High Court awards no costs to TUSLA despite striking out applicant's delayed proceedings due to child welfare and constitutional importance.

THE HIGH COURT

[2026] IEHC 114

Record No. 2016/367 JR

BETWEEN

D.O’H.

APPLICANT

AND

TUSLA/THE CHILD AND FAMILY AGENCY

RESPONDENT

AND

D.H., C.O’C. and THE ATTORNEY GENERAL

NOTICE PARTIES

Ruling on Costs delivered ex-tempore by Barr J. on 25 February 2026.

1. This is the ruling on costs arising out of the judgment in this matter delivered by the court on 6 February 2026, which judgment is reported at [2026] IEHC 53.

2. In the judgment, the respondent was successful in its application for an order striking out the proceedings brought by the applicant against it on the grounds of delay. In written submissions dated 19 February 2026, it was submitted on behalf of the respondent that as it had been entirely successful in its application to have the proceedings against it struck out on grounds of delay, the general rule that costs should follow the event, as provided for in O. 99 of the Rules of the Superior Courts and in s.

169 of the Legal Services Regulation Act 2015, should be applied and the respondent should be awarded the costs of the proceedings, to include the costs of its motion, as against the applicant.

3. In support of that application, it was submitted that while the court always retains a discretion in relation to the issue of costs, where certain factors had been set down in the 2015 Act to which the court could have regard if it were departing from the usual order in relation to costs following the event; it was submitted that none of the matters set out therein were applicable in this case. In particular, it was submitted that there had been no conduct on the part of the respondent that would warrant the court making an order either limiting the costs that it should be awarded, or making an order that it should not recover the costs of the proceedings.

4. It was submitted that where the respondent had acted entirely reasonably throughout the proceedings and where it had been entirely successful in having the proceedings against it struck out, it was fair and reasonable that the costs of the proceedings should be awarded to the respondent against the applicant.

5. The applicant furnished written submissions on costs on 20 February 2026. In those submissions it submitted that while the respondent had been successful in having the proceedings against it struck out; there were good reasons why the court should not apply the usual rule that costs follow the event. It was submitted that in the circumstances of this case, the court should depart from that rule and should in fact award costs to the applicant.

6. In support of that submission, the applicant referred to a number of cases where it had been held that in cases that involved the welfare of children, these constituted exceptions to the general rule that costs should follow the event: see BE v RE [2023] IEHC 413; D v D [2016] 2 IR 438; Child and Family Agency v OA [2015] 2 IR 718 and CFA v D [2026] IEHC 33.

7. It was further submitted that it had been established in the case law that costs ought not to be awarded against parents who bring actions in relation to the care and welfare of their children. In particular reference was made to the decision in B v CFA [2024] IEHC 461. It was submitted that the same approach had been applied by the Supreme Court in the CFA v OA case. It was submitted that these cases had recognised that if the CFA was awarded costs against parents who brought proceedings challenging various aspects of care orders or aspects concerning the welfare of their children, this would have a chilling and detrimental effect on the conduct of future parents who were concerned about the welfare of their children. It was further submitted that the caselaw established that where the proceedings were brought by parents in the context of advocating for their children's rights or welfare, this could constitute an exception to the general rule in relation to costs following the event.

8. It was submitted that when the court had regard to the circumstances in this case, in particular, the fact that at the time when the proceedings were instituted, the applicant's son was in the care of the respondent; the fact that the proceedings were instituted by the applicant in an attempt to remedy what he perceived as being an abuse of his rights and the rights of his son in relation to access to his son, by the respondent; and having regard to the fact that the applicant had brought his action on for hearing before the High Court in October 2018; these constituted significant factors that the court should take into account in awarding the costs of the proceedings in favour of the applicant, notwithstanding that he had been unsuccessful in those proceedings.

Discussion and Conclusions.

9. The court is grateful to counsel for their careful and thoughtful submissions on the issue of costs in this case. Their written submissions have been of great assistance to the court in its deliberations.

10. The court accepts that the general rule which is provided for under the 2015 Act and in the rules of court, is that ordinarily costs should follow the event. This means that where a party has been entirely successful in either bringing proceedings, or in resisting proceedings that have been brought against them; that party should ordinarily be entitled to their costs. This is because their position has been entirely vindicated in the judgment of the court.

11. However, in deciding upon the issue of costs in a case, the ultimate result of the case is not the only relevant or determinative factor. This is recognised in the legislation and in the rules of court. In this regard, s. 169 sets down a number of different matters that may be referred to by the court when considering whether a party who has been successful should be deprived of some or all of his costs. This list is not exhaustive.

12. I am satisfied that when considering the issue of costs, the court must look at the entirety of the case in a holistic manner. It must strive to do justice between the parties having regard to the circumstances in the case.

13. In this case, there were truly extraordinary circumstances. The first matter to which the court lays great importance, is the fact that this applicant actually brought his action on for hearing relatively quickly. It came on for hearing before the High Court in October 2018. Thus, the applicant had done all that could be expected of him and his legal advisers up to that point in time. It was the trial judge, who, on the second day of the hearing, when she had read all the papers overnight, decided of her own motion to join the Attorney General into the proceedings. This was because she recognised that there were issues of very considerable constitutional importance involved in the case.

14. What happened thereafter, was that the case somewhat went off the rails due to a combination of circumstances, many of which were beyond the control of the applicant or his legal advisers. These circumstances have been set out in considerable detail at paragraphs 11 – 39 of the judgment.

15. The court will not repeat these circumstances in detail in this ruling. It will suffice to note the following: while the applicant brought his proceedings on for hearing relatively quickly and achieved a hearing date in October 2018, the proceedings then proceeded down a route which was complex in the extreme. As already noted, the trial judge directed that the Attorney General should be joined as a notice party to the proceedings. She also gave liberty to the respondent to bring a motion seeking to have the child, in respect of whom the first applicant was seeking access and information, be removed as a co-applicant to the proceedings. That application was ultimately heard by the court in March 2019. On 1 April 2019, the court delivered a judgment removing the child as a co-applicant and instead appointing a Guardian ad Litem (GAL) to represent his interests as notice party to the proceedings.

16. The applicant appealed that order to the Court of Appeal. That appeal was ultimately withdrawn by the applicant when the appeal was settled between the parties, with no order being made as to costs. When the matter was returned to the trial judge in the High Court in March 2020, she directed that the GAL should furnish an affidavit as to how effect should be given to the voice of the child in the proceedings.

17. As noted in the judgment, Covid 19 intervened later that month. This prevented court proceedings being heard in the High Court for some period, although its effect on the hearing of judicial review proceedings was somewhat limited. It may well also have had an effect on the GAL's attempt to provide her affidavit, as she would have been prevented from interviewing the child, who was incarcerated in prison as a result of a conviction on a criminal charge during part of this time.

18. Ultimately, the GAL delivered her affidavits in October and November 2021. On 25 November 2021, the solicitor for the respondent informed the applicant’s solicitor that he would have the matter relisted before the High Court for mention with a view to obtaining a hearing date. It is not clear what the respondent’s solicitor did thereafter. Certainly, he did not make any further contact with the applicant's solicitor.

19. As noted in the judgment, the applicant's solicitor's wife received a diagnosis of cancer in April 2022. She died of this disease in September 2023. The court recognised that the applicant’s solicitor would have been obliged to spend considerable periods of time looking after his wife during this period.

20. In addition, the child had come of full age in June 2022. He had also served a second period in prison due to a conviction on drugs charges.

21. In the judgment it is also noted that the applicant himself had considerable health issues, both of a physical and mental nature, during this period.

22. While the court ultimately held that the delay in the case was not excusable and that in the circumstances it was necessary to strike out the proceedings on grounds of delay, the court has very considerable sympathy for the applicant in this case. In particular, the fact that he brought his action on for hearing in October 2018 is something that weighs very considerably in his favour when the issue of costs comes to be determined.

23. Taking all of the extraordinary circumstances of the case into account, and in particular, having regard to the fact that these were proceedings which were recognised by the original trial judge as raising issues of very considerable constitutional importance; and as they were proceedings that involved the interests of a vulnerable child who had been in care since a very early stage in his life, the court is satisfied that in the circumstances of this case, the fairest thing to do is to make no order as to costs.

24. Lastly, the court will deal with the application that was made on behalf of the applicant that he should be awarded his costs against the respondent. This was based on two broad grounds: first, that his proceedings involved an application concerning the welfare of his child who was in the care of the respondent at that time; and secondly, that the proceedings had raised issues of constitutional importance.

25. The court accepts that there is case law which supports the proposition that where proceedings are brought in relation to the welfare of a child, it can in certain circumstances be appropriate not to award costs against an unsuccessful applicant who was the parent of the child. This is particularly pertinent where the court is satisfied that the application has been brought by the parent not in pursuit of his or her personal interests, but solely in the interests of the welfare of the child.

26. The court accepts that there is also a line of authority which provides that in cases which involve points of law of exceptional public importance, or at the very least of general importance, and in particular cases which result in a judgment that resolves a constitutional issue; it may be appropriate to award costs to the losing party as against the State or some emanation of the State.

27. In both scenarios put forward by the applicant, the proceedings are litigated to finality. They may result in a judgment that is adverse to the applicant, but the court may be satisfied that the proceedings were necessary to safeguard the welfare of the child, or that they raised and determined issues that were of general public importance, or of constitutional importance. Neither of these scenarios apply in this case because the applicant did not litigate his proceedings to finality. His proceedings were struck out on grounds of delay. No judgment on the merits was given. In these circumstances, there is no basis on which this court could award the applicant his costs against the respondent.

28. The final order of the court will be an order striking out the proceedings against the respondent; with no order as to costs. The court will also vacate any previous costs orders that were made in favour of either of the parties earlier in the proceedings.