High Court dismisses costs claim in child relocation case where outcome was welfare-based, not binary win/lose.

THE HIGH COURT

[2026] IEHC 43 [2025 21 CAT]

IN THE MATTER OF THE LEGAL SERVICES REGULATION ACT 2015

Between:

D

Appellant

– and –

D

Respondent

JUDGMENT of Mr Justice Max Barrett delivered on 23rd January 2026. Summary In this judgement I explain why I will make no order as to costs.

1. This is an application for costs following on my decision in the substantive case. In summary, that was a relocation application in which I considered that it was in the best interests of the children to remain in the West at this time (Dad’s preferred option) and not to move with Ms D to Dublin at this time (Ms D’s preferred option).

2. Mr D now comes to court and contends that (i) these are civil proceedings, (ii) what was before me was a binary choice (should the children stay or go?), (iii) he was entirely successful in resisting Ms D’s application, and (iv) consistent with s.169 of the Legal Services Regulation Act 2015 he is entitled to an award of costs.

3. There was dispute as to whether the application was properly to be characterised as binary. I set out in Table 1 five reasons why one might legitimately view the application on which I adjudicated as a binary matter and five reasons why one might legitimately not do so.

Table 1: Whether the Relocation Application Should Legitimately Be Viewed as Binary

FACTORS SUPPORTING A BINARY FACTORS AGAINST A BINARY CHARACTERISATION CHARACTERISATION

The application formally sought permission The court’s statutory task was to determine to relocate or, alternatively, refusal of that the children’s best interests through a holistic permission. welfare assessment.

The parties advanced mutually exclusive The decision was a time-specific evaluation preferred outcomes. rather than a final determination for all time;

it is conceivable that a further relocation application might be made at some future time.

The court ultimately selected one of the two The court considered and evaluated a range outcomes favoured by the parties. of potential arrangements beyond the stark alternatives proposed.

The proceedings were conducted as a single The issues required the court to balance relocation application. competing welfare advantages and disadvantages rather than to accept or reject a single factual proposition.

The outcome could be summarised in simple The judgment was framed in terms of child terms as the refusal of the proposed welfare rather than party success or failure. relocation.

4. Having regard to the factors set out above, I am satisfied that the application I adjudicated upon was not a straightforward binary dispute for the purposes of costs. Three considerations are determinative in this regard:

• The nature of the function discharged by me was evaluative rather than determinative.

I was not required to determine the truth or correctness of a single proposition advanced by one party and denied by the other. Rather, I was required to undertake a nuanced evaluative exercise directed to the children’s welfare, involving the balancing of multiple competing considerations. Such an exercise is not properly characterised as a binary contest for costs purposes.

• The outcome reflected a time-specific judgment, not final success or failure.

The conclusion I reached – that it is in the children’s best interests to remain in the West at this time is contingent on present circumstances and does not foreclose the possibility of relocation in the future. That qualification is inconsistent with the notion that one party achieved complete or final success in a binary sense.

• The proceedings I adjudicated upon cannot fairly be characterised as producing a single ‘successful party’.

Although the order ultimately made coincided with Mr D’s preferred outcome, that coincidence does not equate to overall success in the litigation.

I was required to determine what arrangement best promoted the children’s welfare, not to adjudicate between competing rights or claims. The outcome was the product of my own evaluative judgment rather than the vindication of either party’s case. In those circumstances, treating the proceedings as a binary contest with a clear winner for the purposes of costs would mischaracterise both the nature of the decision-making exercise and the role of the parties within it.

5. The statutory starting-point when it comes to deciding this costs application is s.169(1)

of the Legal Services Regulation Act 2015. That provision commences as follows:

“[1] A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, [2] unless the court orders otherwise, having regard to

[a] the particular nature and circumstances of the case, and [b] the conduct of the proceedings by the parties, including [certain listed behavioural matters]”.

6. The concept of a party being “entirely successful” in civil proceedings presupposes an adjudicative exercise in which the court is asked to determine competing claims or rights, rather than to discharge a ‘best interests’ evaluation.

7. Section 169(1) poses a sequence of interlinked questions. The first is whether there is a party who was “entirely successful” in the civil proceedings. Only if that threshold is met does the statutory entitlement to costs arise under s.169.

8. I am not satisfied that Mr D can properly be characterised as having been “entirely successful” within the meaning of s.169(1). As already explained, the relocation application was not a straightforward binary dispute in which I was required to accept one party’s case and reject the other’s. Rather, it involved the discharge of a statutory, evaluative function directed to the children’s welfare, culminating in a time-specific assessment of their best interests at this time. Those factors in mind, it follows that although the ultimate order coincided with Mr D’s preferred outcome, that coincidence does not amount to being “entirely successful” in the statutory sense.

9. The second implicit question arising under s.169(1) is whether the proceedings produced a clear distinction between a successful and an unsuccessful party. In my view, they did not. The decision reached was not the vindication of Mr D’s case nor the rejection of Ms D’s, but the product of my own evaluative judgment. In circumstances where I was not determining competing rights or claims, but rather selecting the arrangement it considered to best promote the children’s welfare at this time, it would be artificial to characterise one party as successful and the other as unsuccessful for the purposes of costs.

10. Accordingly, the statutory starting point relied upon by Mr D does not arise. The precondition for an entitlement to costs under s.169(1) has not been established. The application therefore falls to be determined on the basis that there is a party who was “entirely successful” in the proceedings. If I were wrong in that conclusion, I would in any event exercise my discretion to make no order as to costs for the reasons set out below.

11. Even where no party can be characterised as entirely successful for the purposes of s.169, the court’s discretion as to costs remains structured and principled. The rules applicable to the ordering of costs in family law proceedings have latterly been the subject of the Court of Appeal’s helpful judgment in D.K. v. P.I.K. [2023] IECA 7. At paras. 15-21 of her judgment in that case, Whelan J. identifies the following principles:

Applicable principles

• Costs in family law are not compensatory for wrongdoing but must be assessed by reference to the interests of both parties. [para.15]

• Family law proceedings involve a shared pool of assets from which both future provision and legal costs must be met. [para.15]

• Because costs reduce shared family resources, the ordinary rule that costs follow the event does not automatically apply. [para.15]

• The court must consider the practical effect of a costs order on each party, not merely the outcome of the application. [para.15]

• Where substantive family proceedings remain ongoing, costs arising from interlocutory applications must be assessed in that wider procedural context. [para.16]

• An adverse costs order may impair a party’s ability to participate effectively in ongoing or remitted proceedings. [para.16]

• Costs orders in family law may therefore have a chilling or prejudicial effect on access to justice. [para.16]

• Matrimonial litigation frequently justifies departure from the rule that costs follow the event. [para.17]

• Courts must be alert to risks of injustice or inequity when awarding costs in family law cases. [para.18]

• Particular caution is required in respect of interlocutory or interim applications. [para.18]

• A holistic evaluation of all relevant circumstances is required. [para.18]

• Supreme Court jurisprudence establishes a normative position that no order as to costs is generally appropriate in family law. [para.18]

• The award of costs is a discretionary decision, and appellate courts will rarely interfere with its exercise. [para.19]

• Family law proceedings are not properly conceptualised as win/lose litigation. [para.20]

• The exercise of discretion on costs should be informed by justice, equity, compassion, and (where relevant) children’s welfare. [para.20]

• The Veolia principles may be applied, especially where there is clear misconduct or unmeritorious litigation conduct. [para.21]

• In the absence of such conduct, the default family-law approach to costs applies. [para.21]

12. Is it possible to reduce those observations to five key questions that can be brought to bear in an application such as that now presenting? I identify five such questions below:

1. How would a costs order affect the shared family asset pool and each party’s ability to secure future provision?

2. Would ordering costs prejudice either party’s ability to participate fairly in ongoing or future proceedings, including interlocutory stages?

3. Is this litigation properly characterised as ‘win/lose’, or does justice require departure from the rule that costs follow the event?

4. Are there factors such as misconduct, unmeritorious litigation, or inequitable conduct that justify departing from the default position of no order as to costs?

5. Taking a holistic view, does justice, equity, compassion, and (where relevant) children’s welfare support making a costs order at all?

13. Applied to the present case, those questions point strongly to the appropriateness of making no order as to costs in this case.

14. I turn now to answer those questions by reference to the facts at hand:

1. Q. How would a costs order affect the shared family asset pool and each party’s ability to secure future provision?

A. As this was a family law relocation application concerning the welfare of children, any diversion of resources to satisfy a costs award would ultimately affect both parties rather than operate as compensation for wrongdoing. In circumstances where no party can properly be said to have achieved complete success, such an outcome would be inconsistent with the underlying rationale governing costs in family proceedings.

2. Q. Would ordering costs prejudice either party’s ability to participate fairly in ongoing or future proceedings, including interlocutory stages?

A. Yes. Family law proceedings are often iterative and adverse costs orders may impair a party’s (here, in particular, Ms D’s) capacity to engage meaningfully in future litigation, including any renewed or interlocutory applications. Given that the relocation decision is time-specific and does not preclude future applications, an award of costs at this stage could unfairly prejudice Ms D’s ability to participate in later proceedings concerning the children’s welfare.

3. Q. Is this litigation properly characterised as ‘win/lose’, or does justice require departure from the rule that costs follow the event?

A. No. Although the ultimate order coincided with Mr D’s preferred outcome, the proceedings were not adjudicated on a ‘win/lose’ basis in any meaningful sense relevant to costs. I was not engaged in determining the validity of competing claims or the correctness of one party’s case as against the other.

Rather, I was required to discharge a statutory, child-centred evaluative function, involving the weighing of multiple welfare considerations and the selection of the arrangement that is in the children’s best interests at this time.

In that context, the outcome represents my judgment as to welfare, not the vindication of one party’s position or the rejection of the other’s. To characterise such proceedings as producing a winner and a loser for the purposes of costs would be to impose an adversarial framework on a decisionmaking exercise that is inherently non-adversarial in nature. Justice therefore requires a departure from the rule that costs follow the event.

4. Q. Are there factors such as misconduct, unmeritorious litigation, or inequitable conduct that justify departing from the default position of no order as to costs?

A. No such factors were identified. The proceedings were properly brought, responsibly conducted, and required me to engage in a nuanced welfare analysis. There was no finding of misconduct, tactical abuse, or unreasonable behaviour on the part of either party that would justify invoking exceptionbased principles to displace the default family-law approach to costs. Counsel for Mr D pointed to the fact that some issues raised by Ms D were unsupported by evidence. While that is so, it does not justify making an order as to costs.

That is just part of the process of arriving at a decision as to what is in the best interests of children by reference to all the points that a parent has, in good faith, identified as seeming to them to be relevant to an application made.

5. Q. Taking a holistic view, does justice, equity, compassion, and (where relevant) children’s welfare support making a costs order at all?

A. Taking all of these matters together (the absence of a clearly successful party, the ‘best interests’-driven and time-specific nature of the decision, the lack of misconduct, and the potential prejudice to future participation) I am satisfied that justice, equity, compassion, and the welfare of the children all militate against my making any order as to costs.

15. It follows that I will make no order as to costs.