC 52 I.R 2) but also taking into account his client's circumstances which were relevant to

(iii). He wished to stress that from his client's perspective the proceedings were truly exceptional. In the AO case, the ECO

application was successful, and the ICO application resulted in a Supervision Order being made rather than an ICO. In this case the

ECO was refused and the ICO was withdrawn. In essence the proceedings did not result in an Order of Court of any kind. The matters

were managed by a Safety Plan and the proceedings withdrawn by the Agency.

LEGAL SUBMISSIONS OF APPLICANT

24. In response to the last point made by counsel for the Second Named Respondent his client should clarify that it was the solicitor

for the First Named Respondent who was largely engaged in drawing up the Safety Plan and not the Second Named Respondent who

was not a key participant within that Safety Plan. It was acknowledged that he had to be legally advised in respect of the Safety

Plan however.

25. The Applicant submitted that the proceedings were necessary and a proportionate exercise of the obligations of the Agency to

secure the welfare of children by his client as outlined in Section 16 of the Child Care Act, 1991. The default position as outlined in

the AO case, Supreme Court decision, was that in these types of cases it would not be proper to award costs and that, as outlined

by Counsel for the Second Named Respondent father, that

“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."

It was his submission that the facts of this case do not engage that trigger and there was no issue arising as to the nature and

complexity of the case which would make it unduly burdensome for parents or other parties to bear their own costs. Notwithstanding

the fact that the father has been described as being destitute and homeless at that time, and yet needed representation, that he

had problems securing social welfare etc. However none of these issues would render the facts truly exceptional within the type of

situations which occur routinely in many such cases and so would not come within the parameters of paragraph 52 (iv) [IESC 52].

However, it had been accepted that the speed with which the proceedings were brought to Court, and the issues involved were very

important for the Respondent father of the child and if the Court was going to make an Order for costs it should only limit such costs

to only one legal representative rather than solicitor and counsel.

DECISION

26. I am satisfied that there was no element of impropriety or capriciousness in the position adopted by the Agency in this case and

note further that this position is acknowledged by the Second Named Respondent.

27. Section 3 of the Child Care Act, 1991 identifies the responsibility of the Agency to promote the welfare of children. Section 16 of

the Act obliges the Agency to institute proceedings where they feel that a child requires care or protection which he is unlikely to

receive unless a court makes an Order. Section 24 of the Act obliges the Agency to have regard to the rights and duties of parents

and to regard the welfare of the child as the first and paramount consideration. There are clear tensions in managing all of these

obligations. An issue which arises however and this is conceded by the Applicant, is the speed with which the proceedings were

issued, and the speed with which matters unfolded in Court on the two dates of hearing. While the Agency has a statutory obligation

to act swiftly and sometimes on very short notice, the issues in this case were well known to the Agency. It can be argued that the

combination of the complex family circumstances taken together might have been considered more holistically at a pre-crisis stage so

as to obviate the crisis. Although it would be very unfair to hold social workers, who believed that a child was facing an imminent

threat to unreasonable standards, it was possible to resolve all the concerns of the Agency though dialogue and without court orders.

28. Paragraph 63 of the Judgment of MacMenamin J. in the OA case points out that in child care cases there are a number of

constitutional rights at stake. The child's right is to have decisions made with his or her welfare as the paramount consideration.

Equally, parents have rights and these include the right to be properly represented in proceedings where the outcome can be truly life

changing for all involved and the practical protection of these rights necessitates access to an appropriate level of legal

representation.

29. Paragraph 52that judgment outlines as follows:

"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.

30. As pointed out in the case of MM -v- The Child and Family Agency [2017] IEHC 14 this paragraph must be read in conjunction

with paragraph 4 of CFA v. O.A [2015] IESC 52 I.R. 2 of the judgment which pointed out that there is a discretion to award costs in

this category of case, but this discretion is not at large and the District Court must exercise its discretion in each case within the

jurisdictional criteria established in law.

31. In reaching my decision to refuse the Emergency Care Order I was concerned about the brevity and content of the handwritten

Safety Arrangements written out by the Social Worker for the Respondent Mother on the date of the mothers "crisis" which led to her

request that the Agency receive her children into it's care [date redacted] in light of the background of the case as outlined in

evidence by the social workers and the mother. The Social Workers were concerned about a pattern of 'respite care' which would be

detrimental to the child's attachment and welfare. However the reality is that the child would have be placed in another short term

placement.

32. Having considered the totality of the evidence adduced before me I concluded on the evidence adduced that the Agency had not

established the threshold criteria of Section 13 (1) of the 1991 Act. I adjourned for further hearing the Section 17(1) application and

appointed a Guardian Ad Litem for the child. Ultimately I was not called on to determine that application as the issues were resolved

though a Safety Plan acceptable to the Agency;

33. The combination of circumstances in this case included:

a) A vulnerable mother in crisis due to being overwhelmed [date redacted] but who it was acknowledged could care

for her child's basic needs, and ensured she was regularly brought to crèche and her doctor as required, and there

was no allegation of physical abuse of the child the subject matter of these proceedings;

b) A vulnerable non-national father who was homeless and destitute at the date of the proceedings;

c) The child in this case has a dual cultural heritage and natural and imprescriptible rights as defined in Article 42A

of the Constitution and rights under the 1991 Act to have her welfare regarded as the first and paramount

consideration;

d) The Applications were brought on very short notice, and the Agency sought to run both the ECO and ICO

proceedings contemporaneously as it was their assessment that the welfare of the child so required to be assured;

e) Both parents required an appropriate level of legal advice and representation;

f) The father's right of access to the Court as guaranteed by Article 40.3 and Article 6 of the ECHR and Article 47

of the Charter of Fundamental Rights of the European Union would be impaired were he not to have such access by

reason of not having the benefit of legal advice and representation at such short notice;

g) The Second named Respondent father and the First named Respondent mother were involved in Domestic

Violence and Guardianship proceedings before the District Family Court contemporaneously with the child care

proceedings;

h) The father was homeless and although they had ceased to reside together there was residual conflict between

them;

i) A Family Welfare Conference resolved issues which concerned the Agency in 2016, but this resolution mechanism

did not appear to have been considered or employed when issues arose in 2017;

j) The Medical Report identified that the mother had no mental health illness on discharge, and had plans to manage

her anxiety through attendance at a day clinic and wished to resume her parenting of the child;

k) If the ECO was granted the child would move foster placement and not have the benefit of her sibling in the new

foster placement;

l) The Applicant accepted that the child the subject matter of the proceedings had a good attachment to the

Respondent father who has been a consistent figure in the child's life.

34. The Agency did not act capriciously or arbitrarily. However, ultimately, they did not adduce evidence that met the threshold of

Section 13(1).

35. The Interim Care Order proceedings under Section 17(1) of the 1991 Act were resolved (following adjournments of the

proceedings before the Court) through a Family Welfare Conference which was convened to resolve all issues with the benefit of an

Agreed Safety Plan.

36. For these reasons I grant the Respondent father the costs of the ECO application which was heard and determined on the two

dates of hearing [redacted dates] (on the basis of one legal representative for both days).

37. The rationale for this decision is because the ECO proceedings were commenced by the State at very short notice, took time at

hearing in light of the evidence adduced and properly interrogated, and were complex having regard to the combination of factors

involved which are outlined above and because the respondent father would not have the practical protection of his rights as a

father, both under the Constitution and otherwise, unless he had access to an appropriate level of advice and representation in the

proceedings.

38. Having carefully considered the submission of counsel for the Respondent Father I am not persuaded to award costs in respect of

the Section 17(1) ICO proceedings as I do not accept his submission that the outcome of those proceedings was particularly clear

and compelling. The proceedings were ultimately resolved following a Family Welfare Conference which amended the Safety Plan

entered into by the parties after the ECO proceedings. This took time and engagement by all parties who ultimately reached a

consensual agreement.

39. I have had regard to the Supreme Court guidance in the OA case, and the subsequent High Court proceedings including cases

such as AMC v the CFA [2017] IEHC 61 (Noonan J.), MM v CFA [2017] IEHC 14 (O'Regan J), and L.G v CFA [2017] IEHC 633

(O'Faherty J.). The latter two cases were determined after the Supreme Court case of OA and both confirm that the principles set out

in the OA case are quite specific in restricting the District Courts jurisdiction to award costs to particular and exceptional situations. I

find that there was no combination of circumstances as envisaged by the OA case in respect of the ICO proceedings but there was

such combination for the reasons stated in the ECO proceedings.

Judge Rosemary Horgan

05/02/2018