High Court allows protective costs order for Guardian Ad Litem against Child and Family Agency.

APPROVED [2026] IEHC 88

THE HIGH COURT

JUDICIAL REVIEW

2025 1899 JR

BETWEEN

CHILD AND FAMILY AGENCY

APPLICANT

AND

GUARDIAN AD LITEM

RESPONDENT

MOTHER OF THE CHILD

NOTICE PARTY

JUDGMENT of Mr. Justice Garrett Simons delivered on 25 February 2026

INTRODUCTION

1. This judgment is delivered in respect of an application for a protective costs order. The underlying judicial review proceedings seek to set aside two orders of the District Court made in child care proceedings. The applicant for judicial review is the Child and Family Agency. The District Court judge who made the impugned orders has not been joined to the proceedings. This reflects the NO FURTHER REDACTION REQUIRED requirement under Order 84, rule 22(2A) of the Rules of the Superior Courts that a judge not normally be joined as a party to judicial review proceedings.

2. The guardian ad litem, who had been appointed by the District Court in the context of the child care proceedings, has been named as the sole respondent to the judicial review proceedings. The child’s mother has been joined as a notice party.

3. The guardian ad litem seeks an order to the effect that—irrespective of the ultimate outcome of the judicial review proceedings—no order for costs should be made against her. This is the extent of the relief which the guardian ad litem seeks at this time. She does not seek, for example, a pre-emptive costs order providing that she should be entitled to recover her costs against the Child and Family Agency.

4. The initial stance adopted by the Child and Family Agency had been to decline to provide any comfort in relation to costs. The Agency’s position evolved incrementally over the course of the hearing on the protective costs application. The opening gambit was an offer not to seek costs against the guardian ad litem on the condition that she similarly agreed not to seek costs against the Agency. This offer was soon followed by a revised offer not to seek costs against the guardian ad litem on the condition that she did not seek to have her costs paid by the Agency pursuant to section 26 of the Child Care Act 1991. (This legislative provision stipulates that any costs incurred by a person in acting as a guardian ad litem under the section shall be paid by the Agency). This revised offer left open the possibility that the guardian ad litem might apply for costs under the Legal Services Regulation Act 2015.

5. The Child and Family Agency has, in effect, sought to leverage a position whereby the guardian ad litem—as a quid pro quo for limited costs protection— must abandon any argument that her statutory right to recover costs against the Agency in respect of child care proceedings before the District Court extends to High Court judicial review proceedings in respect of the child care proceedings.

NOMENCLATURE

6. The term “protective costs order” will be used throughout this judgment as an umbrella term to describe an order which decides the incidence of future costs prior to the determination of the relevant “event” for costs purposes.

7. The term “pre-emptive costs order” will be used to describe that subset of protective costs orders which go further than merely providing a shield against an adverse costs order and, instead, direct that the party is to recover their costs (in whole or in part) irrespective of the ultimate outcome of the proceedings.

PROCEDURAL HISTORY

8. The judicial review proceedings seek to challenge two orders made by the District Court in respect of a fifteen-year old child. The child will be referred to throughout this judgment as “the child” to protect his privacy.

9. A social worker, H.T., has been appointed as guardian ad litem for the child. The appointment was made by the District Court pursuant to section 26 of the Child Care Act 1991. The initial appointment was made in September 2023. It seems that the child has been the subject of a series of interim care orders since November 2023.

10. H.T. was appointed by the High Court to act as guardian ad litem in subsequent special care order proceedings. The High Court granted a special care order in April 2024. The special care order expired (without a further application from the Agency) in April 2025.

11. The child had been in a residential placement between March 2025 and June 2025. Since that date he has been staying with his mother (albeit still under the care of the Child and Family Agency). It seems that this had been envisaged as a temporary measure pending the preparation of a (second) special care order application.

12. On the application of the guardian ad litem, the District Court made an order pursuant to section 47 of the Child Care Act 1991 as follows: “That, in the furtherance of the subject child’s best welfare interests and in light of his unmanageable risk profile, breakdown of his safety plan and his inappropriate placement back with his mother, the Child and Family Agency are directed to immediately prepare and submit a formal special care referral to the Child and Family Agency’s ad hoc Special Care Referrals’ Committee.”

13. The order is dated 14 November 2025. The District Court made another order in similar terms on 9 December 2025.

14. The Child and Family Agency commenced the within judicial review proceedings seeking to set aside the two orders. The guardian ad litem is the sole respondent to the proceedings. The High Court (Gearty J.) granted leave to apply for judicial review on 18 December 2025.

15. Following an exchange of correspondence between the parties, the guardian ad litem filed a motion on 16 January 2026 seeking a protective costs order. The motion came on for hearing on 11 February 2026 and judgment was reserved.

16. The parties had been directed, pursuant to Order 99, rule 7 of the Rules of the Superior Courts to exchange costs estimates for the substantive judicial review. The guardian ad litem’s side estimated her costs in the amount of €63,000 (plus VAT). The Child and Family Agency confirmed that, in the event that a costs order were to be made in its favour at the conclusion of the proceedings, the maximum amount which the Agency would seek to recover as against the guardian ad litem would be €25,000 (plus VAT).

ROLE OF GUARDIAN AD LITEM

17. The role of a guardian ad litem has been described as follows by the High Court (MacMenamin J.) in Health Service Executive v. D.K. [2007] IEHC 488 (at paragraph 59): “(b) The function of the guardian should be twofold; firstly to place the views of the child before the court, and secondly to give the guardian’s views as to what is in the best interests of the child.

(c) A guardian ad litem should bring to the attention of the

Health Service Executive any risks which he or she believes

may adversely affect the best interests of the child, and if not

satisfied with the response may bring the matter to the

attention of the court. The guardian ad litem should take

steps where necessary to co-operate with, and where possible

share relevant information with, other care professionals

engaged with the minor.

(d) A duty of a guardian ad litem is to ensure compliance with

the constitutional rights of a minor. For this purpose, the

guardian should ensure that there is provided to the minor a

means of making his or her views known.

(e) A guardian ad litem may fulfil the dual function of reporting to the court regarding the child’s care and also by acting as the child’s representative in any court proceedings and thereby communicating to the court the child’s views.”

18. It should be explained that this description was provided in the context of “secure care proceedings” pursuant to the court’s inherent jurisdiction, i.e. prior to the entry into force of Part IVA of the Child Care Act 1991.

19. The extent to which these principles might apply in the specific context of a guardian ad litem appointed by the District Court pursuant to section 26 of the Child Care Act 1991 has been considered by the High Court (Baker J.) in A.O’D. v. Judge O’Leary [2016] IEHC 555. The court held that the function of the guardian ad litem is to represent the child in the litigation, and to promote the interests of the child and the interests of justice. It was further held that the guardian ad litem should take a role consistent with the furtherance of the interests of justice and not merely participate as a witness.

20. Section 26(2) of the Child Care Act 1991 provides that any costs incurred by a person in acting as a guardian ad litem under the section shall be paid by the Child and Family Agency.

JUDICIAL REVIEW PROCEEDINGS: ASSESSMENT OF MERITS

21. As explained at paragraphs 62 to 64 below, it is necessary, in the exercise of the court’s discretion to make a protective costs order, to make some assessment of the strength of the case. It is convenient to address this now.

22. The gravamen of the Child and Family Agency’s claim in the judicial review proceedings is that the District Court has no function in the making of an application for a special care order under Part IVA of the Child Care Act 1991. The entitlement of the Child and Family Agency to apply to the High Court for a special care order is said to be a separate and distinct statutory jurisdiction which cannot be exercised or directed by the District Court. On this analysis, the District Court erred in even seeking to direct the Agency to consider invoking the special care order procedure.

23. Section 47 of the Child Care Act 1991 provides as follows:

“Where a child is in the care of the Child and Family Agency,

other than special care under Part IVA, the District Court

may, of its own motion or on the application of any person,

give such directions and make such order on any question

affecting the welfare of the child as it thinks proper and may

vary or discharge any such direction or order.”

24. Counsel for the guardian ad litem submits that section 47 is an all embracing and wide ranging provision, is couched in the widest possible terms, and that a restrictive interpretation of the extent of that power is not justified by reference to the scheme of the legislation. It is further submitted that there is no qualification on the statutory power, and that the section empowers the District Court to make directions and to do whatever it deems appropriate to achieve the policy of the Act as a whole. The judgments in V.Q. v. Judge Horgan [2016] IEHC 631 and Child and Family Agency v. M.D. [2019] IEHC 397 are cited in support of these propositions.

25. Having reviewed the case law, Baker J. stated as follows in V.Q. v. Judge Horgan (at paragraph 39):

“[…] The case law has emphasised the far reaching and wide

jurisdiction under s. 47, by which is vested in the District

Court the power to make all decisions relating to the care and

welfare of a child, subject only to the proviso that the court

ought not interfere unless matters arise which require

consideration of the welfare or interests of the child. The

court will not generally make orders more properly

characterised as day to day matters and thus cannot be said

to exercise a role by which it interferes with reasonable and

prudent decisions made by the CFA or the foster parents. The

decision of the court may be required in matters where there

is disagreement as to whether a particular course of action is

in the interest of a child, or where the issue is one where it is difficult to assess where the bests interest of a child might lie.”

26. I am satisfied that there is a respectable argument to be made that the District Court orders are valid. It seems to me that counsel on behalf of the guardian ad litem is correct in contending that the power under section 47 is very broadly drawn. Here, the District Court has sought to have the Child and Family Agency consider whether to seek a special care order in relation to the child. The impugned orders are certainly close to the outer limits of the District Court’s powers. For present purposes, it is not necessary to decide which side of the line the orders fall on. Rather, it is sufficient to say that a respectable argument can be made that the wording of the orders properly observes the autonomy of the Agency while communicating the well founded concerns of the District Court as to the risks which the child faces. The evidence indicates that the child has become involved with drug dealers and that specific threats had been made against him over an alleged debt.

27. There is a bona fide dispute as to what measures are necessary for the child’s protection. The guardian ad litem takes the view that matters should be progressed towards the consideration of the making of a special care order. It will be recalled that such an order has been made in relation to the child previously. The Child and Family Agency takes a different view and seeks to jealously guard the procedures which it adopts prior to the making of a decision to make an application in respect of a special care order.

28. It does seem that, as a matter of practice, the Child and Family Agency approaches its decision-making in relation to special care orders in a particular sequence. (See, for example, J.T. v. Child and Family Agency [2025] IECA 189). For example, it seems that the family conference and the notification requirements are only dealt with at a particular point. However, this sequencing is not expressly provided for under the Child Care Act 1991. Indeed, the committee to which the referral is to be made is an ad hoc committee and does not have any statutory standing. It seems to me, therefore, that there is legitimate room for disagreement in relation to these matters.

29. Put otherwise, the Child and Family Agency’s case for judicial review is not so obviously correct that it is unreasonable for the guardian ad litem to propose to oppose the application for judicial review. The proceedings give rise to a point of law of general public importance, the answer to which is not clear-cut. This is an issue which transcends the facts of the present case as the point of law is relevant to other child care proceedings. There is a public interest that this point of law be resolved and this is best done if the court is assisted by submissions on both sides of the argument.

JURISDICTION TO MAKE A PROTECTIVE COSTS ORDER

30. The parties each relied upon the following two judgments as the leading authorities on the jurisdiction of a court to make a protective costs order: Village Residents Association Ltd v. An Bord Pleanála [2000] 4 IR 321 and Friends of the Curragh Environment Ltd v. An Bord Pleanála [2006] IEHC 243, [2009] 4 IR 451. The principal criteria relevant to the making of a protective costs order were summarised as follows: (i) the issues raised in the underlying proceedings were of general public importance; (ii) the public interest required that those issues should be resolved; (iii) the applicant had no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent and to the amount of costs that were likely to be involved, it was fair and just to make the order; and (v) if the order was not made the applicant would probably discontinue the proceedings and would be acting reasonably in so doing.

31. The judgments were both decided prior to the enactment of the Legal Services Regulation Act 2015. Crucially, the legal basis for a protective costs order is now statutory rather than common law. The judgments are of assistance only to the extent that they identify the type of criteria which might be relevant to the exercise of the court’s discretion to make a protective costs order.

32. The judgment of more immediate relevance is that of the Supreme Court in Little v. Chief Appeals Officer [2024] IESC 53. The following three aspects of the judgment are germane.

33. First, the judgment identifies the source of the power to award costs as sections 168 and 169 of the Legal Services Regulation Act 2015. Murray J., writing for a unanimous court, explained the position as follows (at paragraph 38):

“While it might be argued that s. 168(1) assumes a pre-

existing power of the courts over costs, and that the purpose

of it and the immediately succeeding section is to describe

and condition that power, I am of the view that these

provisions are best viewed as both regulating and conferring

a cost awarding power. […]”.

34. Second, the judgment emphasises that the default position is that the successful party is entitled to recover their costs against the unsuccessful party. This is sometimes described as costs following the event.

35. Third, the judgment recognises that the traditional rationale for awarding costs in favour of the successful party must be balanced against the supervening objective of ensuring that individuals are not deterred by the risk of exposure to legal costs from pursuing litigation of a type which—although ultimately unsuccessful—nonetheless serves an identified public interest.

36. The making of a protective costs order involves a significant departure from the default position in respect of costs. This is because a protective costs order, by definition, necessitates determining the incidence of costs in advance of the outcome of the relevant “event”. The court will not know at the time of the making of the protective costs order which side will ultimately be successful in the proceedings. The making of a protective costs order thus has the potential to result in the successful party not recovering their costs.

37. The threshold question to be addressed is whether the wording of the Legal Services Regulation Act 2015 and the nature of the discretion conferred is broad enough to accommodate a protective costs order.

38. On a textual analysis, the wording of section 168 of the LSRA 2015 does appear to allow for a protective costs order. The section, in relevant part, provides that a court may, on application by a party to civil proceedings, at any stage in, and from time to time during, those proceedings order that a party to the proceedings pay the costs of or incidental to the proceedings of one or more other parties to the proceedings. This wording—in particular, the phrase “at any stage in”—is broad enough not only to allow the court to make interim costs orders, i.e. prior to the final determination of the overall proceedings, but also to make a costs order in advance of an “event”.

39. As an aside, it should be noted that there has been some discussion in the case law as to whether the use of the verb “pay” under section 168 of the LSRA 2015 precludes the making of a protective costs order. The potential argument here being that an order which provides a party with costs protection simpliciter, i.e. a shield against an adverse costs order, does not actually require the payment of any monies to that party. This issue arose, first, in Tearfund Ireland Ltd v.

Commissioner of Valuation [2020] IEHC 621. It is also discussed, obiter dicta, in Browne v. An Taoiseach [2023] IEHC 205.

40. This issue was not advanced in argument before me. For completeness, however, I should record that the use of the verb “pay” under section 168 of the LSRA 2015 does not preclude the making of a protective costs order. The contrary interpretation would entail an overly literal reading of the section which would be inconsistent with the purpose of the newly introduced statutory regime for costs. On the principle that the greater includes the lesser, a power to direct a party to pay the other side’s costs must of necessity encompass within it a power to direct that each party should bear its own costs. If the court can depart from the default position to the extent of ordering the successful party to pay the other side’s costs, it must logically be entitled to take the less draconian step of simply denying the successful party its own costs.

41. The courts’ discretion in relation to costs has always included a power to direct that each party bear its own costs. This is typically recited, in the perfected order, as the court making “no order” as to costs. It is a presumption of statutory interpretation that imprecise statutory language will not be interpreted so as to impose significant changes to the pre-existing law, particularly where the change is contrary to the actual objects of the Act. Here, it would be contrary to the actual objects of the Legal Services Regulation Act 2015 to hold that the use of the verb “pay” had been intended to preclude a court making no order as to costs.

42. Having concluded, on a textual analysis, that the wording of section 168 of the LSRA 2015 appears to allow for a protective costs order, it is necessary next to consider whether the nature of the discretion conferred is broad enough to accommodate a protective costs order. It is instructive to have regard to the approach taken in Little v. Chief Appeals Officer (cited above) to the exercise of the discretion as to costs in general. The judgment recognises that there is a balance to be struck between what might be described as the disciplining effect of costs and the deterrent effect of costs, respectively. The default position, i.e. that the successful party is generally entitled to recover its costs against the other side, recognises that in some cases it will be unjust to force a person to pay for their own litigious victory. The default position also acts as a curative against unmeritorious litigation. This disciplining effect serves the interests of justice.

43. In some instances, however, the risk of an adverse costs order will go beyond having a healthy disciplining effect and produce a deterrent effect. The concept of a deterrent effect is used here to describe circumstances where worthwhile proceedings are unlikely to be brought on for hearing for the want of a litigant with the financial resources to justify his or her incurring the risk on costs. This may arise where the legislation, which is the potential subject of litigation, is directed to a class of persons of modest financial means, such as is the position in respect of social welfare legislation or employment rights legislation. A person who asserts that they have been wrongfully denied, say, a social welfare payment might be deterred from pursuing litigation because the modest financial benefit to them if successful is out of all scale to the costs exposure were they to be unsuccessful. If some adjustment were not to be made to the costs rules in such circumstances, this might skew litigation towards cases the outcome of which may confer significant financial benefits upon the litigants, such as, for example, cases asserting property rights in land or in commercial contracts. Those with more modest concerns might not be able to afford to litigate.

44. There will be instances where the public interest is served by the determination of proceedings which clarify the law, especially in relation to fundamental or sensitive constitutional rights. A party who facilitates the determination of such litigation serves the public interest and it will be appropriate, in certain circumstances, to depart from the default position in relation to costs. Typically, the party seeking a protective costs order will be the applicant in the proceedings. As discussed shortly, however, in some cases a party who performs the role of legitimus contradictor as respondent to proceedings taken by a State actor will also be entitled to costs protection.

45. The judgment in Little v. Chief Appeals Officer facilitates public interest litigation by publishing the criteria governing the discretion to depart from the default position on costs. This provides a framework by reference to which future potential litigants can make an informed decision as to whether their proceedings are of a type likely to benefit from a departure from the default position.

46. Once it is acknowledged that it may be appropriate to depart from the default position on costs to ensure public interest litigation is not deterred, it follows that it may also be appropriate to consider addressing costs in advance. The judgment in Little v. Chief Appeals Officer was delivered at the conclusion of the appeal proceedings, at a time when the substantive merits had been heard and determined. The outcome of the “event” was known. Nevertheless, the principles articulated in the judgment can be extended, with some modifications, to protective costs orders. The rationale underlying a departure from the default position is to ensure that the healthy disciplining effect of costs does not act as a deterrent to the proper pursuit of proceedings, the determination of which is in the public interest. The deterrent effect will often occur prior to the institution of proceedings. A putative litigant will have to make a decision as to whether to pursue the proceedings notwithstanding the risk in terms of costs exposure. It would, obviously, be of comfort to the putative litigant to know, from the outset, that they will have costs protection, rather than to have to await the conclusion of the proceedings at which stage their costs exposure will already have been incurred. It follows that the recognition of a jurisdiction to make a protective costs order shares ground with the values identified in Little v. Chief Appeals Officer.

47. In a model, idealised legal system, it might be possible to put in place a mechanism whereby parties could seek a protective costs order in advance of the commencement of litigation as a matter of course. Such a model would not survive contact with the exigencies of a real-world legal system. It would be contrary to the efficient administration of justice were a constellation of satellite litigation to develop whereby the courts were invited to rule, on a case-by-case basis, on whether a particular set of proceedings would justify a departure from the default costs position. Instead, the Supreme Court has given guidance as to the type of criteria which are relevant to the decision to depart from the default costs position. In most instances, putative litigants will be expected to rely on that guidance to reach their own view on whether their intended proceedings meet the criteria.

48. The making of an application for a protective costs order is justified in the present proceedings by reason of the fact that the circumstances differ vastly from those addressed in the case law to date. The relationship between the Child and Family Agency and a guardian ad litem is of a different character to that which typically exists between the parties in public interest litigation. The guardian ad litem is intended to provide a counterpoint to the Agency’s views. The guardian ad litem also ensures that the views of the child are heard and this fulfils the requirements of Article 42A of the Constitution of Ireland. The importance of this role is recognised in the Child Care Act 1991 in that, in certain circumstances, the Agency is under a statutory duty to defray a guardian ad litem’s costs.

49. Having regard to these factors, it would not have been immediately obvious as to how the principles in Little v. Chief Appeals Officer would map onto the circumstances of the current case. It was entirely proper, therefore, for the guardian ad litem to bring an application for a protective costs order.

ADDITIONAL AUTHORITIES

50. For completeness, it is appropriate to refer to two additional judgments cited in argument, as follows. The first is the judgment in J.S. v. Minister for Education [2023] IEHC 80. The proceedings had initially sought reliefs which would have been of direct benefit to the applicants themselves. Thereafter, external events rendered the proceedings moot. The applicants nevertheless sought to continue the proceedings to address what they characterised as important issues of general public importance for other children with additional needs.

51. Bolger J. held that nothing in the case law supported the expansion of the protective costs jurisdiction to include a case that was commenced for the purpose of asserting the interests of an individual, but which was later narrowed down by circumstances to a sole claim for relief from which other similarlysituated hypothetical persons may benefit in the future.

52. The circumstances of the present proceedings are entirely distinguishable from those of J.S. v. Minister for Education. Here, the core dispute between the Child and Family Agency and the guardian ad litem remains live. The case is not hypothetical. The guardian ad litem, qua the child’s advocate, is of the view that it is in the best interests of the child that his circumstances be referred as directed by the District Court.

53. The second judgment is that in C.D. v. B.B. [2022] IEHC 381. The facts of that case were extreme. A concern had arisen as to whether the applicant in cohabitation proceedings had the mental capacity to participate in the proceedings meaningfully. The applicant’s solicitors proposed to appoint an individual as “next friend” to conduct the cohabitation proceedings on the applicant’s behalf. The applicant’s solicitors applied for a pre-emptive costs order directing that the applicant, and not the proposed next friend, would be liable for any future costs in the cohabitation proceedings.

54. The High Court refused the pre-emptive costs order for a number of reasons. Relevantly, Egan J. held that such an order would be made only if the court were satisfied that there is no other more appropriate avenue by which to adjudicate upon the issue at hand and by which to facilitate the continuation of the proceedings. Having regard to both the wardship regime and the Assisted

Decision-Making (Capacity) Act 2015, the court was not satisfied that there were no alternatives to a pre-emptive costs order.

55. Again, the facts of the present proceedings are distinguishable. It has not been suggested that there is any parallel legal mechanism by which the point of law in relation to the extent of the District Court’s powers under section 47 of the Child Care Act 1991 might be resolved. Rather, the point of law may only properly be determined in the judicial review proceedings.

PROTECTIVE COSTS ORDER: CRITERIA

56. The criteria governing the discretion to make a protective costs order must address two sets of considerations. First, the criteria must include the considerations relevant to any departure from the default position, i.e. that costs follow the event. Second, the criteria must address the complication created by the fact that the ultimate outcome of the event is as of yet unknown.

57. An attempt will be made in the paragraphs which follow to provide a nonexhaustive list of the type of criteria which may be of assistance in deciding whether or not to make a protective costs order. The list has been compiled, in large part, by adapting the criteria identified by the Supreme Court in Little v. Chief Appeals Officer in the context of post-event costs. Some additional criteria have been drawn from the earlier case law on protective costs orders.

58. It should be reiterated that the list is intended as illustrative only. The decision on whether to make a protective costs order is fact-specific and requires an examination of the particular circumstances of the case.

(1). One of the parties to the proceedings must be a State actor

59. A protective costs order will, generally, only ever be appropriate in cases involving a State actor. The concept of a State actor is intended to refer to the juristic person of the State itself or an organ or agency of the State (including a statutory body).

60. There are a number of factors peculiar to the State capable of justifying a departure from the default position on costs, as follows. The State stands to benefit from a clarification of the law in a manner entirely different from ordinary litigants. The State may also bear some responsibility for the necessity for a clarifying judgment: unclear or imprecise legislation is the root cause of much public interest litigation.

(2). Point of law of general public importance

61. It is a necessary, but not sufficient, condition to the exercise of the discretion to make a protective costs order that the proceedings involve a point of law of general public importance. The strength of the case for costs protection is in proportion to the systemic importance of the point. This reflects the fact that the State may often be the net beneficiary of a clarification of the law in an area of systemic importance.

(3). Strength of the point

62. The judgment in Little v. Chief Appeals Officer emphasises that the point of law must be stateable, and that it is only in unusual circumstances that costs would not be ordered against an unsuccessful applicant where the case is other than one of real substance on the merits. It follows, by analogy, that the strength of the case for a protective costs order is in proportion to the strength of the moving party’s arguments.

63. In the context of an application for a protective costs order, any assessment of the strength of the case must, by necessity, be carried out prior to the determination of the underlying merits of the proceedings. A balance must be struck between ensuring that the court has a sufficient appreciation of the case to allow for a meaningful assessment of the merits, and avoiding the protective costs application unravelling into a miniature trial of the action, with all of the attendant delay and expense.

64. The case law suggests that unless the court can be satisfied of the merits of the claim by short argument, it is unlikely to make a protective costs order.

(4). Relative financial resources of the parties

65. The respective financial resources of the parties are a relevant consideration. The court should be satisfied that having regard to the financial resources of the parties relative to the amount of costs that are likely to be involved, it is fair and just to make a protective costs order. The State has enormous financial resources in comparison to most but not all litigants. There will be little justification for a protective costs order if the litigant is a well-resourced commercial entity who will benefit financially from a successful outcome to the proceedings. Such a litigant is likely to pursue the proceedings even in the absence of a protective costs order.

(5). Whether the party has a personal interest

66. It will be relevant to consider whether the party seeking a protective costs order has a personal interest in the outcome of the proceedings. There are two reasons underpinning this consideration. The first is the practical consideration that a party who has a direct financial interest in the outcome of proceedings is more likely to pursue same even absent a protective costs order. The second is that proceedings which seek to advance a personal interest are less likely to have a public law element.

67. This criterion must be applied with circumspection for the following reason. Under Order 84, rule 20 of the Rules of the Superior Courts, an applicant for judicial review must establish a “sufficient interest” in the subject‑matter of the proceedings. Were the existence of a personal interest to be treated as dispositive of an application for a protective costs order, it would give rise to the following paradox. The very attribute that confers standing would, at the same time, operate to disqualify the applicant from costs protection. Such an approach would, in practical terms, deprive the protective costs jurisdiction of meaningful effect in the ordinary run of judicial review proceedings. Put shortly, an applicant for judicial review would find themselves in a Catch-22 situation.

(6). Fee arrangement with lawyers

68. The earlier case law indicates that the fee arrangements as between the party seeking costs protection and their lawyers may be a relevant consideration. In particular, it was suggested that if those acting for the party were doing so pro bono, this would likely enhance the prospects of obtaining a protective costs order.

69. The term “pro bono” is a popular shorthand for the Latin phrase “pro bono publico” which translates as “for the public good”. Strictly speaking, the term “pro bono” refers to a scenario where a lawyer has agreed to represent a client without ever being paid. The term is sometimes deployed, inaccurately, to refer to a situation where a lawyer has agreed to represent a client on a “no foal, no fee” basis. This describes a scenario where a lawyer will only seek to recover their fees in the contingency that their client is successful (and therefore likely to recover costs against the other side). The references in this judgment to “pro bono” are intended to connote the stricter sense.

70. The fact that lawyers are prepared to act on a pro bono basis is certainly relevant where a party is seeking a pre-emptive costs order, i.e. an order which not only shields the party from having to pay the other side’s costs but directs that they are to be paid some or all of their costs irrespective of the outcome of the proceedings. The court might decide that costs protection, i.e. a shield against an adverse costs order, is sufficient in a case where a legal team is available to act pro bono. Put otherwise, the refusal to make a pre-emptive costs order would not stymie the litigation if the lawyers were acting pro bono with no expectation of ever being paid.

71. The same logic would seem to apply to a scenario where the lawyers are acting on a “no foal, no fee” basis. Such a contingency fee arrangement similarly ensures that the litigant is not precluded—by an inability to retain lawyers— from participating in the proceedings. Of course, the litigant remains exposed to the risk of having to pay the other side’s costs. The risk of an adverse costs order may have a decisive deterrent effect.

(7). Consequence of refusing to make a protective costs order

72. One of the more important considerations will be what are the likely consequences of the court refusing to make a protective costs order. This is important because the rationale underlying the discretion to make a protective costs order is to ensure that proceedings, which should be determined in the public interest, are not stymied for the want of a litigant with sufficient financial resources.

73. It would be a factor in favour of the making of a protective costs order if the court were satisfied that it would be reasonable for the moving party not to participate further in the proceedings in the absence of a protective costs order.

DISCUSSION

74. The judicial review proceedings give rise to a point of law of general public importance. The point concerns the extent of the District Court’s jurisdiction to give directions in relation to the welfare of a child. The Child and Family Agency, by dint of its having gone by way of judicial review rather than an appeal to the Circuit Court, has tacitly acknowledged that the issue presenting is one of systemic importance. It is an issue which goes to the core of the Child Care Act 1991 and, in particular, the distinct role of the District Court under the legislation. It is in the public interest that the dispute as to the nature and extent of the District Court’s powers be heard and determined. For the reasons explained at paragraphs 21 to 29 above, I am satisfied, on a provisional assessment, that there is substantive merit to the guardian ad litem’s contention that the impugned District Court orders are valid.

75. These judicial review proceedings have a number of distinguishing features which justify the making of a protective costs order, as follows. The first is that the financial relationship between the State actor and the party seeking costs protection is regulated by statute. More specifically, the Child and Family Agency is obliged under section 26 of the Child Care Act 1991 to discharge the costs incurred by the guardian ad litem in relation to her advocacy on behalf of the child in the context of the care proceedings before the District Court and on appeal to the Circuit Court.

76. The Agency maintains that this statutory obligation does not extend to judicial review proceedings arising out of such care proceedings. The correctness of this interpretation of the legislation is open to question, but that is a matter for another day. For present purposes, the point is that the financial relationship between the parties is asymmetrical. This is significant in circumstances where the precise purpose of a protective costs order is to disrupt the normal flow of legal costs between the parties to litigation. A protective costs order involves shifting the costs burden to the State actor by denying them the benefit of the default position. An important element of the rationale for this shift is the recognition that the State actor will have a greater financial capacity to absorb the costs than will many other litigants. The fact that the legislation already imposes an obligation upon the Child and Family Agency to absorb the guardian ad litem’s costs in a related context is a factor which can legitimately inform the exercise of the court’s discretion under the Legal Services Regulation Act 2015. This is so even if the Agency is correct in thinking that section 26 of the Child Care Act 1991 is not directly applicable to judicial review proceedings.

77. The Supreme Court in B. v. Child and Family Agency [2025] IESC 33 (per Hogan J.) has recognised, in an analogous context, that the role of a guardian ad litem in child care cases is an important one and that it is necessary, therefore, that guardians are not discouraged from participating in important litigation arising under the Child Care Act 1991 concerning the welfare of their charges by the prospect that their legal representatives will not have their costs discharged.

78. The second feature is closely connected to the first and relates to the role of the guardian ad litem in the judicial review proceedings. The judicial review proceedings seek to set aside two decisions of the District Court. The decisionmaker, i.e. the District Court judge, is not a party to the proceedings. This reflects the requirement under Order 84, rule 22(2A) RSC that a judge not be joined in proceedings (save in cases of alleged mala fides).

79. It is precisely because the decision-maker cannot properly be joined to the judicial review proceedings that the guardian ad litem has been joined as the respondent. The guardian ad litem is the legitimus contradictor to the judicial review proceedings. The Child and Family Agency seeks to deny this legal reality. The Agency’s argument is formulated in a number of different ways as follows.

80. First, it is submitted that the judicial review proceedings are concerned solely with questions of law relating to the District Court’s jurisdiction and do not require any consideration of the best interests of this particular child. It is said that the best interests of the child are “simply not an issue” in the judicial review proceedings, save to the extent that the child has an interest in the proper application of the legislative provisions, as opposed to the “sidestepping” of those legislative provisions.

81. Second, it is submitted that the guardian ad litem is expressing her own views and not the views of the child or his mother. It is also said that a fifteen-year old child is able to express his own views.

82. Third, it is said, at the level of general principle, that there is no necessity that there be a legitimus contradictor to judicial review proceedings, citing the judgment of the Supreme Court in Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4.

83. For the reasons which follow, these submissions are not well founded.

84. First, it is incorrect to suggest that the role of a guardian ad litem does not extend to making legal submissions in relation to the extent of the District Court’s jurisdiction under section 47 of the Child Care Act 1991. The role of a guardian ad litem is not confined to making submissions on the particular factual circumstances of the child. Rather, as explained in the case law cited earlier, the guardian’s role is to promote the interests of the child and the interests of justice. The guardian ad litem has been joined to the judicial review proceedings as the sole respondent and it is entirely appropriate for her to make legal submissions on the proper interpretation of the legislation. In particular, having taken legal advice, she is entitled to argue for the interpretation which she says advances the best interests of the child. Here, the guardian ad litem wishes to contend for an interpretation which would allow the District Court to make a direction of the type impugned by the Child and Family Agency.

85. More generally, the concept of the best interests of the child is the animating principle of the Child Care Act 1991 which gives effect to the constitutional imperative under Article 42A that legislation provide for the best interests of the child to be the paramount consideration in all proceedings brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected. In the circumstances, it is reductionist to say, as the Child and Family Agency does, that the best interests of the child are “simply not an issue” in the judicial review proceedings.

86. Second, if and insofar as it is implied that the guardian ad litem’s views are of little weight, at least in comparison to those of the child’s mother or the child himself, this is incorrect. Again as explained in the case law cited earlier, the function of the guardian should be twofold: firstly, to place the views of the child before the court, and secondly, to give the guardian’s views as to what is in the best interests of the child.

87. The suggestion that there is no necessity for the guardian ad litem to participate in the judicial review proceedings, by reason of the child being capable of expressing his own views, is unconvincing in circumstances where the Child and Family Agency has not identified any mechanism by which the child’s views will be made known to the court. The child has not been joined as a notice party to the judicial review proceedings. Indeed, it is only because the child had not been joined as a party to the District Court proceedings under section 25 that it was permissible to appoint a guardian ad litem under section 26 of the Child Care Act 1991.

88. The Child Care Act 1991 expressly authorises a District Court judge to appoint a guardian ad litem. One of the principal purposes is to ensure that the interests of the child are represented. This will include, in part, making the views of the child known to the court. It goes further than that, however, in that the guardian ad litem is in a position to provide a counterweight to the views of the Child and Family Agency in relation to what is in the best interests of the child. It is essential to the proper resolution of the dispute in respect of the District Court’s jurisdiction that there be a legitimus contradictor before the High Court. Ours is an adversarial system and relies, to a large extent, on the parties bringing forward arguments for and against the proposition.

89. Any implication that the guardian ad litem is a mere tourist in the context of the judicial review proceedings is simply incorrect. As a consequence of the nonjoinder of the District Court judge, the guardian ad litem is the legitimus contradictor. Moreover, it should be observed that had the Child and Family Agency pursued its right of appeal to the Circuit Court, which is the normal remedy for a party dissatisfied with a decision of the District Court, the guardian ad litem would continue to be entitled to participate and to recoup her costs from the Agency under section 26 of the Child Care Act 1991. As it happens, the Child and Family Agency has chosen to pursue judicial review proceedings instead. The only justification for not pursuing the alternative remedy of an appeal is that the case presents issues of general public importance which will benefit from a hearing before the High Court and a written judgment. It would, however, be anomalous were the voice of the guardian ad litem to be lost precisely because the proceedings have taken on a greater significance. It is artificial to suggest that a principal participant in the District Court proceedings has no function or role to play in judicial review proceedings which seek to attack the decision of the District Court.

90. Finally, I do not accept the submission made on behalf of the Child and Family Agency that the proceedings are, in some way, abstract from the circumstances of the child and concerned only with matters of statutory interpretation. It is apparent from the statement of grounds that the Agency seeks to challenge the evidential basis for the District Court’s decision.

Ballyboden Tidy Towns Group v. An Bord Pleanála

91. Counsel on behalf of the Child and Family Agency has submitted that there is no requirement for a legitimus contradictor. Counsel cites, in particular, the judgment of the Supreme Court in Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4. The judgment addresses the question of whether a notice party has an entitlement to defend an administrative decision of which they were the beneficiary in circumstances where the decision-maker agrees to the decision being quashed in judicial review proceedings brought by another party. The Supreme Court held that a party with a vital interest in the outcome of the judicial review has an entitlement to defend the proceedings even where a

decision-maker concedes them. In reaching this conclusion, the Supreme Court emphasised that it is the High Court, and not any of the parties, who is the ultimate arbiter of whether to set aside an administrative decision. The position is stated as follows at paragraph 72 of the judgment:

“In judicial review proceedings, the High Court is exercising

its inherent powers to supervise the legality, rationality and

procedural fairness of lower courts and public decision-

making bodies. The grant of a judicial review remedy is the

exercise of the High Court of those powers, and one cannot

thus correctly speak of a ‘consent order’. The High Court

must be persuaded that it ought to exercise its power in a

given situation.”

92. The judgment in Ballyboden Tidy Towns Group reiterates that the entitlement to defend judicial review proceedings is an integral part of the access to the court of a party who seeks to retain a benefit that an (apparently lawful) administrative

decision has granted to them. The judgment also emphasises that in proceedings challenging a decision of the District Court or Circuit Court, a party other than the relevant judge will have to act as legitimus contradictor.

93. It would be a misreading of the judgment—which underscores both the entitlement to defend judicial review proceedings and the important function of the legitimus contradictor—to treat it as authority for an approach that would leverage the deterrent effect of costs so as to remove the legitimus contradictor from the field of battle.

94. The point being made in Ballyboden Tidy Towns Group is that the attitude of the State actor is not determinative of the matter. This is an entirely different proposition from saying that there is no value in having a legitimus contradictor.

Whether a respondent may avail of a protective costs order

95. Counsel on behalf of the Child and Family Agency also placed emphasis on the fact that the party seeking a protective costs order has been joined to the proceedings as a respondent rather than applicant. It is suggested that this is highly unusual and that there is no example in the case law of a protective costs order being granted to a respondent.

96. Having regard to the rationale underlying the making of protective costs orders, there is no reason, in principle, as to why such an order should not be made in favour of a respondent. In brief, the purpose of a protective costs order is to ensure that public interest litigation be heard and determined. It is an essential element of this that the proceedings be properly argued in our adversarial system. In practice, this will normally necessitate the participation of a legitimus contradictor.

97. Counsel for the Child and Family Agency has sought to draw an analogy with judicial review proceedings taken against the District Court in criminal proceedings. The Director of Public Prosecutions is the legitimus contradictor. It is submitted, correctly insofar as it goes, that the DPP will, from time to time, elect not to oppose an application for judicial review. It remains necessary for the High Court to be satisfied that it is appropriate to grant an order of certiorari in the particular case.

98. The analogy falls down, however, by reason of the fact that the DPP is resourced by the State. There is a significant difference between the scenario where a resourced respondent makes an informed decision not to oppose judicial review proceedings and a scenario where a respondent, who genuinely believes the proceedings to be unfounded, is deterred by the risk of costs exposure from opposing the judicial review proceedings. The present proceedings fall into the latter category.

CONCLUSION AND PROPOSED FORM OF ORDER

99. For the reasons explained, I am satisfied that this is an appropriate case in which to make a protective costs order. The underlying judicial review proceedings give rise to a point of law of general public importance. The point of law concerns the extent of the District Court’s jurisdiction to give directions in relation to the welfare of a child.

100. It is essential to the proper determination of the point of law that the court have the benefit of legal submissions from the guardian ad litem as legitimus contradictor. This can only be achieved by making a protective costs order which shields the guardian ad litem from an adverse costs order. In the absence of such a shield, the guardian ad litem will be deterred from further participation in the proceedings.

101. Were the guardian ad litem to participate further, in the absence of a protective costs order, she would be exposed to the risk of having to pay the Child and Family Agency an amount of up to €25,000 (plus VAT) in legal costs. It would be unreasonable to expect the guardian ad litem to undertake this risk. The guardian ad litem is acting in a professional capacity rather than a personal capacity. It is apparent from the very careful and comprehensive reports which she has prepared for the District Court that she takes her obligations to the child very seriously. However, the guardian ad litem cannot be said to have a personal interest in the outcome of the proceedings, in the sense that that term has been used in the case law on protective costs orders. In the absence of such a personal interest, it is unreasonable to expect the guardian ad litem to shoulder the risk on costs.

102. The Child and Family Agency had sought to attach some significance to the fact that the guardian ad litem’s legal representatives were prepared to act on a “no foal, no fee” basis rather than pro bono (in the strict sense). As explained earlier, this would only be relevant if the guardian ad litem were seeking a pre-emptive costs order, i.e. an order which not only shields the guardian from having to pay the other side’s costs but directs that she is to be paid some or all of her costs irrespective of the outcome of the proceedings.

103. The costs protection is confined to a shield against an adverse order. It will be a matter for the trial judge, following the determination of the merits of the proceedings, to decide whether the guardian ad litem is entitled to recover any costs as against the Child and Family Agency. Nothing in this judgment is intended to preclude the guardian ad litem from applying for her costs pursuant to the Legal Services Regulation Act 2015.

104. For the avoidance of doubt, it should be emphasised that this judgment makes no finding on the separate question of whether the statutory right, under section 26 of the Child Care Act 1991, to recoup costs against the Agency in respect of child care proceedings before the District Court extends to judicial review proceedings arising out of such child care proceedings.

105. As to the costs incurred in relation to the application for a protective costs order, my provisional view is that the guardian ad litem is entitled to recover those costs (to include the costs of the written legal submissions). The guardian ad litem has been entirely successful in her application for a protective costs order. In reaching this provisional view, I have had regard to the offers belatedly made by the Child and Family Agency. These offers were first made during the course of the hearing on 11 February 2026, at a time when both sides had already incurred all of the costs associated with the application. Moreover, the guardian ad litem has achieved more than was offered in that she has not had to waive her right to pursue a claim under section 26 of the Child Care Act 1991.

106. If either side wishes to contend for a different costs order than that provisionally proposed, they should notify the registrar and the matter will be listed before me on 3 March 2026. The substantive application for judicial review will be listed on 11 March 2026 for case management in the Judicial Review List. The opposition papers should be delivered prior to that date.

Appearances

Feichín McDonagh, SC and Aisling Mulligan for the Child and Family Agency instructed by the Agency Alan D.P. Brady, SC and Donal Ó Muircheartaigh for the guardian ad litem instructed by E.P. Keane & Company LLP