High Court allows mother's costs in Special Care proceedings despite legal aid, rejecting prior practice of denying them.

THE HIGH COURT SPECIAL CARE RECORD NO. 2023/353 MCA [2026] IEHC 33

In the matter of:

B

Between:- THE CHILD AND FAMILY AGENCY APPLICANT -AND-

D FIRST NAMED RESPONDENT -AND-

R SECOND NAMED RESPONDENT -AND-

O’C GUARDIAN AD LITEM

JUDGMENT of Mr. Justice Jordan delivered on the 22nd day of January 2026.

1. This judgment relates to an application for costs arising out of Special Care proceedings. The proceedings relate to a Special Care Order which was granted on the application of the Child and Family Agency on 25 October 2023 in respect of B, under s.23 of the Child Care Act 1991 (as amended). The Special Care Order had the effect of committing B to the care of the Child and Family Agency with the direction that the child be detained at Ballydowd Special Care Unit.

2. The Special Care Order in respect of B was subsequently extended by the court in circumstances where it was satisfied that it was in his best interests that he remain in Special Care.

3. On the conclusion of the Special Care proceedings an application was made on behalf of the second respondent and the third respondent (the father and the guardian ad litem respectively) for their costs. The GAL was entitled to costs under s.26 of the Act and was awarded costs. The father was not legally aided and was awarded his costs.

4. The first respondent is the mother of B. She participated in the proceedings but did have the benefit of legal aid. At the conclusion of the proceedings counsel representing the mother applied for costs but did advise the court that the mother was in receipt of legal aid.

5. Up to that point it had been the practice of this Court to decline to award costs to respondents who were in receipt of legal aid as the court took the view that an award of costs in such circumstances was not appropriate or necessary. However, counsel for the mother took issue with this approach and essentially submitted to the court that the fact that the mother was in receipt of legal aid was not relevant insofar as her application for costs was concerned.

6. In the circumstances the court adjourned the issue of costs for determination at a future date and afforded to the Child and Family Agency and the mother's legal team an opportunity to make written submissions. Helpful written submissions have been exchanged and filed by both sides. The court has considered the written submissions and the oral submissions on behalf of the mother and the Child and Family Agency.

7. The case has been joined by a number of subsequent cases where the same issue arises. All interested parties are agreed that this case should proceed first. The court hopes that the final decision in this case will govern the other cases.

8. The Applicant is legally obliged to apply for her costs and, in accordance with s.33(1)-(3), Civil Legal Aid Act 1995 (“the 1995 Act”), the Court should assess the application as it would any other application for costs. The statutory provision provides:

“33. -(1) In this section ‘costs’ includes all outlays including solicitors’ and witnesses’ costs and expenses and barristers’ fees.

-(2) A court or tribunal shall make an order for costs in a matter in which any of the parties is in receipt of legal aid in like manner and to the like effect as the court or tribunal would otherwise make if no party was in receipt of legal aid and all parties had respectively obtained the services of a solicitor or barrister or both, as appropriate, at their own expense.

-(3) Subject to subsection (8), an applicant for legal aid or advice shall take all possible steps to ensure that any right he or she possesses to be indemnified either in whole or in part in respect of expenses which would, but for this Act, be required to be incurred by him or her in the matter, will, in respect of expenses incurred by the Board on his or her behalf in the matter and not yet reimbursed to the Board, inure for the benefit of the Fund.”

9. In the Court of Appeal judgment in Child and Family Agency v A. (A Minor Represented by Order of his Solicitor and Next Friend Gina Cleary) and C [2020] IECA 52 (“CFA v A”), the court held that when adjudicating upon an application for costs made by an individual in receipt of legal aid, the Court is not permitted to determine the application on the basis that one state agency will be reimbursing another. As stated by Ms. Justice Whelan at paragraph 14 of that decision:- “… there is no identifiable basis for applying any kind of ‘bright line’ rule to the approach as to costs in cases involving the CFA. Had it been the intention of the legislature that special criteria or factors ought to be taken into account in circumstances where costs are sought against the CFA, or in circumstances where there is a dispute between two State agencies regarding liability for costs, which would warrant a deviation from the normal principles and rules as to costs and the normal parameters governing the exercise of its discretion by the court, the same ought to have been addressed in the relevant statutory scheme…”

10. The A case was a very different case to this - but it is a persuasive authority in so far as the issue in this case is concerned.

11. The mother's legal submissions also refer to the decision of O’Malley J in Health Service Executive v AO [2013] 3 IR 287. That was a case which concerned the right of an individual litigant who was not legally aided and who had not applied for legal aid to be treated in the same way as any other litigant who was not in receipt of legal aid in so far as her costs application was concerned.

12. At para. 69 of her judgment O’Malley J made the point that eligibility for legal aid is not a matter that is to factor into the court’s adjudication process; – “I conclude that the mother was entitled to choose her own representative, that she was not in any way obliged to apply for legal aid and that her eligibility for legal aid, whether established or presumed, has no bearing on her entitlement to apply for her costs.”

13. Reference has been made to the judgment of MacMenamin J in the Supreme Court Decision in Child and Family Agency v OA [2015] 2 IR 718. It is correct that Whelan J characterised that case at para. 22 of the Court of Appeal judgment in CFA v A [2020] IECA 52 as being: – “… a judgment in relation to the issue of costs and the principles and criteria applicable to determining costs applications in district court child care proceedings…”

14. At para. 49 of his judgment in CFA v OA MacMenamin J stated: – “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 Child and Family Agency 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.” While there referring to the then Inherent Jurisdiction, which accommodated children requiring special care, the view expressed is pertinent to cases falling under the later statutory Special Care Scheme, as this one does. And MacMenamin J is simply making the point that he is setting out general principles for District Court proceedings - which should ensure the interests of the child and the interests of justice.

15. Here the mother was entitled to expert legal advice and representation in what was for her participation in complex Special Care Proceedings in the High Court. The court must adjudicate on her application for costs in the same way as it would do in respect of a parent applying for costs who did not have the benefit of legal aid.

16. The applicant for costs also relies on the child’s constitutional rights in support of the application.

17. It is submitted that, in childcare proceedings, particularly Special Care Proceedings, where a child’s liberty is at stake, a number of the child’s constitutional rights are engaged and must be protected. Among these are, first, a child's right to have decisions made with his or her welfare as a paramount consideration; second, the rights of the parent(s), (constitutionally recognised as the natural custodian(s) of children), and of children themselves, to be properly represented in proceedings where the outcome can be life altering. The vindication of B’s constitutionally protected rights necessitated that his mother and Guardian ad Litem be joined as respondents to these proceedings, a step that the Child and Family Agency took. B was entitled to have his mother's views heard on all issues that touched and concerned his constitutionally protected rights, welfare and best interests. Furthermore, the First Respondent was entitled to exercise her parental rights, as she did, to have the court appraised of her views concerning her child's welfare. The First Respondent’s engagement in the proceedings has been and continues to be a vindication of her constitutionally protected rights as B’s parent.

18. The constitutional rights affected were referenced in the Court of Appeal

decision in CFA v A where Whelan J held at paras. 30– 31, inter-alia: – “…A. [the child] was entitled to have his mother’s views heard on an issue that touched and concerned his constitutionally protected rights, his welfare and interests. C. [the mother] was entitled to exercise her parental rights as she did to have the court appraised of her views concerning her child’s welfare. Her engagement in the litigation was, on the evidence, a practical vindication of her constitutionally protected rights as parent and guardian of A.

…C. [the mother] had a clearly recognised constitutional right to be engaged in litigation in circumstances where at the date of the institution of the proceedings her child A. was a minor. She actively engaged with the proceedings and put before the Court comprehensive submissions directed to the child’s welfare…” The mother’s submissions in relation to the vindication of the constitutional rights at play are valid and support the mother’s right to apply for costs and to be granted costs.

19. In opposing the mother's application for costs the Child and Family Agency submit that the general principles applicable to an award of costs and the provisions of the Civil Legal Aid Act, although important, must be viewed in the context of the specific statutory scheme in respect of special care applications. In this regard, the Child and Family Agency makes the following submissions: – “3. “Although Sections 25 and 26 of the Childcare Act 1991 had been amended on several occasions, the manner in which the issue of the joinder of parties to the proceedings and the manner in which costs should be dealt with have not been altered in any substantive way. Section 25 provides that in proceedings covered by that section that a child to whom the proceedings relate, if not already a party, may be joined as a party if it is in the interests of justice and of the child to do so. The child in those circumstances does not require the intervention of a next friend.

4. The Court may appoint a solicitor and give directions to the solicitor as to the performance of his duties in the context of representing the child. Such directions may also be given if the child is already a party to the proceedings.

5. Section 25 (4) provides:

"Where a solicitor is appointed under subsection (2) the costs and expenses incurred on behalf of a child exercising any rights of a party in any proceedings under this Act shall be paid by the Child and Family Agency ..."

6. Section 25, although not invoked in the present application, is of consequence in the context of the overall interpretation of the section. When a court has made an order under subsection (2) appointing a solicitor, the Court may on the application of the Child and Family Agency, order any other party to the proceedings to pay to the Agency any costs or expenses payable by the Agency to the solicitor under Section 25 (4).

7. Section 26 provides for a similar circumstance where a child is not a party to the proceedings but the Court is satisfied that it is necessary in the interests of the child and in the interests of justice to appoint a Guardian ad litem for the child. Section 26 (2) provides that any costs incurred by a person in acting as a Guardian ad litem shall be paid by the Child and Family Agency and the Agency may apply to have the amount of any such costs or expenses measured or taxed or adjudicated.

8. Section 26 (3) is similar to Section 25 (4) and the Court which has made the order may, on the application of the Agency, direct any other party to the proceedings to pay to the Agency any costs or expenses payable by the Agency under subsection (2).

9. A consideration of Sections 25 and 26 gives rise to the following observations:

i. Section 25 and in turn Section 26 makes specific provision for the payment by the Child and Family Agency of any costs or expenses incurred by the child or the Guardian ad litem to be adjudicated in default of agreement. The Court has no discretion.

ii. Part IV A was inserted in the Childcare Act by the Children Act 2001 and there have been a variety of amendments made since that time. In terms of the amendments of the legislation, what is of importance is that Section 23G was inserted subsequent to Sections 25 and 26 being on the statute book. The relevance of this is that any difference in treatment of similar issues is not in those circumstances to be regarded as incidental but rather as an intention on the part of the Oireachtas to provide differently for such a scenario, as reflected in the new provision: Generalias specialibus non derogant.

10. Section 23G states that an application for a special care order (or an interim special care order) shall be made "on notice to":

i. A parent having custody of the child unless the parent is dead, missing or cannot be found (no alternative service is indicated in one of the latter scenarios), ii. A guardian of the child, if any, or a person, if any, acting in loco parentis unless that guardian or that person is dead, missing or cannot be found (again, there is no alternative service directed in any of the latter scenarios).

iii. A guardian ad litem where such guardian is appointed in accordance with Section 26 (as amended by the Childcare (Amendment) Act 2011) in respect of proceedings under this part and whose appointment has effect in accordance with Section 26 (4). (Here the costs of the guardian ad litem are clearly already catered for by the terms of Section 26)……

12. What follows from a consideration of this section is:

i. Categories of persons identified in subsection (1) (a) and (b)

are not made parties to the proceedings. In contrast to what is provided for in Sections 25 and 26, the Oireachtas is drawing a distinction between the joinder of a child as a party to the proceedings or the appointment of a Guardian ad litem to the proceedings, and merely directing that an application for a special care order be made on notice to a parent or a guardian unless same are dead, missing or cannot be found.

ii. Where a parent is put on notice of proceedings pursuant to the provisions of Section 23 (G), it is clear that this section makes no specific provision in respect of costs. This again, as a matter of statutory construction, cannot be viewed as merely incidental or a legislative omission which needs to be remedied by the Court. Rather it reflects a legislative intention that a parent or guardian, given notice pursuant to the provisions of Section 23G, is not thereby made a party to the proceedings and is not thereby made subject to the beneficial costs regime which a child or a Guardian ad litem is subject to.”

20. Insofar as these submissions are concerned, the point made concerning an intention on the part of the Oireachtas to provide differently for the costs incurred by the child or the guardian ad litem as opposed to other parties is valid in the sense that the legislation does just that. However, this does not mean that they are the only parties who should be entitled to their costs. It does not remove the discretion which the court has to award costs to another party in the proceedings

– the mother in this instance.

21. Significant emphasis is placed by the Child and Family Agency on the fact of the participation by the mother in these proceedings arising because s.23(G) required that she be put on notice of the proceedings. The submission that the mother was not made a party to the proceedings in circumstances where she was given “notice” pursuant to s.23(G) is not correct. The truth of the matter is that the mother was expected to and did participate in the proceedings from the outset – as a party to the proceedings. Such participation was in the interests of the child's welfare. Such participation was logical and appropriate as she is the child’s mother. Furthermore, any suggestion by the Child and Family Agency that the mother was simply “a notice party” is at odds with the Child and Family Agency's approach to her position when issuing the proceedings. From the outset the mother has been named as the first named respondent in these proceedings and she engaged fully as such in the proceedings.

22. The Child and Family Agency submits that the mother has failed to establish “an entitlement to costs”. In this regard, the court is satisfied that the mother does have a right to apply for her costs of participating in these proceedings and is entitled to have her application for costs adjudicated on by the court without regard to the fact that she has legal aid.

23. When one removes from the equation the fact that the mother has had the benefit of legal aid, the mother's position insofar as her application for costs is concerned is similar to the application for costs made by the father – and an order for costs was made in his favour.

24. The Legal Services Regulation Act of 2015 does preserve the general principle that costs follow the event. However, Special Care proceedings are not marked by an event or events in the same way that most civil litigation is.

25. MacMenamin J commented on this in the OA judgment where, at paragraph 39, he stated: – “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.”

26. The absence of any clear event, or indeed any “successful party”, does not preclude the court from making an order for costs in favour of one party against another. In the case of Re TH [2020] IEHC 487, in the context of an application for costs following a wardship enquiry, Hyland J stated, at paragraph 42; – “An argument has been made by the general solicitor that, because what is being directed is an enquiry, rather than traditional adversarial litigation, that the notion of success or an event is inappropriate. Whether or not this is the case will depend on the circumstances. The breadth of the wording of section

168 and 169 [of the Legal Services Regulation Act 2015] and the discretion given to a court under Order 99 mean that a court can always make costs orders on a basis other than the success of a given party…”. That case was very different on it’s facts. However, the above view is germane in these Special Care proceedings and is one with which this Court agrees.

27. It is not necessary to dwell on the distinction between Special Care proceedings and other cases in which an application for costs would be made and determined. Albeit that the litigation is conducted as adversarial litigation, it is the position that Special Care proceedings have at their core a common interest – the welfare of the child – and the court has an inquisitorial role. It is also the position that the parties generally endeavour to work collaboratively [the “kind hands – kind words” approach] as such an approach in the proceedings is generally acknowledged to be in the interests of the welfare of the child. Costs awards in Special Care proceedings nonetheless remain as in other proceedings and a party is entitled to apply for costs - and with special provision made in ss. 25 and 26 in respect of the costs of a child who is involved in the proceedings and the costs of a guardian ad litem.

28. Ultimately, insofar as the application for costs before the court is concerned, the court is satisfied that the mother has a right to seek an order for costs - and to have her application for costs adjudicated upon similarly to any other litigant and as if she were not in receipt of legal aid.

29. There have been occasional cases in the Special Care List where parents although joined as respondents have failed to participate fully, or at all. In some cases they simply do not engage and an application for costs does not arise because they are not present and are never represented at the hearings. In other cases they instruct solicitors initially and then fail to give instructions to their solicitors and/or cannot be contacted by their solicitors. In the latter scenario the solicitors on record have come off record when the court has pointed out that presence without any instructions or contact is pointless – and in circumstances where the solicitors can come back on record and represent the parent concerned if contact occurs and instructions are received.

30. In this instance the mother participated appropriately and responsibly and helpfully throughout the proceedings. Her conduct before and during the proceedings was properly concerned with the important issue of the welfare of her son. Her approach throughout was considered and reasonable. Her participation was of assistance to the court and benefited her son.

31. In the circumstances of this case the court is satisfied that the mother is entitled to her costs of the proceedings. The court will make an order granting the mother her costs of the proceedings (including any reserved costs) to be adjudicated in default of agreement.

32. In its legal submissions the Child and Family Agency submitted that should the court accept that costs should be awarded then any award of costs should be limited to fees and outlays incurred only as a result of these proceedings and in accordance with the Legal Aid Board schedule of fees. The court is not making such an order so limiting the fees. The level of fees to be paid will be determined by the Legal Costs Adjudicator in default of agreement between the parties.

33. The court will list this case for mention on Monday 26 January 2026 in the Special Care List to deal with any application arising.