District Court dismisses costs application for Child Care Act proceedings where no order was previously made on specific dates.

[2014] IEDC 21

AN CHUIRT DUICHE THE DISTRICT COURT

CHILD AND FAMILY AGENCY

APPLICANT

-AND-

KM

AND

CW

RESPONDENTS

CHILD CARE ACT 1991

IN THE MATTER OF COSTS

Judgment of Ms. Justice Constantine O’Leary delivered on 13th March 2014

1. I have agreed to consider the question of costs in relation to all applications involving these parties having regard to Judge Toale’s

position about ruling on costs on interim applications at the conclusion of the entire proceedings, the lack of experience by the

Respondent’s solicitor in appearing in this Court on proceedings such as these, and of the repeated applications, their various

disposals, and my adjournments of issues specifically relating to costs.

2. Having looked at the record, I note that I ruled on the issue of costs for the 13th of November on the 11th of December 2013, also

I have also ruled on the issue of costs for the 4th of December and the11th of December on the 11th of December. Where I said “No

other order as to costs”. The matter has already been ruled by me. I have no jurisdiction in relation to costs for those dates. The

only matters on which I have not expressly ruled are costs in respect of the 10th, 15th, 18th and the 23rd of October 2013, and the

8th of January 2014, any costs arising from this application for costs and the days which dealt exclusively with organising the

psychiatrist’s report. I will explain below why the October dates do not now arise and my reasons in relation to my ruling on costs for

the January and February proceedings before me. The costs of the dates in relation to the psychiatrist’s report are captured by the

Order of the Judge who heard the application under Section 18 of the Child Care Act 1991, as they were to advance the hearing he

conducted.

3. There would be a strong argument that I cannot re-visit the costs for the October dates, but as I did not express any order in

relation to them, I will re-enter them and refuse the application. I will make an order for no order as costs in respect of the 10th,

15th, 18th and the 23rd of October 2013, the 8th, 29th, and 31st of January 2014, the 21st of February 2014 and today 13th of

March 2014.

4. I sat on the 21st of February 2014, expecting to hear submissions about costs for 08/01/2014, to be met by a statement that the

Respondents were seeking costs for all other days. Earlier receipt of the solicitor’s submissions by me from the Family Law office might

have helped, but it would also have been helpful for case management if the fact that costs additional to those of 08/01/2014 were

being sought had been specifically stated. It certainly escaped Ms K’s notice when drafting her response to the submissions. The

solicitor felt it necessary to write his supplementary letter on the 20th of February 2014 to clarify and confirm his position.

5. The dates on which the matter was in Court and a summary of the business done on those dates is as follows:

• 10/10/2013 - Application for an Interim Care Order. Adjourned on the Respondents undertakings to 15/10/2013. No

application for costs.

• 15/10/2013 - Application part-heard and adjourned to 18/10/2013 to conclude.

• 18/10/2013 – An Interim Care Order made to 13/11/2013. Undertakings not accepted due to credibility issue. No

application for costs.

• 23/10/2013 - Case re-entered without any notice to the Court or written notice to Health Service Executive (HSE) (now

the Child and Family Agency (CFA)) on the solicitor’s application, on matters on which I had reserved my position on the

18th of October 2013 pending further submissions by him. Submissions rejected. No application for costs.

• 13/11/2013 - Application for a Care Order and an Application to extend an Interim Care Order to 11/12/2013. Credibility

restored. Undertakings accepted to 04/12/2013 at Judge’s instigation after hours of evidence and argument at the close

of Respondents’ case. Application by Respondents for costs. Both the application by the HSE/CFA, and the Respondent’s

application for costs were adjourned to 04/12/2013. The 10th, 11th and 12th of December 2013 was reserved for hearing.

• 20/11/2013 - Order for a report under section.27 of the Child Care Act 1991 by the psychiatrist, cost to be paid by

HSE/CFA.

• 4/12/2013 - Application for costs for the 13/11/2013. Application for a Care Order and an application for the extension

of an Interim Care Order adjourned from the 13/11/2013. The psychiatrist’s report was not available for the 10/12/3013.

Application to reserve costs, pending further submissions. All matters were adjourned to 11/12/3013.

• 11/12/2013 - Application for Costs for 13/11/2013, Application for Care Order, and Application to extend an Interim Care

Order adjourned from 04/11/2013, and a new Application for the making of an Interim Care Order, started on the

04/12/2013 and apparently agreed by the Respondents to be for housekeeping purposes. Acceptance of undertakings not

possible due to expected discharge of child from hospital during currency of order. Interim Care Order was made.

Application for costs of 11/12/2014 added to application for costs for 13/11/2013 as already adjourned into 11/12/2013.

An Order was made for costs for four hours on 13/11/2013. An Order was made that there be no order as to costs

otherwise. Application for a Care Order adjourned to 08/01/2014. No order as to the Application to extend an Interim Care

Order.

• 8/1/2014 - Application for the extension of an Interim Care Order. The Application was granted. The Application for

costs was adjourned to the 29th of January 2014, this is still current. Application for a Care Order was adjourned to

27/01/2014.

6. In the case of HSE v. O.A. [2013] IEHC 172, Ms Justice O’Malley held that the District Court can award costs in proceedings

brought under the Child Care Act 1991, and that the fact that a Respondent could have availed of the services of the Legal Aid Board

for what is usually a relatively manageable fee is not relevant.

In that case at paragraph 65 she said:

"(This case) is, in my view, about the right of an individual litigant who is not on legal aid and has not applied for legal aid

to be treated in the same way as any other litigant who is not on legal aid - without arbitrary, capricious or invidious

discrimination that, on the arguments mounted by the HSE and the Attorney General, could be based only on her

supposed lack of means. The applicant is not seeking to have her representation "funded from the public purse". She

chose her representative, as I accept she was entitled to do as a matter of right, and now seeks what any litigant who

has succeeded (my emphasis) in litigation is entitled to seek- her costs".

She quoted from Henehan v. Allied Irish Banks [1985] WJSC-HC 279 as follows:

"Jurisdiction to award costs is part of the ancillary machinery associated with access of citizens to the Courts [and]

should be construed in the light of the constitutional origin of that right of access."

She also said at the following paragraphs:

“21. Reliance is placed by the HSE on the judgment of the Supreme Court of the United Kingdom in Re T (Children) [2012]

1 WLR 2281 as support for the proposition that a body such as itself, carrying out child protection functions pursuant to a

statutory duty, should in general not be liable for costs.”

“23. The (UK Supreme) Court observed that since the Children Act, 1989 came into force costs had not been awarded

against local authorities in cases where no criticism could be made of the manner in which they had performed their

duties. It considered that the principle in question did not depend on the nature of the hearing. Judicial notice was taken

of the potential impact that costs orders might have on the activities of local authorities and, further, of the fact that

such bodies were financially hard pressed. In its conclusions the Court said (at para. 42):-

"In the context of care proceedings it is not right to treat a local authority as in the same position as a civil litigant who

raises an issue that is ultimately determined against him. The Children Act, 1989 imposes duties on the local authority in

respect of the care of children. If the local authority receives information that a child has been subjected to or is likely to

be subjected to serious harm it has a duty to investigate the report and, where there are reasonable grounds for believing

that it may be well founded, to instigate care proceedings. It is for the Court, and not the local authority, to decide

whether the allegations are well founded. It is a serious misfortune to be the subject of unjustified allegations in relation

to misconduct to a child, but where it is reasonable that these should be investigated by a Court, justice does not

demand that the local authority responsible for placing the allegations before the Court should ultimately be responsible

for the legal costs of the person against whom the allegations are made.". “

“37. The final issue under this heading is whether policy considerations require (my emphasis) the Court to refuse to grant

costs against the HSE in child care proceedings.

38. There is no Irish authority that supports the HSE on the point. The decision of the UK Supreme Court in the T. case is

certainly persuasive (my emphasis) but I feel that I should not follow it (as excluding the right of a successful Respondent

to apply for costs) for a number of reasons.”

And

“63. I accept that child care proceedings under the Child Care Act, 1991 may not be directly analogous to most other

forms of litigation. It is certainly the case that the judge's function is different, in that he or she must adopt a more

inquisitorial role and reach a conclusion based on the welfare of the child beyond all other considerations.

64. 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.”

7. I have been referred to Dunne v. Minister for the Environment [2008] 2 IR 775. At paragraph 17 of the Supreme Court ruling in that

case, Murray C.J. said:

"the Act of 1961 and the Rules of the Superior Courts adopt and incorporate the procedure and practice which applied in

our Courts for a very long time. The rule of law that costs normally follow the event, that the successful party to

proceedings should not have to pay the costs of those proceedings which should be borne by the unsuccessful party has

an obvious equitable basis. As a counterpoint to that general rule of law the Court has a discretionary jurisdiction to vary

or depart from that rule of law if, in the special circumstances of a case, the interests of justice require that it should

do so. There is no predetermined category of cases which fall outside the full ambit of that jurisdiction. If there were to

be a specific category of cases to which the general rule of law on costs did not apply that would be a matter for

legislation since it is not for the Courts to establish a cohesive code according to which costs would always be imposed

on certain successful defendants for the benefit of certain unsuccessful plaintiffs …

27. Where a Court considers that it should exercise a discretion to depart from the normal rule as to costs it is not

completely at large but must do so on a reasoned basis indicating the factors which in the circumstances of the case

warrant such a departure. It would neither be possible or desirable to attempt to list or define what all those factors

are. It is invariably a combination of factors which is involved. An issue such as this is decided on a case by case basis

and decided cases indicate the nature of the factors which may be relevant but it is the factors or combination of

factors in the context of the individual case which determine the issue.”

At paragraph 28 he then quoted from the ruling of the Supreme Court in Curtin v. Dail Eireann [2006] IEHC 27 to the effect that:

"It would neither be possible nor desirable to lay down one definitive rule according to which exceptions are to be made

to the general rule. The discretionary function of the Court to be exercised in the context of each case militates against

such a definitive rule of exception and it is also the reason why previous decisions of such a question are always of

limited value."

In that case, the unsuccessful plaintiff was awarded half the costs of the proceedings in the High Court and half the

costs of the appeal in the Supreme Court against the Attorney General in circumstances where the Supreme Court had

clarified constitutional norms in a core area of constitutional governance as between the three organs of State and in this

sense the case was exceptional and sui generis.

8. Factors similar to some of these re-appeared and were again relied on in recent days in a High Court ruling in Collins v Minister for

Finance [2014] 2 JIC 2701 that because of the importance of the novel question of constitutional law, the weighty issues raised by

the litigation, the importance of the constitutionality of the executive and legislative decisions being judicially determined, and the

plaintiff being a public representative with no personal advantage, and that the decision clarified and provided certainty for the State

in its financial operations, the unsuccessful plaintiff should be awarded 75% of her costs.

9. In O'Keeffe v. Hickey [2008] IESC 72, the Supreme Court refused the State's application for its costs against an unsuccessful

plaintiff and vacated the High Court order that she pay the State's costs in that Court having regard to the number of similar cases,

the complexity of the issues and the role of the State in the relationships which gave rise to the litigation.

10. I have been referred to the case of Veolia Water UK V. Fingal County Council (No.2) [2007] 2 IR 81.

11. This dealt with the difficulties arising in relation to costs both where there are interlocutory proceedings and where hearings both

interlocutory and plenary are prolonged by applications which are ultimately ruled to have lacked merit being made by parties who are

ultimately successful in the overall litigation which sequences required more detailed analysis when it came to dealing with costs than

a simple “winner takes all” rule.

12. Most of the judgement deals with situations where the successive interlocutory stages of the litigation are much more complex

and determinative of the final outcome than in these proceedings but there are some relevant passages, particularly the following:

“2.4 The first is that costs always remain discretionary and anything which is said concerning the principles which ought

normally to apply in considering the award or refusal of costs should be subject to the caveat that the Court always

remains open to the suggestion that, by virtue of special or unusual circumstances, it is appropriate to depart from

what otherwise might be the normal course in respect of an order for costs in a particular case. What I am about to

outline is, therefore, in my view, properly described as the default position which should apply in the absence of such

special or unusual circumstances. It should not be taken as, in anyway, diminishing the Courts entitlement to depart

from such a position in an appropriate case.

2.5 Secondly the overriding starting position should remain that costs should follow the event. Parties who are required

to bring a case to Court in order to secure their rights are, prima facie, entitled to the reasonable costs of maintaining

the proceedings. Parties who successfully defend proceedings are, again prima facie, entitled to the costs to which they

have been put in defending what, at the end of the day, the Court has found to be unmeritorious proceedings. Similarly

it seems to me that the Courts generally (and the Commercial Court in particular) should be prepared to deal with the

costs of contested interlocutory applications on the basis of an analysis of whether there were proper grounds for

bringing, on the one hand, or resisting, on the other hand, the relevant application.”

“2.8 However, as indicated above, it seems to me that the starting point of any consideration of costs has to be

to identify what the “event” is and, thereby, identify the winning party. In the ordinary way, if the moving party

required to bring either the proceedings as a whole (where the costs of the litigation as a whole are under

consideration) or a particular interlocutory application (where those costs are involved) in order to secure a

substantive or procedural entitlement, which could not be obtained without the hearing concerned, then that

party will be regarded as having succeeded even if not successful on every point. The proceedings, or the relevant

application as the case may be, will have been justified by the result.”

The following rulings have been made in criminal cases. “In practice therefore an application for an award of costs will

only fall to be made by an acquitted accused”. See DPP v. McNicholas [2011] IECCC 2 (Cooke J). The Court found in that

case, where the prosecution was dismissed, that there was an imbalance between the nature of the acts complained of,

the pre-trial delay, and a trial in the Central Criminal Court, and awarded the defendant 50% of his costs.

The Court of Criminal Appeal pointed out in DPP V. Bourke [2012] IECCA 66 that there is no provision for costs to follow

the event in criminal cases in the Rules of the Superior Courts, but that the result of a prosecution must be a starting

point. Mr Justice Hardiman in DPP v. Bourke expressed considerable disapproval of the proposition that there were policy

reasons in principle why costs should not be awarded against the State in favour of successful defendants in criminal

matters, pointing out that exposure to costs in civil matters had not discouraged the State from freely instituting civil

proceedings in the past.

13. I must consider the submissions made to me in the light of these rulings. I must bear in mind that the rules governing costs in the

District Court and the rules governing costs in the High Court cases referred to elsewhere in this ruling are not the same. The Rules of

the Superior Courts provide that, in short and generally, in civil matters, costs should follow the event. The Rules in relation to

criminal matters state that the costs are in the discretion of the Court and are silent as to the significance of the event. The Rules of

the District Court provide that costs are in the discretion of the Court. This must be viewed in the light that in the rulings of the

Superior Courts on the subject, while reference is made to the provisions of the Rules of the Superior Courts, they in combination with

the Courts (Supplemental Provisions) Act 1961 are said to “adopt and incorporate the procedure and practice which applied in our

Courts for a very long time” (paragraph 17, Dunne case).

14. I would have found it helpful if Counsel had distinguished between factors which she saw as determinative, if any, and factors

which though not determinative are relevant, which would influence my decision rather than necessarily govern it. Almost everything

can be relevant in some circumstances, but because Counsel neither distinguished nor submitted in the alternative, I must first

address the issue of whether any are determinative.

15. I cannot see that the fact that most of the Superior Court rulings are with reference to cases of unsuccessful plaintiffs rather

than unsuccessful defendants or respondents makes any difference to the principles stated. I am not aware of any applications for

costs by unsuccessful defendants save in the Veolia case. The scarcity of rulings on such situations may be a result of the difficulty

for such parties in asserting their claims, even by comparison with the position of unsuccessful plaintiffs.

16. Counsel refers in a paragraph headed "Approach in other Courts" to Judge Toale's ruling in O.A. of the 2nd of October 2013. At

paragraph 18, having reviewed the nature of the proceedings under the Child Care Act 1991 in paragraphs 12 to 17 Judge Toale said

"Provided respondent parents act reasonably in the context of purposively contributing to the inquiry before the Court, I will be

disposed to exercise a discretion to award costs in their favour".

17. I have difficulty reconciling this with the view stated in the Supreme Court in the Dunne case that:

"There is no predetermined category of cases which fall outside the full ambit of that (discretionary) jurisdiction. If

there were to be a specific category of cases to which the general rule of law on costs did not apply that would be

a matter for legislation since it is not for the Courts to establish a cohesive code according to which costs would

always be imposed on certain successful defendants for the benefit of certain unsuccessful plaintiffs.

Where a Court considers that it should exercise a discretion to depart from the normal rule as to costs it is not

completely at large but must do so on a reasoned basis indicating the factors which in the circumstances of the

case warrant such a departure. It would neither be possible or desirable to attempt to list or define what all those

factors are. It is invariably a combination of factors which is involved. An issue such as this is decided on a case

by case basis and decided cases indicate the nature of the factors which may be relevant but it is the factors or

combination of factors in the context of the individual case which determine the issue.

Accordingly any departure from the general rule is one which must be decided by a Court in the circumstances of

each case”.

18. I do not say that any of the matters referred to by Judge Toale in those paragraphs either can or must be excluded when

considering relevance. The Court has not been referred in this section to any other ruling.

19. I can say that, prior to the O.A. ruling, I ordered the payment of substantial costs to a respondent in proceedings under the Child

Care Act 1991 where I thought the children would be best served by legal assistance to a respondent who was unrepresented. I did

not issue any written ruling on the point at that time.

20. She submits a section headed "Applying the law to the facts in this case". In paragraph 26, she firstly identifies child care cases

as a category different to normal civil matters. I have said that the Supreme Court has said in litigation involving "public interest

litigation" that the rules regarding costs following the event should be abrogated in respect of a class of cases only by the legislature.

Secondly in this section, she seems, as I understand it, to submit that the ruling by the Judge who heard the application under

section 18 of the Child Care Act 1991 refusing the application for a Care Order for six months firstly should govern any ruling in

relation to the costs of the interim proceedings and secondly that, because the Judge who heard the application under section 18

saw reasons why he should award the costs in the proceedings before him to the Respondents, I should award the costs of the

proceedings before me to the Respondents on the basis of his reasons.

21. I have to differ from the Judge who heard the application under section 18 because:

(a) of the Supreme Court rulings on the legislature’s exclusive right to abrogate the rule in respect of certain

categories of cases;

(b) it would mean that I should not exercise my discretion as repeatedly emphasised by the Supreme Court, but

surrender it to the Judge who heard the application under section 18; and

(c) it would be potentially unjust that the award of costs of plenary proceedings would govern the rulings on costs

on interim proceedings before a different Judge where such costs were not expressly, or at least impliedly on some

basis such as for instance in Judge Toale’s ruling, reserved to the plenary hearing, or as described in the Veolia case

having been made part of the costs of the case. The possibility of the necessity of such distinguishing awards of

costs takes up a large part of the Veolia judgement. See paragraph 2.8 in particular in relation to interlocutory

applications for substantive orders.

22. The factors which appealed to the Judge who heard the application under section 18 are relevant but do not seem to necessarily

and of themselves override the rules as stated by the Supreme Court. The District Court (Civil Proceedings) Rules 2014 S.I. No. 17 of

2014 provides that costs generally reserved become part of the costs of the action unless otherwise ordered. There were no costs

generally reserved in these proceedings. She then sets out a series of reasons which I understand her to submit constitute "Special

and unusual circumstances" which would justify an award of costs in favour of her clients who were unsuccessful respondents. She

makes submissions in paragraphs 31 to 37 under the headings of “Constitutional Protection of the Family” and “New Born Baby”.

23. I have previously referred to my uncertainty as to whether she says the factors to which she refers are determinative or are

relevant but not determinative. I have a difficulty into which category she says the factors to which she refers in this section fit. I

must rule on whether they are determinative. It is difficult to say that any factor is not relevant in all circumstances. In so far as she

may be saying that the factors she identifies in these paragraphs are determinative, they seem to me to be basically contrary to the

rulings by the Supreme Court that there are no special categories of cases which the Court should see as subject to different rules

from the usual and therefore are of limited support for her argument. They may have relevance when taken in combination with other

factors.

24. Her submissions in paragraphs 38 to 40 are under the heading of “Time of the Essence”. Paragraph 38 is factual rather than

reasoned. Paragraph 39 is arguing the merits of the substantive application. Paragraph 40 recites the urgency of responding to the

application and Mrs. M’s previous engagement of the solicitor and his consequent familiarity with her history. I note the repeated

propositions by the Respondents in the course of the hearings of lack of relevance of her history in relation to the merits of the case

and have difficulty reconciling that position with the suggestion that the solicitor’s knowledge of her history was relevant to running

the case, unless it was necessary to be familiar with it in order to show it was not relevant.

25. Her submissions in paragraphs 41 to 46 are headed ”The parents’ right to test the evidence of the HSE”. The section quotes from

the O.A. judgement, which emphasises the adversarial nature of the proceedings, and the procedure involved in making the necessary

determination.

26. She then focuses on my apology. I had the opportunity on the 21st of February 2014 after she had drafted the submissions to

explain as best I could that I accept that I should not have said what I said, when what I thought and think, without reservation,

was and is that she was clumsy in her case management as an advocate, for reasons some of which I identified on that date, and

some of which I referred to during the hearings. That clumsiness emerged repeatedly during the hearings, despite her notable skills in

cross-examination and argument. I am aware that she sees no distinction in terms of degree of insult between the first statement and

the second. I see an enormous difference. Detailing the difference I see is unlikely to serve any useful purpose.

27. There was no application for costs that I recall prior to Counsel’s attendance in Court. She applied for costs on the 13th of

November 2013. The only reason she advanced that I felt justified such an order was her reference to the matters referred to by her

at paragraph 40 of her present submissions. Mrs M’s history was relevant to the merits of the case and relevant to the solicitor being

able to act on minimal notice. Neither of them had much time for a measured consideration of their respective positions, including

considering the possibility of acceding to the wishes of the HSE/CFA. I find it helpful though not determinative to consider what I

would have done if the Respondents had had adequate resources to pay the solicitor, and if he had applied for their costs on the 18th

of October 2013. I believe I would have ordered as I subsequently ordered on the 11th of December 2013. I considered the

application for costs made on the 13/11/2013 and eventually ruled on it on the 11th of December 2013. I accepted that in the

circumstances the Respondents should have their costs paid in relation to the solicitor’s appearances on their behalves on the 10th,

15th and 18th of October 2013. No application had been made for costs in relation to those proceedings. The solicitor’s focus at that

time was on securing his clients’ interests as he saw them, rather than on his own remuneration. I did not see that, the proceedings

having concluded on the 18th of October 2013, I could or should make an order in respect of those dates in the course of

proceedings the merits of which were adjudicated on the 13th of November 2013, but I could do so in relation to costs in the matter

then before me, which were ruled on the 11th of December 2013. I did not believe that the Respondents were entitled to their costs

for the 13th of November or the 11th of December, but had a moral claim for costs for the first three October dates. I therefore made

an order in relation to the proceedings before me, notwithstanding the fact that it resulted in additional costs to the HSE/CFA by

virtue of the fact that Counsel would also have to be paid, in order to indulge the Respondents in the interests of justice. My view

was that strictly speaking, the Respondents were not entitled to any costs in relation to the 13th of November 2013 but were

compensated through an award in respect of the proceedings heard that day for the costs of the proceedings in October. Please refer

to the following extract from the transcript on the 11th of December 2013:

“JUDGE: Well I take your point in relation to the short notice and your instructing solicitor's personal knowledge in

relation to her circumstances with which he was familiar, but he made no application for costs that I would recall

following that application. I will allow costs to you in relation to the first day in Court, that I will in a sense indulge

Mrs M but I would see the rest of the case as being conventional in its terms.”

28. I limited the costs to the four hours for two reasons. One was that I thought it was a fair reflection of the time the solicitor had

spent in Court on the 10th, 15th and 18th of October 2013, and the other was that I thought Counsel had prolonged the hearing on

the 13/11/2013 unnecessarily in the light of the statement I had made recorded at page 29 of the transcript, and the discussion

preceding it, regarding hearing evidence I could rely on and that the resolution achieved that day had to await my uninvited

suggestion, recorded at page 119 of the transcript, near the end of the hearing, that I would be open to the renewal of undertakings

in the light of Mrs M’s restored credibility.

29. The costs were allowed to the extent that they were, notwithstanding the clumsiness of Counsel’s management. They were not

limited because I formed an unjustified view in respect of it. My view was justified; my expression of that view did not reflect what I

thought. The limitation of costs reflected what I justifiably thought, not what I unjustifiably said. I implemented the view expressed in

the Veolia case.

30. The solicitor’s re-entry on the 23rd of October 2013 was a result of his reflection after the 18th of October 2013. Time for

reflection by him was time for reflection by the Respondents, and the element of urgency which was the basis for an award of costs

for the 10th, 15th and 18th of October 2013 had passed.

31. Her submissions in paragraphs 49 to 84 are headed “The necessity to contest the evidence”, “Application for a Care Order

Premature” “Failure to consult the Parents or consider less intrusive measures” and “Failure of the HSE to carry out any assessment of

the impact of the proposed care measure”. These sections essentially re-argue the merits of the case. I have to speculate since it is

not made clear for me that these are fundamentally an argument that it was not unreasonable to defend the proceedings. I accept

that it was not unreasonable but it was not successful. I address the relevance of a reasonable but unsuccessful defence later. I

found it necessary to make the orders applied for. That was and remains my view on the merits of the applications for the Interim

Care Orders. That view was endorsed by the High Court, which found there were compelling reasons for the making of the Orders.

32. These submissions essentially argue that matters, which I did not accept in Court as reasons not to make the orders applied for,

should be reasons for an order for costs against the successful party in the litigation. I cannot see the logic in that. She provides

copies of K. and T. v. Finland [2000] 2 FLR 79, Haase v. Germany [2004] 2 FLR 39 and North Western Health Board v. W. [2001] 3 IR

622 with her submissions on costs. I am at a loss to see how these cases provide guidance on controversy regarding costs, or to

understand of what assistance they are save in either asserting reasonableness in defending the proceedings, as addressed, or re-

litigating the merits of the case.

33. I will deal specifically only with the suggestions firstly that the issue of the address was to be entirely excluded following the

hearing of the 18th October 2013 if Mrs M accepted that she had been living mostly in A., and secondly that the issue of the address

was irrelevant. Counsel says in her submissions that it was put to me that I had ”Given her a clean slate” in relation to the address

issue. These issues are not directly related to the costs issue but I feel compelled to put on record both what I actually said, and the

nature of the thinking in the submissions on the costs.

34. The DAR shows that the following discussion took place at the end of the hearing. The words in inverted commas are mine. “I will

make the order to 13 November”. Access was discussed and Ms K said that an application for a Care Order would issue for the 13th of

November 2013 and a meeting would be arranged for the next week to commence assessment meetings. Ms K said she was being

open and honest and let the past be the past and try and move on. “The past is not the past because the past to me demonstrated

Mrs M had challenges in relation to parenting and that had been reinforced by the occasional difficulties that arose during the

pregnancy.” Ms K said that since the case had started Mrs M had put a certain view to the Court and the Court had not found favour

with that view. [I understood this to refer to the address issue.] “In that sense the past will be the past and if Mrs M goes along now

to your client and says that yes, its not true, I was living in A., clearly it’s going to be contradictory (unclear) in due course, but

would it be the case that the view to be formed by the HSE/CFA is going to be mostly how she performs from now on and how she

performed in relation to E. and the pregnancy, rather than what she has been saying in Court?” Ms K said they could not ignore what

was said in Court. “Whatever you say about her in Court I am going to take it as a mistake that Mrs M made at the start of

proceedings, she didn’t see how unlikely it was going to sell, but once she committed herself to it, she found it impossible in her

circumstances to reverse on it, and the fact that she finds it impossible to reverse in itself is of as much interest to me in terms of

rigid thinking as the fact that she said it the first day. When I come to rule on the matter, if I have to, it is not going to be the major

thing, there will be much bigger issues that will arise in relation to her capacity, her parenting, rather than what she said in relation to

this. But she would not want to be found out, that anything else was untrue, in what she would say from now on.” The result of Mrs

M correcting her evidence in this respect at page 98 of the transcript, the issue having been identified by me at Page 29 of the

transcript as significantly needing to be addressed, and the HSE/CFA’s case having concluded on Page 43 of the transcript, was that

I was enabled, at about 6.30pm on the 13th of November 2013, recorded on Page 119 of the transcript, to accept the Respondents’

undertakings as I had done on the 10th of October 2013 but not on the 18th of October 2013.

35. Secondly, the submission states at paragraph 54 that “During her pregnancy, she resided in C. and D. when she wasn’t in CUMH”.

The statement is true, but in that it confirms the allegations by the HSE/CFA and contradicts Mrs M’s sworn evidence, adhered to

despite the Judge rising to permit her to reflect on her position and discuss the matter with her solicitor, it does not dispose of the

issues of dishonesty or instability, but rather re-states and confirms them in a succinct form which blurs their significance, and as if

the form of blurring eliminated the twin issues of dishonesty and instability as if they were factors which were shown to be irrelevant

and therefore a reason why the Respondents should be awarded their costs. I cannot see the blurring as helpful in appreciating the

realities of the situation. I cannot see the logic in saying that the Respondents should be awarded their costs, firstly because they

accept that Mrs M’s sworn evidence was inaccurate, and secondly when the content of the evidence denied by her demonstrated the

instability alleged against her. It is my unavoidable conclusion that the reason she denied it was because she, as much as the

HSE/CFA, saw it as being very damaging to her case. It does not support her claim for her costs.

36. I also see it as appropriate at this point to put on record that my reason for asking another Judge to hear the application for the

order under section 18 was because it was emerging on the 11th of December 2013, as can be seen from the transcript at the end of

the hearing, and confirmed in the Article 40 proceedings, that I was becoming the focus of the Respondents’ attention, as much as

the merits of the case made by the HSE/CFA, and I did not see that process as serving the child as well as he/she was entitled to be

served.

37. She concludes with paragraphs 85 to 92. At paragraph 85, she says that the High Court in “O.A.” stated that reasonableness is a

key consideration when deciding whether or not to award costs in child care cases. That quotation is capable of creating a

misapprehension unless it is put in the context in which it was stated. The full text of paragraph 60 of Ms Justice O’Malley’s

judgement is as follows:

“The entitlement to costs is a separate matter that may or may not arise on the facts of an individual case as

determined by the judge. Reasonableness is a key consideration - costs may be awarded in favour of the HSE if a parent

defends a case unreasonably”

By identifying the issue as a separate matter, Ms Justice O’Malley makes it clear her succeeding remarks are obiter. I have

a difficulty then in relying on a relatively casual statement made in a certain context to counter the force of the

considered, expressed, and repeated rulings of the Supreme Court on the issue.

38. Further, to say that “Costs may be awarded in favour of the HSE if a parent defends a case unreasonably” begs many questions.

The statement has no necessary place in either the sequence of the logic of the ruling in question or in deciding whether parents

should be awarded their costs when they defend an application reasonably but unsuccessfully. In fact, it rather reinforces the

contrary proposition, that the successful party in litigation is prima facie entitled to be awarded its costs against the unsuccessful

party, even though it caries the implication that costs will not be usually awarded against an unsuccessful parent.

39. She relies on their impecuniosity at paragraph 86, and essentially relies on this in pararaph 90. I have not been referred to any

ruling in any Court that costs must be awarded to unsuccessful parties because they cannot afford representation, but only Ms

Justice O’Malley’s quoting of Magee v. Farrell [2004] 4 IR 703 that there is no constitutional right to legal aid in civil case, in so far as

this is relevant to equality of arms. It may be relevant in some cases. In paragraph 87 she submits that complex legal issues arose in

the course of the proceedings. I accept that legal issues were raised by the Respondents but I do not see that they were in fact

complex or original or defining. That I did not emphasise the difference between the requirements of section 17 and section 18 of the

Child Care Act 1991, and that section 17 requires a decision by the HSE/CFA to apply for a Care Order as a pre-condition to applying

for an Interim Order are not complex issues. In paragraph 88 and the first part of paragraph 89, she essentially enrols the parents as

supporting the Court in identifying the best interests of C. Her point is well-made if in fact it works that way. The Judge may form the

belief that a parent has personal resources which can be of value to the child if unblocked and that that unblocking is likely to be

achieved only with the assistance of legal representation. The Respondent may be unrepresented, and it may appear that the

proceedings will be significantly prolonged because of the absence of representation. In these circumstances, the time of the Court

and the eventual expense of the applicant may be reduced by ordering the applicant to pay the costs of an impecunious respondent

by providing the resource to pay for representation, if such impecuniosity is the bar to representation. The parents may, with

experienced legal assistance, identify services for the child or for themselves not identified by the HSE/CFA and which could avoid the

necessity for a Care Order or reduce its length or improve the life of the child even if it is in care. These are three examples. The

range of possibilities is endless.

40. I cannot say that any such possibility existed in this case. A potential for development such as I firstly described was entirely

lacking on the part of the Respondents at all times. They made a point in the single issue of the potential damage to C of separating

him/her from his/her parents. They obtained a report from Dr M.G. on this but did not call her. That is very limited support of an

enquiry where all the rest of the approach was as I describe below.

41. The solicitor on 18 October did accept that the HSE/CFA had concerns but gave no indication then or at any time that his clients

thought there was any foundation to such concerns. The sequence which followed after the 18th of October 2013 was very far from

any possibility of considering the possibility of any foundation for concern, which would have been a sine qua non for a program which

could have created a structure on which the Respondents could have built a safe situation for C in cooperation with the HSE/CFA.

The prospects of a Supervision Order contributing to the welfare of a child are much enhanced if the parents accept that there is

some basis for concern by the HSE/CFA. The Respondents took up a defensive posture from which it appeared to me they were

incapable of being moved. The closest position taken by the Respondents on the claims by the HSE/CFA was to say that they

recognised that the HSE/CFA would have an interest in Mrs M’s care of the child as a result of her history; but totally rejected that

there was in fact any reason for concern, despite her offer to undertake any assessment or counselling proposed.

42. The possibility must be considered in those circumstances that the Respondents saw the offer of a consent to a Supervision

Order based on living in D. as a mechanism to avoid the making of a Care Order and the scrutiny of N. Social Work Department rather

than because they actually accepted the existence of the slightest basis for concern. I saw the offer of such a consent as

inadequate partly due to concerns I had about Mrs M’s stability and partly due to likely delays in the matter being taken up and quite

possibly not adequately attended to in D. due to competing pressures on services, and carrying a ruling from C. District Court that the

case was not sufficiently concerning to justify a Care Order. The HSE/CFA created a new protocol on transfers between areas in

2012. The fact that such an exercise was necessary shows that there was a basis for concern. I am not aware how successfully the

new protocol has worked since commencement. The Ombudsman for Children recently released a study which identified problems and

delays in transfer between areas as an issue of concern.

43. My acceptance of their undertakings on the 11th of November 2013 was in spite of, not because of, the way the case was run. If

I could have seen any advantage for the child I could have exercised my discretion accordingly, but neither at the time could I, nor

on reviewing the transcripts can I, see any opening to such a concept. The content of paragraphs 49 to 84 of these submissions

shows that the approach of the Respondents in appearances before me, at least from the 11th of November 2013 up to today, is to

challenge the existence of every single concern expressed by the HSE/CFA.

44. Not to award them their costs is not punishment for disagreeing with the HSE/CFA, but a result of the fact that neither the

advantage that might have been available for a child, if its parents had access to legal assistance without incurring expense that

they could not afford, and which would have allowed me to exercise my discretion in relation to costs arose, and was never going to

arise in this case; nor was there any other sufficient ground for departing from the usual rules or conventions in relation to costs.

That this is the position is demonstrated by the fact that in the compiling of the submissions to which I am now responding, the

merits of the case are being re-argued in their entirety when they have been decided and my view on those merits approved on

appeal to the High Court.

45. I do not know what passed between the Respondents and their legal advisers and I am not entitled to know. All I can say is that

having the legal assistance they did does not seem to have enabled the Respondents to have gained any alternative perception of

the situation than they had at the start and no personal resource that might have been cultivated with assistance can be identified.

This is not to say that defending the proceedings was unreasonable.

46. The second part of paragraph 89 is re-stating the point made in paragraphs 86 and 90. Paragraph 91 is a re-statement in a

combination of the “reasonableness” arguments in paragraph 85 and the “child’s best interests” argument of paragraphs 88 and 89,

and does not add to the points made. Paragraph 92 is a conclusion to be drawn if the submissions in previous paragraphs are well-

founded, which I find they are not.

47. I have considered Ms K’s submissions. She recites the history of the proceedings, and refers to the OA case, the Dunne case, the

Curtin case, and the Veolia case. She refers to the prevalence of this type of proceedings, the inquisitorial nature of them with their

adversarial procedure, and the provisions of section 3 and section 16 of the Child Care Act 1991. She says that the fact that the

HSE/CFA acts on foot of a statutory obligation is relevant when considering whether to make an order for costs in favour of a,

presumably successful, respondent, which would presumably apply a fortiori in respect of an unsuccessful respondent. She refers to

the terms of sections17 and section 18 of the Child Care Act 1991. She submits that my ruling on costs should not be governed by

the ruling by the Judge who heard the application under section 18 on costs, especially where the standards of risk to be proved are

different and where costs were not reserved to the hearing of the application for the section 18 Order. She refers me to the position

on costs in the Article 40 proceedings and suggests that I should exercise my own discretion rather than adopt Judge Toale’s

reasoning.

48. I have considered Ms K’s further submissions. She points out the apparently persistent difficulty the Respondents have in dealing

with their business in a coherent and respectful way, in that they stated in Court they wished to apply to extend time for appealing

my order as to costs of the 11th of December 2013, without notice to either the Court or Ms K, nor even on that date reducing it to

writing. She refers to such a notice being served on the 7th of March 2014. I understand it was received by the Family Law Office on

the 11th of March 2014. She refers to her previous point that my order of the 11th of December 2013 was not appealed to the Circuit

Court, but sought to be set aside in an Application under Article 40 of the Constitution, in the course of which both the merits of the

Application were dismissed, and the undesirability of the Article 40 proceedings were referred to.

49. I assume the word “not” is omitted after the word “choosing” in paragraph 8 of her submissions. On this basis, she refers me to

the requirements necessary to found an application to extend time for appeal, and submits that they are not met, and further that it

would be unduly prejudicial in terms of expense to her clients if time were extended. She submits that certain matters regarding costs

are res judicata. She also makes submissions responding to Counsel’s reference in her submissions to my apology, and the view

expressed by Mr Justice Peart. She finally recites her view of what happened in relation to costs on the 11th of December 2013 and

the significance of those events.

50. Most of these issues have been covered in my discussion on Counsel’s very comprehensive submissions. The difference in the

requirements of section 17 and section 18 and the question of extending the time for appeal are the main additions. The reference to

the difference between section 17 and section 18 seems to me to be essentially responding to paragraph 29 of Counsel’s submissions

which I have already dealt with.

51. Notwithstanding the good law to which Ms K refers, I have to consider the possibility that a large part of the difficulty in this case

has arisen from the possible lack of experience of the Respondent’s solicitor in such proceedings, and a certain lack of experience in

such proceedings in this Court. The solicitor sought to re-enter the matter on the 23rd of October 2013 without notice to the Court

or any written notice to the HSE/CFA. The Respondents sought to obtain access to HSE/CFA files by a Freedom of Information

request instead of the much more rewarding and extensive results which would have followed a disclosure request to the HSE/CFA

solicitors. No thought was given to Mr W’s standing as guardian until after I had identified the issue. The additions to the applications

for costs should have been properly notified in good time prior to the 20th of February 2014 to Ms K and the 21st of February 2014 to

the Court. The applications for extension of time for appeal should have been properly notified in good time prior to the 21st of

February 2014. It was the solicitor’s role to take instructions from his clients after the 11th of December 2013. I cannot say whether

the solicitor discussed an appeal to the Circuit Court with his clients after the 18th of October and 11th of December 2013.

52. I then have to ask myself whether, notwithstanding the cases referred to by Ms K, justice would really be served by refusing to

extend time for appeal in relation to the costs. Can I say that effectively, the Respondents were given real opportunities to hear the

full details of, and make decisions about, their options after those dates and, having done so, decided not to appeal the orders of the

18th of October and 11th of December 2013? If they did, there would be a strong argument that I should not extend the time. If their

advocates tell me that they were not fully advised, that might alter matters. Given the difficulties in case management, including the

reservations expressed by Mr Justice Peart on the appropriateness of the Article 40 proceedings, I am inclined to think as quite

possible that the Respondents may not have had the opportunities they were entitled to, and on that basis, I will extend the time for

appealing my order of the 11th of December 2013 by ten days from today.

53. I am also influenced by the facts that firstly if I refuse the application to extend time, that decision can then be appealed, and

secondly it is possible that my ruling on costs today will be appealed. The matter would wind up in the Circuit Court anyway.

54. Some of the main points that arise are as follows.

i. The basic rule is, as set in the District Court Rules, that the costs are in the discretion of the Court.

ii. There is strong legal support for the proposition that costs should follow the event.

iii. There is an “event” in proceedings under the Child Care Act 1991, at least at this stage, as there is in other civil

proceedings.

iv. Notwithstanding the basic rule, it is conventional in many private family law proceedings to make no order as to

costs.

v. Ms Justice O’Malley found the thinking in the English “T” case persuasive, that regard is to be had to the

structure of child care litigation, where the Applicant places allegations before the Court, and to the potential

impact that costs orders might have on the activities of (the relevant statutory authorities). This is close to the

thinking in the Great Southern Sligo case, that statutory bodies undertaking proceedings required by statute may be

reluctant to bring proceedings thereby risking exposure to orders for costs being made against them, so that they

might be less willing to bring proceedings when the public good would require that they should do so. Mr Justice

Hardiman in DPP v. Bourke expressed considerable disapproval of the proposition that there were policy reasons in

principle why costs should not be awarded against the State in favour of successful defendants, pointing out that

exposure to costs in civil matters had not discouraged the State from freely instituting civil proceedings in the past.

vi. The structure of the proceedings is somewhat closer to a criminal prosecution than to private family law in that

in these proceedings a Respondent is brought into Court at the behest of a state authority, rather than where, at

least theoretically, equal parties are litigating their private interests. Costs are sometimes awarded to successful

defendants on indictment, but an award of costs to an unsuccessful defendant in criminal proceedings is almost

unheard of.

vii. It might be that costs should be awarded against the HSE/CFA where it succeeded in an application for an order

under the Child Care Act 1991 where the proceedings were conducted in an oppressive or other unjust or

undesirable way or other exceptional circumstances applied.

viii. The Supreme Court has said that it would be undesirable to make a list of the all the relevant factors.

55. I will say therefore only that such factors as I have been able, with the assistance of the submissions and the cases, to identify

do not provide a reason to act contrary to the usual rules in the facts of this case.