District Court awards costs to biological father in child care proceedings despite HSE opposition and legal aid issues.

[2013] IEDC 22

AN CHUIRT DUICHE

THE DISTRICT COURT

HEALTH SERVICE EXECUITVE (HSE)

Applicant

-AND-

LC, DW & AW

REspondents

CHILD CARE ACT 1991 - SECTION 17(2)

IN THE MATTER OF A CHILD

27 NOVEMBER 2013

1. This is an application for costs by the second named Respondent in these proceedings.

2. An Emergency Child Protection Case Conference was convened in early 2012 in respect of the child of the first named Respondent

which recommended that the child should be admitted to the care of the Health Service Executive (HSE) for a short period of time, in

order to allow the Respondent mother to stabilise her drug use and source appropriate accommodation.

3. An Application for an Interim Care Order (ICO) in respect of the child was shortly made thereafter made by the HSE which resulted

in the making of an ICO, that Order was extended on seventeen occasions before the second named Respondent was identified as the

biological father of the child in question.

4. The second named Respondent was originally informed that he was not the father of the child by the first named Respondent but

subsequently was informed that there was a possibility that he was in fact the child’s biological father. DNA testing undertaken by the

HSE affirmed this position. The second named Respondent was subsequently informed of the Care Order Proceedings in being in

respect of the child. He was advised to procure legal advice and representation in connection with these proceedings by the HSE.

5. The second named Respondent immediately sought advice from his key worker in the Charity with whom he had longstanding

contact. The Charity procured the assistance of legal advisors known to them, to advise and represent the Respondent. The second

named Respondent indicated his desire to engage as the father of the child and have access to the child. The original hearing dates

allocated to this case were vacated to allow the second named Respondent to meaningfully engage in the proceedings.

6. Given the complexity of the matters at issue his legal advisors instructed counsel with an expertise in the area in respect of the

proceedings and the case took two days at hearing.

7. At the conclusion of the Hearing, the legal representative of the HSE opposed the application for costs made by Counsel on behalf

of the second named Respondent who submitted that the Applicant would have been entitled to free legal aid from the Legal Aid

Board, and that he therefore should have applied for civil legal aid which would have been granted to him on an emergency basis to

ensure his full participation in the proceedings to the extent necessary in achieving his objectives. The issue of costs was adjourned

to await the outcome of a Case Stated from the District Court to the High Court on the issue of costs in child care cases and

whether same is impacted by legal aid eligibility or not.

8. The High Court decision of O’Malley J. in HSE v O.A [2013] IEHC 172 subsequently issued. The latter decision binds this court and

clarifies that that a Respondent in proceedings under the Child Care Act, 1991 (hereafter the 1991 Act) is not obliged to apply for

Civil Legal Aid (even if freely available to him) but can chose to engage a legal representative of his or her choice to oppose any such

proceedings commenced by the HSE. This argument is therefore no longer relied upon by the legal advisors for the HSE in this case.

9. It was argued by Counsel for the second named Respondent that her client suffered significant social disadvantages in the course

of his life and was a particularly vulnerable individual. He has had to grapple with issues of addiction and homelessness. He has been

assisted by a charity working closely with the community to reduce homelessness, and the harm caused by drug misuse and social

disadvantages since he was aged 15 years. He is now 45 years of age. Even if he was entitled to State funded Civil Legal Aid, he had

built up a trusting and professional legal relationship with his current legal advisors. It was objectively and subjectively unreasonable

to expect him to change legal teams at the eleventh hour to avail of State funded Legal Aid.

10. It was also argued by counsel for the second named Respondent that her client’s interests as an unmarried father only came to

light at a late stage in the legal process. He had an interest in participating in the life of his child to ensure his child’s best interests

were served by the proceedings and that his right to have unhindered enjoyment of his private and family life were upheld.

11. His interests and instructions were represented throughout the proceedings by means of both submissions and cross-examination

of the numerous witnesses called on behalf of the HSE. Accordingly his participation in the proceedings were purposeful and in the

best interests of the child in accordance with Section 24 of the 1991 Act.

12. As biological father he was in agreement with the making of the Care Order in respect of his child. The first named Respondent

was not consenting to the making of the Order and the threshold criteria of Section 18 had to be established before the Court could

make a Care Order. The second named Respondent wished that any Orders or Directions made by the Court with regard to his child

would reflect his interests and views as a parent.

13. It was submitted by the legal representative of the HSE that the second named Respondent that the case of Cork County Council

v Shackleton [2011] 1 I.R. 443 was not wholly inapplicable in this case. The case was specifically referred to in O’Malley J.’s dicta at

paragraph 64 of the O.A Judgement when referring to the nature of child care litigation:

“However, that is not to say that it is wholly unlike other litigation. The concept that "there are no winners or

losers" is an appropriate one for the attitude of the professional staff of the HSE and its lawyers but it asks a

degree of detachment that is very unlikely to be shared by a parent. The procedure is, as a matter of fact,

adversarial. Furthermore, although the proceedings may often be more accurately described as a process than a

unitary hearing, there may well be individual issues decided along the way in favour of one side or another”.

14. It was submitted that the Court in O.A held that the Respondent was entitled to seek her costs against the HSE as she

succeeded in the proceedings brought by the HSE naming her as Respondent under the Child Care Act, 1991. The Care Order was

made in favour of the HSE in this case and this should equally be taken into account in the context of costs by the Court. The

second named Respondent was not “successful” in the proceedings, in a technical sense. While he may have consented to the Order,

cooperated with the Court and was satisfied with the outcome it was the HSE who sought and obtained the Order.

15 The legal representative for the HSE also argued that the Supreme Court decision in Dunne –v- Minister for the Environment, the

AG and Dun Laoghaire-Rathdown County Council [2007] IESC 60 had some resonance in this matter also as Murray C.J. stated when

speaking about a court’s discretion in the context of costs indicated that:

There has been no fixed rule or principle determining the ambit of that discretion and in particular no overriding

principle which determines that it must be exercised in favour of an unsuccessful plaintiff in specified circumstances

or in a particular class of case.

It was argued that where a court departs from the ‘costs follow the event principle’ it must do so only on a reasoned basis having

regard to the particular facts presenting in the case in question. The Court was referred in this context to an earlier case of In

Hewthorn & Company -v- Heathcott 39 ILT 248 (1905) where Kenny J. stated:

It is well settled law, as is shown by the authorities cited to me, that when costs are in the discretion

of a judge he must exercise that discretion upon the special facts and circumstances of the case before

him and not be content to apply some hard and fast rule.

In this context it was argued that any ‘yard stick’ applied by this Court, for example by fettering the Court’s discretion to awarding

costs to a respondent parent merely because they participated in a purposeful manner in the context of the proceedings was creating

‘a category of litigant’ who should, by way of exception to the general rule that ‘costs should follow the event’ be entitled to costs,

even when he was unsuccessful in the technical sense. It was therefore argued that (a) the HSE were the successful parties in these

proceedings and (b) the Respondent father was sadly no different from many other litigants in these cases who suffer from social

disadvantage. The court should therefore not exercise its discretion to depart from the general principal that costs follow the event.

16. Counsel for the second named Respondent submitted that the normal ‘cost fallows the event’ principal did not apply in these

cases and noted that the HSE has acknowledged this to be the case in other cases. However even if the principle applied, her client

was in fact ‘successful’ in that he supported the making of the Care Order and secured Directions which respected both his role as

biological father and the best interests of the child. This Respondent father’s ability to meaningfully participate in the proceedings was

dependent upon his legal representation. It was also submitted that the case of Dunne –v- Minister for the Environment and Dun

Laoghaire-Rathdown County Council was not relevant in this case as that case referred to litigation about a public monument.

Decision:

17. Order 51, rule 1 of the District Court Rules 1997 provides that the granting or withholding of costs of any party to civil

proceedings in the Court shall be “at the discretion of the Court”. The issue therefore is how this Court will exercise it’s discretion in

the context of costs; it is important to try to think about the concept of discretion systematically even though ‘discretion’ is an

elusive idea and is hard to embrace or apply in a coherent way. Discretion cannot be exercised ‘at large’ and I therefore set out the

principles by which I have exercised the Court’s discretion in this case.

18. It is well established that the District Court is a creature of statute and can only exercise powers given to it under Statute. The

District Court has an original jurisdiction in proceedings under the Child Care Act, 1991. It is also obliged to interpret this act in a

Constitutional and European Convention of Human Rights (ECHR) compliant manner taking due account of the principles laid down in

the Convention, declarations, decisions, advisory opinions, and judgments of the European Court of Human Rights by virtue of the

European Convention of Human Rights Act, 2003.

19. The High Court decision of O’Malley J. in HSE v O.A is binding on this Court and states:

“I therefore conclude that the District Court does have a jurisdiction, based on statute and on the District Court

Rules, to award costs in proceedings under the Child Care Act, 1991 and that it is not debarred from so doing by

policy considerations relating to the function of the HSE under that Act”.

20. This Court is statutorily obliged by section 24 of the 1991 Act:

“In any proceedings before a court under this Act in relation to the care and protection of a child, the court,

having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall—

(a) regard the welfare of the child as the first and paramount consideration, and

(b) in so far as is practicable, give due consideration, having regard to his age and understanding, to

the wishes of the child”

I am satisfied that the fulsome participation of the second named Respondent in the proceedings was necessary and proportionate to

achieve this objective of the Act in a legislative, Constitutional and Convention compliant manner.

21. This is a very unusual and particular case. The Respondent father in this case suffers from very serious social disadvantages. He

was only notified of his status as biological father late in the proceedings, through no fault of the HSE. Indeed another gentleman was

originally named by the first named Respondent as father and this man had access to the second named Respondent’s child for a

period. However, at the eleventh hour the second named Respondent was given the news that (a) he was a biological father and (b)

there were proceedings before this Court in being to determine how his child would be reared. He pursued advice and assistance from

the Charitable Organisation he had always engaged with and was directed to his current legal advisors who represented him in the

proceedings and in this manner he achieved what he considered to be the best outcome for his child. In all of these circumstances I

exercise my discretion to award him his reasonable costs, such costs to be taxed in default of agreement.

22. In the exercise of this discretion this Court cannot take into account the Respondent’s legal aid eligibility or lack of eligibility as it

is bound by the decision of O’Malley J. in HSE v. O.A.. Even were the Court not bound by the decision in HSE v O.A it was entirely

reasonable, in the circumstances of this case, that the second named Respondent chose to remain with his trusted legal advisors

rather than applying for Civil Legal Aid.

23. At the request of the HSE I grant a stay for two weeks to enable the HSE to consider whether to appeal this decision.

District Court Judge