District Court awards costs to mother in care review but refuses certification for review counsel due to complexity.

[2013] IEDC 23

AN CHUIRT DUICHE

THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-V–

PO & OO

RESPONDENTS

CHILD CARE ACT, 1991 – SECTION 17(2)

IN THE MATTER OF A CARE ORDER REVIEW IN RESPECT OF CHILD 1 AND CHILD 2 - CHILDREN

27 NOVEMBER 2013

1. This matter came before the Court by way of a review of a Care Order made in July 2009. The Care Order in respect of two

children provided for a review of the Care Order made by the Court in light of Child 2’s acknowledged many physical and emotional

needs. Child 2 was aged 8 years and 4 months at the date of Review by the Court in April 2013. The Child is in residential care having

a diagnosis of global developmental delay, cerebral palsy, epilepsy, vision and hearing Impairments, intestinal difficulties, microcephaly,

poor co-ordination and lack of speech. Child 1 has less complex needs.

2. Both children are Irish citizens but have another cultural heritage. The children were taken into the care of the HSE by Order of the

District Court in circumstances of extremely serious neglect, lack of supervision, exposure to domestic violence and physical abuse.

3. The first named Respondent disengaged from access with Child 2 who has been in residential care since June 2011. The first named

Respondent adopted a firm position that she should be allowed to take Child 2 to her own home for access visits rather than visit

Child 2 in the residential home. However access recommenced again in February 2013 and has taken place on two occasions; this

access took place in the small residential unit in which Child 2 resides.

4. The second named Respondent has been disengaged from access since 2011 also and his current whereabouts are unknown to all

parties.

5. The Guardian Ad Litem was reappointed for the purposes of the Review before the Court and has met with Child 2, who has

achieved significant progress but is verbally unable to convey his/her wishes and feelings with regard to the proceedings. The

Guardian expressed their satisfaction with the placement and Child 2’s obvious contentment and happiness within the placement.

6. The Court adjourned this matter at the request of the parties to facilitate the a pre-Review Meeting in relation to Child 2’s Care

Plan in advance of the Court Review.

7. The Review was completed by the Court in April 2013 at the conclusion of this Statutory Review.

8. The legal representative of the Applicant submitted that the circumstances surrounding the making of the Care Orders in this case,

and the first named Respondent’s overall participation in the lives of the children since being taken into care, must be weighted in the

balance by the Court in the context of this costs application.

9. Counsel for the first named Respondent applied for an Order for Costs in respect of the representation of his client at the Review of

this case by the Court, and this application has been adjourned from time to time at the request of the parties. Counsel argued that

his client meaningfully participated in the enquiry which was in the best interests of the child. His client gave evidence and opened

herself to cross examination and facilitated the Court Review to the greatest extent possible.

10. The HSE opposed the application for costs by the mother and both parties made lengthy written and oral submissions to the Court

in respect of the costs application by the first named Respondent.

11. Counsel for the first named Respondent argued that the District Court must exercise discretion to award or withhold costs in each

case without creating a category or a non-category of cases in which costs will be awarded. It was argued that each case must

stand upon its own facts and merits.

12. Counsel relied upon the decision of the High Court in the case of HSE v O.A. [2013] IEHC 172 to highlight the proposition that the

District Court is not entitled to take into account whether the mother applied for legal aid. He cited the two questions posed to the

High Court in that case which were both answered in the negative. The two questions posed were:

(i) In exercising my discretion as to whether or not to grant costs to the Respondent [can I] take into account that

the Respondent may have been entitled to receive legal aid and has access to legal aid.

(ii) In exercising my discretion as to whether or not to grant costs to the Respondent [must I] take into account

that the Respondent may have been entitled to legal aid and has access to legal aid.

The Court in that case concluded:

[T]hat the mother was entitled to choose her own representative, that she was not in any way obliged

to apply for legal aid and that her eligibility for legal aid, whether established or presumed, has no

bearing on her entitlement to apply for her costs. I will therefore answer both of the questions posed

in the negative.

13. Counsel for the first named Respondent also relied upon the decision of the High Court in the case of Cork County Council v

Shackleton [2011] 1 I.R. 443 and argued that when the court is diverting from maxim “the cost follow the event” principle that it must

do so on a principled basis. The dicta of Clarke J. at page 488:

To state that the court retains a discretion is not to give the court carte blanche. It may well be that it is neither

possible nor appropriate to list all of the circumstances in which the discretion concerned might be exercised or all

of the factors which might properly be taken into account. Experience has shown that new and different cases

may lead to a refinement or expansion in the principles applicable. However, it does seem to me that all discretion

needs to be exercised in a reasoned way against the background of having identified appropriate principles by

reference to which the court should exercise the discretion concerned.

14. Three principles were urged upon the Court when considering a costs matter:

The best interest of the child;

The Constitutional rights and European Convention of Human Rights (ECHR) rights of the mother; and

The right of Access to Justice.

The Best Interest of the Child

15. In every matter before the Court under the Child Care Act, 1991 the Court is statutorily obliged by section 24:

“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 review by the Court of the Care Order and consequent application for costs are proceedings before the Court

for the purposes of that Section.

The Constitutional Rights and ECHR Rights of the mother

16. The children, the subject matter of these proceedings, are in the care of the HSE since March 2008. A Care Order was made in

respect of them until they reach 18 years of age. The current proceedings relate to a Court Review of this Care Order as directed by

the original Care Order in light of the complex needs of Child 2.

17. Child 1 is now 13 years old and Child 2 is now 8 years old. Child 1 resides in foster care where he/she is well settled in his/her

placement. Child 2 has extensive care needs as outlined in paragraph 1. Child 2’s care needs, including his placement, continue to be

met by a disability service and he will transfer to a residential service for adults when he reaches the age of 18. Issues raised in this

Review included the appropriateness of the adult onward placement, the frequency of sibling access and issues concerning the

circumstances surrounding parental access.

18. The first named Respondent was represented in this review by Counsel and solicitor. The first named Respondent has

Constitutional rights and rights under the ECHR and the European Charter notwithstanding the fact that her children are in the care of

the State. Her participation in the proceedings is entirely appropriate and the sole matter at issue relates to her entitlement to legal

costs in respect of such participation.

The Right of Access to Justice

19. The case of P, C & S v United Kingdom Application Number 56547/00 was also opened to the Court in support of the proposition

that Article 6(1) of the ECHR embodies the right of access to a Court for the determination of civil rights obligations, and that failure

to provide an application with the assistance of a lawyer may breach this provision where such assistance is indispensable for

effective access to court.

20. There is no constitutional or Convention right to civil legal aid, there is no automatic right under the European Convention of

Human Rights to civil legal aid or legal representative in this type of litigation. It was argued that while Articles 8 or 6 do not stipulate

a general category of people that are entitled to have there cost paid for funded by the State in litigation, the general principles set

out in those articles suggest that this is a case where his client could not be expected to represent herself. It was accepted that

entitlement to costs must be established on a case-by-case basis, but this case warranted the award of costs.

21. The Court accepts that no enquiry can be made as to why the first named Respondent in this case did not apply for civil legal aid

from the Legal Aid Board by virtue of the decision of Judge O’Malley in the case of HSE v O.A. who has determined that a party is

entitled to choose said:

“I conclude that the mother was entitled to choose her own representative, that she was not in any way obliged

to apply for legal aid and that her eligibility for legal aid, whether established or presumed, has no bearing on her

entitlement to apply for her costs. I will therefore answer both of the questions posed in the negative.”

22. 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 matter at issue therefore is how and on what basis this Court

should exercise that discretion in the circumstances pertaining in this case.

23. The costs follow the event principle is not entirely appropriate in this case as there is no ‘event’ to follow as set out in the case

of Cork County Council v Shackleton [2011] 1 IR 443. This is a review of a Care Order and the Review is in the nature of an enquiry as

to the sundry welfare issues presenting in the lives of each child in the care of the HSE. Issues also arise regarding their individual

circumstances and the participation of their full and half siblings and parents in their lives. Following a full enquiry on these issues,

involving the HSE, the Children’s Guardian Ad Litem, and the mother; having considered the evidence adduced the Court amended the

original Care Order to include additional Directions under Section 47 of the Child Care Act, 1991 in the best interests of the children

who are the subject matter of the proceedings.

24. Counsel 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 did not have a resonance in this case as the costs follow the event principle did not apply

in the context of a Care Review.

Decision:

A. The matter at issue in this case is how the Court should exercise its discretion whether to an award of costs.

B. The first named Respondent meaningfully participated in the proceedings before the Court.

C. I am not persuaded by submissions by the legal representative for the HSE that the circumstances surrounding the making of the

Care Orders and the First Named Respondent’s overall participation in the lives of the children since being taken into care must be

weighted in the balance by the Court in the context of this costs application regarding this Court Review.

D. The first named Respondent is entitled to be represented in her participation in the proceedings. English is not her first language

and although residing in Ireland for some time, she may well find participation in a legal process to be overwhelming.

E. The First named Respondent purposefully participated in the review proceedings of the care order, and I cannot take into account

her legal aid eligibility or lack of eligibility, as I am bound by the decision of O’Malley J. in HSE v. O.A.. Accordingly the first named

Respondent is entitled to reasonable costs in respect of her participation in these costs proceedings before the Court.

F. However, I am not persuaded that it is reasonable to certify for Counsel with respect to the review of the Care Order. The

circumstances and the deficits under which Child 2 is operating are clearly extraordinary and complex, but the legal matters at issue in

this Review are not complex.

G. It is a matter for the HSE to determine whether legal engagement on behalf of a Guardian Ad Litem was necessary or

proportionate. There is no application before the Court in respect of the Guardian Ad Litem, if there were I would not certify for

Counsel in respect of the Review before the Court.

H. The Court received submissions as to costs from the HSE and the first named Respondent and I certify for costs for Counsel for

the first named Respondent only in relation to those costs associated with the preparation of these legal submissions in relation to the

costs application only.

I. Costs in either context to be taxed in default of agreement.

District Court Judge