District Court orders HSE to pay respondent's legal costs in urgent child care proceedings to ensure welfare principle is met.

[2010] IEDC 2

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

SK & CP

RESPONDENTS

IN THE MATTER OF CHILD 1

9 June 2010

1. The first named respondent applied for costs in respect of the Emergency Care Order application by the HSE on 18 March 2010, an

Interim Care Order application on 25 March 2010, and an extension of the Interim Care Order application on 20 April 2010. Brief oral

submissions were made by the first respondent concerning the nature of the case and in particular its urgency, and reference was

made to Marie O’Donoghue v The Legal Aid Board and ors [2004] IEHC 413. The HSE opposes the application for costs; their

submissions set out in letter of 20 May 2010, and reference was made to Southern Hotel Sligo Ltd v Iarnród Éireann [2007] IEHC 254.

2. It is accepted by the parties that the first named respondent would not have been able to obtain representation from the Legal Aid

Board (assuming that she would otherwise qualify for such representation) between the time she was notified of the application for

the Emergency Care Order and the hearing of that application.

3. It is further accepted by the parties that it is most unlikely that the first named respondent would have been able to obtain

representation from the Legal Aid Board (assuming that she would otherwise qualify for such representation) between the time she

was notified of the application for the Interim Care Order and the hearing of that application.

4. By their very nature, all applications for Emergency Care Orders and Interim Care Orders are of momentous importance. Emergency

Care Order and Interim Care Order applications are subject to the welfare principle, both by its specific incorporation into the Act and

pursuant to the Constitution and the ECHR. The welfare of the children requires that the court should deal with such applications in a

manner that recognises their urgency while considering all matters pertaining to the application that may be brought to the court’s

attention by any party (or otherwise).

5. Children themselves (even those who might have sufficient understanding) are rarely present at (or on notice of) Emergency Care

Order or Interim Care Order applications. It falls to the applicants and respondents to inform the court of the facts, to adduce

evidence including expert evidence, and to address the court as to the legal question of whether the threshold conditions for the

granting of the application have or have not been met.

6. In general terms, the applicant (which is always the HSE) is both skilled and experienced in the court process of application for

Emergency Care Orders and Interim Care Orders, while the respondent is not. Save where the court is satisfied that the matter may

proceed ex parte, the welfare of the child requires that the respondent parent or guardian (who is in a unique position to assist the

inquiry of the court and its decision whether to grant or refuse the application) should have the opportunity to present his or her

case, and should be assisted in doing so as far as possible (in a manner consistent with the urgency of the matter).

7. The court will assist respondents as far as is possible; however, the court’s assistance is not equivalent to a respondent having his

or her own representation.

8. In many cases in the District Court, the court can assist a person by adjourning a case to give the person time to consider

whether to obtain legal advice and/or legal aid, and time to arrange representation. Given the nature of Emergency Care Order and

Interim Care Order applications, adjournment is unlikely to be appropriate, certainly not without a detailed consideration of the merits

of the application, and such consideration of the merits would similarly require that the respondent’s case be presented in the

interests of the welfare of the child.

9. If the respondent cannot access Legal Aid for the Emergency Care Order and Interim Care Order applications, then the respondent,

for cost reasons, may not be able to secure private representation. The absence of representation may result in the respondent

failing to properly and fully present his or her case, which failure is detrimental to the welfare of the subject child. In order to ensure

the paramountcy of the welfare of the child, the matter of costs of representation should not prevent the respondent being

represented.

10. Section 3 of the Child Care Act 1991 makes it a function of the HSE to promote the welfare of children not receiving adequate

care and protection. Section 16 of the same Act requires the HSE to institute proceedings in the circumstances set out therein. And,

section 24 requires that the court in such proceedings have regard to the welfare of the child as the first and paramount

consideration. In bringing an application for an Emergency Care Order or Interim Care Order, the HSE is alleging that the child is not

receiving adequate care and attention, and that the child is unlikely to receive such care and attention if the application is not

granted. The Court, in vindicating the rights of the child, must have the best available assistance in its inquiry. If that is best

provided by a legally represented respondent, then in order to promote the welfare of the child as required by the said Act (and in the

absence of any other provision whereby the necessary representation will in practice be provided by or funded by the Legal Aid Board

or other body) the HSE should meet the reasonable cost of such representation if that cost is beyond the means of the respondent.

11. The applicant refers to Southern Hotel Sligo Ltd v Iarnród Éireann [2007] IEHC 254. The proceedings under the Environmental

Protection Agency Act were not governed by the welfare principle, were not of the potentially momentous importance of Emergency

Care Order or Interim Care Order proceedings, and were not of the same urgency. The Environmental Protection Agency Act does not

contain sections comparable to sections 3, 16, and 24 of the Child Care Act 2010.