District Court awards legal costs to foster carer against Agency for complex child care reviews.

[2016] IEDC 01

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

M. RESPONDENT

-AND-

G. RESPONDENT

CHILD CARE ACT, 1991- SECTION 47, SECTION 18 (1)

IN THE MATTER OF a Child, Child A

1. This is an application for legal costs on behalf of the Notice Party, (M), who is also the maternal grandmother and approved Foster

Carer to Child A, the subject of the proceedings.

HISTORY OF PROCEEDINGS

2. In winter 2013, Child A was made the subject matter of a Care Order until his 18th Birthday to expire in summer 2022. The Notice

Party had been joined in the Care Order proceedings and had participated with legal representation and had been awarded legal costs

against the Agency in the Care Order proceedings.

3. At the Care Order hearing, when the Care Order itself was made, the Court made a number of Directions under section 47 of the

Act including, interalia, that;

a. The case be re-entered by the Agency in the event of the placement with the Notice Party and the partner of the

Notice Party not being approved by the Foster Care Committee within 12 weeks of the hearing in winter 2013,

b. The case be listed before the Court for progress in care in winter 2014.

4. At the Care Order hearing, costs were awarded by the Court against the Agency and in favour of the Notice Party of, inter alia,

purposive participation in the proceedings. The Notice Party remained as a Notice Party for the purpose of the reviews ordained by

the Directions of the Court at the Care Order hearing and remained legally represented.

APPLICATION BEFORE THE COURT

5. This application, now for costs, includes the legal costs of the Notice Party in regard to the Court reviews since the making of the

Care Order.

6. I have received written submissions from the Agency solicitor and the solicitor for the Notice Party and heard oral submissions in

January 2016. I paid particular attention in relation to the application of the law as set out in the Supreme Court decision of Child and

Family Agency v O.A. [2015] IESC 52 delivered on the 23rd day of June 2015 [2015] IESC 52 and in particular the Judgement by Mr

Justice Mac Menamin (hereinafter referred to as the OA Decision) as to how the discretion of this Court should now be exercised as

regards this application in light of the Supreme Court guidance set out in the OA Decision.

FINDINGS OF THE COURT

7. I find as follows;

a. It is not unprecedented, but it is unusual THAT the Foster Carer was joined as a Notice Party to the Care proceedings,

b. THAT the Foster Carer remained a Notice Party for the purposes of the Court reviews/ re-entries,

c. THAT no objection and/or query was raised by the Agency ( as per the submissions made to this Court) at the time of

the making of the Directions pursuant to section 47 on foot of the Care Order to the Notice party remaining as a Notice

party in relation to the Directions,

d. THAT this combined set of circumstances was unusual and exceptional in the context of Court proceedings pursuant to

the Child Care Act 1991.

e. THAT the Notice Party was awarded the legal costs of representation in the Care Order proceedings and this order was

not appealed by the Agency (as per the submissions made to this Court). It is noteworthy that the Care Order on foot of

which the order for costs was made incorporated the Directions pursuant to section 47 of the Child Care Act 1991. These

Directions have given rise to the incurring of the legal costs by the Notice Party that are now the subject matter of this

application,

f. THAT these types of proceedings are by their very nature complex involving constitutional, convention, statutory law

and the welfare of the child,

g. THAT the interests of justice are best served when parties to the proceedings are legally represented.

DECISION OF THE COURT

8. I find in favour of the Notice Party for the above foregoing findings of the Court. I make this finding exercising my discretion on the

facts and circumstances of this particular case pursuant to the law applicable as to how this Court is to exercise it’s discretion in

regard to the application for costs set out in particular in the OA Decision.

9. I find that the costs of the Notice Party are to be discharged by the Agency in relation to the reviews as per the Directions from

the finalisation of the Care Order up to date said costs to be taxed in default of agreement.

Marie Quirke

District Court Judge