District Court dismisses HSE costs claim in child care case due to lack of statutory authority for awarding respondent costs.

[2009] IEDC 1

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

IV & AV

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 17(2)

IN THE MATTER OF CHILD 1

13 February 2009

1. I have to decide on the questions of costs in a matter entitled HSE and V which came before the District Court assigned to deal

with applications and matters under the Child Care Acts in the District Court concerning a Child 1.

2. I do not propose to go into the detail with respect to the matter, as both parties have clearly set out the background and issue

involved in the case. Both parties assisted the Court greatly with their very clear expositions of the law as they saw it with regard to

what this Court has had to decide. For what it is worth, I might mention that the standard of representation on the part of both

parties was very high and both parties were very well served by their legal teams. The constructive engagement by the parties with

each other within the framework of this process was something that benefited Child 1 greatly and I include the GAL in this also.

3. These are difficult areas in that we are dealing with matters that have lifelong consequences; it is because of the very high

standards and legal knowledge that legal representatives brought to this hearing, together with a sense of optimism and commitment

on the part of their clients, that progress was made for the benefit of Child 1. Whilst there were major differences of approach by the

parties at the outset, a convergence did occur to the benefit of Child 1. He is, and was, well served by his social work team, his

teachers, and his mother who, in the most difficult of circumstances, grasped the essential reality underlying this issue and resolved

to deal with it.

4. This particular court deals with what are described as public law family cases as opposed to private law family cases which are

heard in other District Courts. Childcare applications under the Childcare Act deal with interventions in family life that have a specific

public interest, namely that children must be protected from harm, neglect, and abuse.

5. The HSE state that the case Southern Hotel Ltd v Iarnród Éireann [2007] IEHC 254 has established that where there is no

statutory provision in an Act for the award of a respondent’s costs, the District Court may not award costs. They quote a number of

cases, such as Dillane v AG [1980] ILRM 167 and State (AG) v Shaw [1979] 1 IR 136, to support their proposition that there is no

inherent jurisdiction to award costs in the District Court. In other words, irrespective as to what the District Court rules say, where

there is no jurisdiction to do so, the District Court may not award costs. They state that the District Court is a court of limited and

local jurisdiction created by statute. In the Iarnród Éireann case, Hedigan J differentiated between different types of criminal and

civil, public law and private law cases and examined the various concepts involved.

6. The HSE are obliged by law to pursue applications to Court in pursuance of their obligations under the Child Care Act. They are the

primary Child Protection Authority in this state. They must do so in circumstances where they believe that the interests of children

require protection as set out in the legislation. When the HSE make bona fide applications to Court, I cannot see that there ought to

be any inhibition on them is so doing. If it were the case that they would be exposed to orders for costs if they failed in their

applications, then this would place an enormous burden upon them in exercising this most essential aspect of public policy, namely the

protection of children: their best interests and welfare. These interventions are statutorily based and must be constitutionally

compliant, but an essential ingredient thereof is that they are exercised in the public interest by a statutory authority.

7. In this case, there was a real and substantial basis for the HSE to pursue their application. As the case proceeded, circumstances

changed and a situation developed whereby the HSE came to the view that the Child 1 ought to be returned to the care of his

mother. The Psychologist, in his evidence and report, set out his views on the matters concerning the relationship between Child 1

and his parents. The case had not reached the point whereby this evidence was challenged or cross examined. It is my view that the

HSE behaved properly in changing their plan for Child 1 in this way. Not only were they correct, it is the law that they must do so.

The issue of reuniting children with their parents is always present and it never disappears from the Court’s view except in the most

extreme situations. Our legislative and constitutional framework is fundamentally different in this regard from that of near neighbours

although similar in other ways.

8. The respondent has prepared a very comprehensive submission in this matter of costs and sets out very clearly how she views the

position, quoting section 78 Courts of Justice Act 1924, section 59 Dublin Police Act 1842, and section 91 of the Courts of Justice Act

1924 together with Rule 37 of the District Court Rules made pursuance to section 91 of the Courts of Justice Act 1924. The

respondent quoted and has handed in the case of The State (at the prosecution of James Hempenstall) v Judge Shannon KC and

District Justice Reddin [1936] 1 IR 334. Section 91 relates to the requirement of a District Judge to hear and determine any charge or

complaint and shall have the power to order any party (other than the AG or the Garda Síochána) to pay the other party costs as

shall seem meet. Section 33 of the Courts (Supplemental Provision) Act 1961 is quoted to set out the transfer to the District Court all

jurisdictions by virtue of sections 77 and 78 of the 1924 Act. In other words, counsel comprehensively set out the basis of the

jurisdiction of the District Court and how this has developed over time by statute. The District Court Rules are quoted including the

Costs Rules of 1996 and Order 51, which says that save as otherwise provided by statute or by rules of court the granting or

withholding of the costs of any party to civil proceedings in the Court shall be at the discretion of the Court. The respondent states

that the proceedings are civil, in that the application before the Court is different that that considered by Hedigan J in Southern Hotel

and further states that the practice and custom of the District Court has been to award costs.

9. In my short résumé here, I am not doing justice to the intellectual vigour and application of the submissions put by either party

herein. I am merely reciting aspects thereof to assist in my decision-making endeavours. The Child Care Act, 1991 is silent on the

question of costs except in sections 25 and 26 which deal with particular representation on behalf of the child by a solicitor or GAL. It

is my view also that when you look at the overall thrust of this Act, the legislature was very conscious of the financial aspects

underlying it and its purpose. The most obvious example of this is section 45 which deals with aftercare. It seems to have been

enacted in a particular way which can only be explained by these considerations, although as an aside, I am not so sure that the full

impact and meaning of that section has been fully worked out in a legal sense. I must confine myself to the issue at hand.

Hempenstall is an interesting case but it is not applicable in this instance. It is clear that section 91 relates to the requirement of a

District Judge to hear and determine any charge or complaint and shall have the power to order any party (other than the AG or the

Garda Síochána) to the pay the other party’s costs as shall seem meet. In the proceedings that this Court deals with, there is no

complaint or charge. Furthermore, Hempenstall clearly relates to a private law matter which is clearly distinguishable from a case of

this nature under the Child Care Act. This is a distinct procedure, indeed novel and unique to these proceedings, namely an

application by a public statutory authority in pursuance of the statutory objectives.

10. The issue of public law versus private law cases is crucial to this issue. The Child Care Act is public law as the HSE are required

by Statute to protect the public interest insofar as that affects the interests of children. One can argue that they are civil in the

sense that they are not criminal just as applications under the Environmental Protection Act are civil and not criminal.

11. However, this only goes part of the way, as these cases are public law in that they are brought by public authorities as opposed

to private law cases are brought by private individuals. Brayne and Carr, in Law for Social Workers (Oxford University Press, 2010),

define care proceedings as public law proceedings as opposed to private law proceedings where ‘[t]he outcome of the case, though,

is not of interest to society as a whole, only to the parties to the dispute.’ Brayne and Carr further elaborate this by stating that

Public Authorities, in interfering with individual citizens, do so under a set of principles and standards. Those standards they say are

achieved by operation of law, and the law that performs this function is known as Administrative Law with its requirement for fairness

and natural justice in the context of our constitutional requirements and international obligations.

12. Geoffrey Shannon, in Child Law (Round Hall, 2010) page 108, discusses safeguarding the welfare of children and states that ‘[t]he

general welfare of the child is a matter of concern not only to his or her family but also to society at large.’

13. O’Halloran, in her book on the Northern Irish child care system, refers to it as a public law system. In describing the coercive

element of the system, she states at page 18 that ‘[c]oercive intervention is the means by which welfare related issues are brought

before the court in a public law context.’

14. The HSE, under the provisions of the Child Care Act 1991, has a positive duty to promote the welfare of children who are not

receiving adequate care and protection. Applications are made to court under the provisions of the Act as amended and indeed under

other Acts by the HSE in pursuit of their statutory obligations.

15. It is my view that these proceedings are public law matters. It seems to be therefore that the principles laid down by Hedigan J,

in the Southern Hotel Ltd v Iarnród Éireann apply. I do not accept the analysis of the respondent in that it does not apply as it

relates to an issue as and between the EPA and commercial entities. There is no statutory provision for the awarding of costs thus I

have no jurisdiction to do so. It is clearly said in that decision that rules cannot create substantive law and where there is no

statutory provision, the rules cannot create jurisdiction. Order 51 does not confer a power as such but sets out how this power,

which has been conferred by statute, may be used. As Hedigan J noted in Southern Hotel Ltd:

‘Order 51 expressly refers to “civil proceedings”. The power to make rules such as the District Court rules 1997 is

confined to practice and procedure; it does not extend to making rules regarding substantive law. In The State

(O’Flaherty) v. O’Floinn [1954] I.R. 295 dealing with a District Court Rule which allowed a judge to remand an

accused for fifteen days while statute only allowed eight days, Kingsmill Moore J. said at p. 304:

“What is meant by the words ‘practice and procedure’? broadly I would answer ‘the manner in which or

the manner whereby effect is given to a substantive power which is either conferred on a court by

statute or inherent in its jurisdiction.”

In Kerry County Council v. McCarthy [1997] 2 ILRM 481, O’Flaherty J. at p. 483 noted that the words “pleading,

practice and procedure generally” referred to matters which are “strictly procedural in the narrow sense”. O’Flaherty

J. found that the issue of summary summons by a clerk was administrative, stating at p. 485 that the matter was:-

“…fairly and squarely one of administrative procedure only with no consequences affecting the liberty or

any right of the citizen.”

The Rules cannot therefore create a power to award costs where there is no jurisdictional basis to do so. As

regards the meaning of “civil proceedings”, in Ex parte Waldron (cited above), the phrase “civil proceedings” was

considered not to include judicial proceedings as they are public law proceedings. Ackner L.J. at p. 1101:-

“…the words ‘civil proceeding’ unless specially defined, are apt only to cover civil suits involving claims in

private law proceedings. The words are not apt to include proceedings for judicial review.”

I consider that a complaint under s. 108 of the 1992 Act is not a claim in private law proceedings but is more in the

nature of a public law complaint. The relief provided by s. 108 is an order to take measures to prevent noise which

is of general interest; there is no provision for damages as in private law proceedings. This being so it appears to

me that s. 108 of the Environment Protection Act is not a civil proceeding within the meaning of O. 51 r. 1 of the

District Court Rules. I would note further that, even were it so, it is hard to imagine that the court would exercise

its discretion in such a way as to negate what appears to be the clear intention of the legislature in excluding costs

from a s. 108 procedure.’

There is no such express power in the Child Care Act 1991. Hedigan J also dealt with the question of the inherent jurisdiction of the

District Court and stated that:

‘As to the second question raised by the District Judge, in my view it is well established that there is no inherent

power in the District Court to award costs. This follows from the fact that the jurisdiction of the District Court is

defined and limited by statute. In The Attorney General v. Crawford [1940] I.R. 335 as submitted by the

respondents, a divisional court of the High Court decided that in proceedings for the recovery of a penalty under s.

186 of the Customs Consolidation Act 1886 brought at the suit of the Attorney General, the District Justice on

dismissing the matter had no jurisdiction to award costs specifically, the divisional court found that there was no

inherent jurisdiction in the District Court to award costs in the absence of express statutory power. At p. 342 of the

report, Maguire C.J. observed:-

“It is well established that there is no inherent power or jurisdiction to grant costs, and that costs can

only be granted under the provisions of some statute or rules; Garnett v. Bradley; O’Conner’s Justice of

the Peace 2nd Edition Volume 1 p. 198; Paley on Summary Convictions, 7th Edition p. 227. The District

Court was established by the courts of Justice Act 1924 and is the creature of that statute.”

This finding that the District Court has no inherent jurisdiction to award costs in the absence of an expressed

statutory power was affirmed by Finlay P. in The State (Attorney General) v. Shaw [1979] I.R. 136.’

16. In this case, it is my view that I am bound by the decision of Hedigan J in his judgment which was very specific about the main

matters put to the Court but also emphasised his judgment by disallowing the costs of the day which the applicant was seeking in

respect of the lost day that occurred by the late entry of the respondents in the proceedings in a situation where these costs had

been awarded by the District at the very outset of the proceedings.

17. It may well be that the District Court ought to have a discretion in this area but I have to apply the law as I understand it. Thus,

I am not allowing costs of the adjourned day against the HSE.

18. I have to say also that with respect to the position under Art 6 of ECHR, I see no basis for any argument in relation to a breach

of the respondents rights thereunder and the quoted case of O’Donoughue v Legal Aid Board [2004] 4 IR 205 deals with the law on

this aspect. I might add that the issue of legal aid is not one for this court, there is a clear system established by law consequent on

Airey v Ireland [1979] 2 EHRR 305 in this jurisdiction. In any event, the respondent had a fair hearing and was very ably represented

by her solicitor and counsel.

19. It seems to me in discussing this matter I mentioned that this falls into two clear parts and this does not include that of legal aid:

1. Have I the power to grant costs in these proceedings?

2. On the merits of the case, ought I to grant cost to the respondent?

With respect to the latter, as I am of the view that I do not have the power to grant costs there is no point me discussing the merits

of the issue with respect to costs. Whilst I have decided this matter not in favour of the respondent, I am very taken with his

counsel’s description of what this court does on page 15 of his submission:

‘[g]iven the direction of the Court that child care proceedings are in character an inquiry, clearly it is thereby

implied that there are no winners or losers in child care applications … if anything, in this instance it could be said

that the child is the successful party … I think we all should bear this in mind at all times and remember that the

only successful outcome of these proceedings ought to be the child.’

Exercised

20. There is provision for costs with respect to the GAL but not for any other party. It is true that these cases are civil in the sense

that they are civil in contradistinction to a criminal hearing. It is my view that applications under the Child Care are public law family

cases as distinct from private law family cases. The HSE are acting as a public statutory body operating under an Act exercising their

obligations.

21. Furthermore, the HSE is a public statutory body established by an Act of the Oireachtas in 2004. It was not set out therein that

as part of its function that it would provide legal aid for parties coming before the Court. The provision of legal aid is provided for in

other legislation. Monies voted by the Oireachtas for the HSE in pursuance of its statutory function are not done so for a purpose of

supplementing legal aid provision.