District Court awards costs against CFA for exceptional complexity and injustice to vulnerable parents in care proceedings.

[2016] IEDC 03

AN CHUIRT DUICHE THE DISTRICT COURT

THE CHILD AND FAMILY AGENCY

APPLICANT

-AND-

D

RESPONDENT

INTRODUCTION

1. This is an application for costs by the solicitor for the mother in proceedings commenced by the Child and Family Agency (CFA) in

summer 2013 seeking an Interim Care Order in respect of the three youngest children of a large sibling group born to the mother. I will

refer to these three children as Child 1, Child 2 and Child 3 to preserve their right to anonymity in the proceedings. The mother and

her children were known to the Agency since 1994. The CFA sought a Care Order in respect of the three children, the subject matter

of the proceedings, until they each reached the age of 18 years. The Interim Care Order was granted in summer 2014 and extended

on seven occasions before a Care Order was granted in respect of the three children in spring 2014. The case was complicated by

many factors and was listed in Court on eighteen occasions between summer 2013 and the hearing of the Care Order. It also came

before the Court subsequent to the making of the Orders.

2. Some of the applications, in respect of the three youngest children, related to the hearing of the Interim Care Orders and

extensions of those orders pending the determination of the Care Order applications. Several court events were to resolve

applications under section 47 of the Child Care Act 1991 on questions affecting the welfare of one of the three children, or to

determine the Guardianship by one of the fathers of the children. There were several listings for Court Reviews regarding orders

already granted. Re-entry was a necessary consequent on placement breakdown. One listing related to case management. Several

listings were perfunctory adjournment applications regarding the question of ‘costs’ pending the determination by the Supreme Court

in the case of Child & Family Agency v OA [2015] IESC 52 by the Supreme Court in mid summer 2015.

3. In this case, the Court appointed a Guardian Ad Litem in summer 2013 following the Agency’s application for an Interim Care Order

in respect of the three children. Before making this appointment, the Court was satisfied in the circumstances that it was necessary

to do so in the interests of the children and in the interests of justice.

4. The three children each have a different father and each is placed in separate placements. Child 1 was a very troubled child and

the Guardian Ad Litem brought his views to the Court and was at pains to independently establish his welfare interests with

recommendations. Child 2 and Child 3 were pre-verbal and so the Guardian Ad Litem’s role largely related to the welfare interests of

the two younger children.

5. Section 24 of the Child Care Act of 1991 states:

“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.”

6. Section 26 of the Act provides that:

“26.(1) If in any proceedings under Part IV or VI the child to whom the proceedings relate is not a party, the court may, if

it is satisfied that it is necessary in the interests of the child and in the interests of justice to do so, appoint a Guardian

Ad Litem for the child.

(2) Any costs incurred by a person in acting as a Guardian Ad Litem under this section shall be paid by the health board

concerned. The health board may apply to the court to have the amount of any such costs or expenses measured or

taxed.

(3) The court which has made an order under subsection (1) may, on the application to it of a health board, order any

other party to the proceedings in question to pay to the board any costs or expenses payable by that board under

subsection (2).

(4) Where a child in respect of whom an order has been made under subsection (1) becomes a party to the proceedings

in question (whether by virtue of an order under section 25 (1) or otherwise) then that order shall cease to have effect.”

7. Both the CFA and the Guardian Ad Litem were represented in the proceedings before the Court. The mother was legally

represented by her solicitors, who employed counsel from time to time throughout the proceedings. The father of Child 1 did not

participate in the care proceedings. The father of Child 2 was represented by his solicitor. The father of Child 3 was also represented

in the care proceedings by his Legal Aid Board solicitor.

CIRCUMSTANCES IN CASE

8. The mother, in this case, was vulnerable for many reasons. She had been in care herself from an early age for a formative period of

her childhood. Her older children were all in the voluntary care of the Agency because she was unable to meet their needs. A pre-

birth conference was held before the birth of Child 1 in 2007. However, a decision was taken to support the mother in the care of

Child 1. Initially, the mother and Child 1 resided in supported accommodation, but after several months the mother and Child 1 became

homeless. For a period, they resided with the father of Child 1 in the home of the paternal grandparents and then became homeless

again. When Child 1 was several months old the Agency convened a Child Protection Case Conference and a Parental Capacity Risk

Assessment to include a cognitive assessment by a Senior Clinical Psychologist. In 2008, the Principal Clinical Psychologist determined

that the mother had a mild intellectual disability, but at that time was coping adequately with the care of the child who presented as

a securely attached and relaxed child at the date of assessment. The Psychologist highlighted that should the mother’s life become

more complex or become destabilized in the future that additional demands on her might well exceed her ability to cope. The mother

was involved in two subsequent relationships with the respective fathers of Child 2 and Child 3.

9. Prior to the commencement of the hearing of the Care Order Application, in respect of the three children, the Court was advised

that the application would proceed on an uncontested basis in terms of the threshold for the making of the Care Order and that the

evidence would focus on disposition and welfare.

10. The Care Order hearing, in respect of each of the three children, was completed in one day. The Court heard evidence from the

allocated social worker who had been assigned to the case since 2012. The Court also heard evidence from the mother and the

Guardian Ad Litem. In the cases relating to Child 2 and Child 3 neither father gave evidence, however each meaningfully participated

through their legal representatives in the relevant Care Order hearing. The Court considered the expressed views of Child 1. The Court

was satisfied, on the evidence adduced, that there were reasonable grounds for believing that the threshold criteria set out in section

18(1) (c) were met and that each of the children’s health, development or welfare was likely to be avoidably impaired or neglected

unless the Court made a Care Order in respect of each child.

11. The Guardian Ad Litem, in representing the interests of the three children and the ascertainable views of Child 1, was concerned

regarding the individual care needs of each of the three children. While she supported the making of a Care Order in each case until

each child attained the age of 18 years she was concerned to raise the history of the management of the children’s care by the CFA

as part of their welfare interests. She expressed this concern in autumn 2013 and sought the permission of the Court under section

47 of the 1991 Act in order to lift the in camera rule to facilitate a referral of the relevant areas of concern to the Ombudsman for

Children, HIQA and the Minister for Children. The Agency acknowledged the need to conduct an internal review of the management of

the case and requested the postponement of section 47 application until such time as this internal review was conducted.

12. The Court made Care Orders under section 18, in respect of each of the three children, made Orders under section 37 regarding

access and made six directions under section 47 of the Act.

13. The Guardian Ad Litem application under section 47, regarding the lifting of the in camera rule, was adjourned to spring 2014 by

consent. The costs application was adjourned to early summer 2014 to fix a date for hearing.

14. The internal review was completed in spring 2014. At this time, the Guardian Ad Litem proceeded with the application to lift the in

camera rule so as to permit a complaint being made to HIQA and the Ombudsman for Children. The Court, having listened to the

views of each of the parties, considered the cases of HSE v McAnaspie [2012] I.R 548 and HSE v SC and AC [2013] IEHC 516, and

having been satisfied that appropriate safeguards would apply in terms of the preservation of the anonymity of the parties and Child

1, exercised its discretion and lifted the in camera rule permitting the Guardian Ad Litem to refer her concerns as to the management

of the case to the Ombudsman for Children in respect of Child 1 only.

15. The costs application was adjourned from time to time to await the decision of the High Court and subsequently the Supreme

Court in the case of Child and Family Agency v OA [2015] IESC 52.

16. The case came back to the Court regarding placement breakdown in respect of Child 1 and in order to review the case of Child 1

having regard to the Clinical Paediatric Neuropsychology Assessment Report in respect of Child 1.

17. Throughout this case, to the conclusion of the hearing and in subsequent applications to the Court, the mother was represented

by her legal representatives who sometimes employed counsel. Her solicitor argued the entitlement to the costs issue.

18. The role of the father of Child 2 was necessarily of a more limited nature in the context of the Care Order hearings as he was the

father of only one of the children. The father himself was in the care of the Agency as a child. He co-operated with a Parenting

Capacity Assessment which stalled for a period as reports were sought from two hospitals regarding an acquired brain injury which he

suffered as a child. He fully co-operated with the Agency in the completion of the Parental Capacity Assessment. He also engaged

with access to Child 2.

IS THIS AN APPROPRIATE CASE TO AWARD COSTS?

19. The matter at issue in this case is how the Court should exercise its discretion whether to award costs as sought by the mother

or the father of Child 2.

20. It was entirely proper for the CFA to commence the proceedings and they had a statutory obligation to do so. The Agency

complied with the Practice Direction of the DMD. The overriding objective of this Practice Direction is to enable the Court to deal with

each case in a manner which is just, efficient and cost effective. The Agency was fully compliant with this Practice Direction and in

particular paragraph 17 and prepared a Statement of Facts clearly identifying the issues to be addressed by the Court in the hearing

and identifying the evidence to be adduced in support of those issues. An amended Statement of Facts was agreed by the legal team

of the mother and the father of Child 2 who conceded the existence of the threshold criteria and admitted the cognitive elements of

the Parental Capacity Assessments without formal proof. The Court determined the issue of proportionality and the duration of the

Order on the evidence adduced.

21. The end result of the core CFA application was that it obtained a Care Order for each of three children on a consensual basis at

the date of hearing. The legal representatives of the mother and the father of Child 2 and Child 3 secured Directions under section 47

of the 1991 Act on sundry questions affecting the welfare of the relevant children.

22. The actions of both the mother and the father of Child 2 were reasonable in order to advance their respective case and were

consistent with professional conduct and the efficient running of the case.

ROLE OF THE GUARDIAN FOR THE CHILDREN

23. The Guardian Ad Litem requested a full chronology of the known concerns about the mother’s parenting capacity. Her rationale in

the context of historical concerns was that when the basis of the CFA’s case relates to previous and ongoing chronic neglect of

children and parental capacity was identified as a historical feature of the case then the Agency should also identify all past issues as

well as interventions and supports offered to remediate identified deficits in the past. She wished to examine the Social Work

Department’s responses to historical concerns in order to better inform herself, as the children’s Guardian Ad Litem, of the totality of

the children’s experience of harm and neglect and to assess whether supports offered in the past were effective in ensuring changes

to assure the welfare interests of the three children.

24. The Guardian Ad Litem was tenacious in advancing her application under section 47. In spring 2014, she processed her application

to lift the in camera rule to permit a referral by her as the children’s Guardian Ad Litem to the Ombudsman for Children and Others.

25. The Guardian Ad Litem secured an Order under section 47 of the 1991 Act, permitting a referral to the Ombudsman for Children, in

respect of Child 1 only. Having undertaken a preliminary examination the Ombudsman for Children noted that the concerns raised by

Guardian Ad Litem in the referral were legitimate, but determined that these concerns would not be investigated by the Office of the

Ombudsman for Children any further noting that the CFA had already undertaken an Internal Review which identified redress measures

and reflective practice measures which had been implemented.

ARGUMENTS ADVANCED REGARDING COSTS

26. The costs application by the mother’s legal team and the legal team of the father of Child 2 is premised on the inordinate burden

that would be placed on their respective clients if they were obliged to bear their own costs in the proceedings having regard to the

length and complexity of the proceedings. The essence of the argument is that in the interests of justice the particular and distinct

features of this case brings their application for costs within the parameters of the Supreme Court decision on costs in Child and

Family Agency v OA and establishes their entitlement to costs.

27. It is argued by the mother’s legal representatives that one of the historical issues raised by the CFA and by the Guardian Ad Litem

on the application for the Interim Care Order in respect of Child 1, Child 2 and Child 3 included issues around the death of a infant

child born to the mother several years before the birth of Child 1. This fact was exceptional and required them, as her advisors, to

carefully assess the Coroner’s Report and the other circumstances of neglect and lack of capacity which it was alleged established

the threshold grounds for the making of an Interim Care Order.

28. They submitted that a Parenting Capacity Assessment based on the cognitive assessment of functioning, which was undertaken

in 2008, put the Agency on notice of the high support needs of the mother. In addition to which her vulnerability should have been

considered by the Agency in discharging their obligation to her and her children having regard to the principle that it is generally in the

best interests of the child to be brought up by his or her own family. They were required to make submissions on the need to procure

an updated Parental Capacity Assessment in advance of the hearing of the full Care Order as the Agency intended to rely on the

assessment of capacity undertaken in 2008. They advanced submissions around the time frame and best practice on relying on a

2008 Parenting Capacity Assessment to establish their client’s capacity in 2014.

29. They also submitted that at the date of the initial Interim Care Order application by the Agency the Presiding Judge noted that

the application related to three children and that due to the vulnerability of the mother and other surrounding circumstances he

awarded costs to the mother in respect of the hearing of the Interim Care Order. The Agency did not appeal that Order. They

therefore argued that it was reasonable for them to expect that the mother’s costs for the Care Order would also be paid by the

Agency.

30. It was also submitted that the application by the Guardian Ad Litem to relax the in camera rule so as allow her to refer her

concerns about the services offered to children to the Ombudsman for Children and others triggered an internal review of the case by

the Agency as to the standard of the services offered to their client and her children.

31. Accordingly they argued that all of this made the case both unusual and exceptional and that an injustice would be visited on

their client if she was left to bear the costs, having regard to the length and complexity of the proceedings and these exceptional

issues.

32. The Solicitor for the father of Child 2 also argues that the length and complexity of the proceedings makes this an unusual and

exceptional case which would visit an injustice on his client if he was left to bear the cost of the proceedings. This solicitor was

invited by the Presiding Judge to represent the father in circumstances whereby he had sought civil legal aid under the Legal Aid Act.

However, no solicitor from the Board was available to assist him in the context of the Interim Care Order application. The Agency

discharged the costs of that application and his client continued to rely on his representation in the extension of the Interim Care

Order and in the Care Order proceedings and application of the Guardian Ad Litem under section 47 of the Act.

33. The issue of costs was adjourned from time on consent and it was submitted that at no time was his client alerted to the danger

that he would be personally liable to pay his own legal costs.

34. Solicitor for the Agency conceded that this may well have been an exceptional case on the facts involved, but the legal issues

engaged were not exceptional. He noted that the CFA was obliged to make full disclosure of the existence of the Coroner’s Report and

the issues around the death as the Coroner’s Report were not opened to the Court at the hearing of the Care Order. An updated

Parental Capacity Assessment with a fresh cognitive assessment was undertaken in advance of the Care Order Application and no

particularly complex legal issues were engaged in this regard.

APPLICATION OF DISCRETION

35. The costs incidental to a proceeding or a step in a proceeding is at the discretion of the Court. However, in the ordinary way

costs follow the event and to award costs against the CFA is an unusual step which is exceptional. The CFA and Guardian Ad Litem

were largely successful in the proceedings and if I am to depart from the general default position, and to award costs in favour of the

mother and the father of Child 2, I must clearly set out my reasons for doing so.

36. This case was lengthy and had to be heard serially in respect of the three children as it involved three fathers (the mother’s legal

advisors were common to all three cases). The mother and father were particularly vulnerable parents. The children form part of a

larger sibling group, many of whom were in the care of the Agency. The three children, the subject matter of the proceedings, were

each in separate foster placements making access a discreet complex issue. Child 1 has exceptionally complex needs. The Agency

relied on historical cumulative neglect and significant portions of each social work report set out in this history.

37. The Guardian Ad Litem raised very serious concerns regarding service provision to the children and by extension to their mother.

The Agency undertook an internal enquiry on the issues raised and adopted systematic changes in response to the concerns raised.

38. Section 26 (2) of the 1991 Act provides that any costs incurred by a person acting as a Guardian Ad Litem are to be paid by the

CFA and the CFA can ask the Court to have the quantum of costs measured or taxed. Section 26 (3) further provides that the CFA

can ask the Court to order any other party to the proceedings to pay any costs or expenses payable by that board under subsection

(2). To this extent, the Act provides that the Court may determine by whom and to what extent the costs of the Guardian Ad Litem

shall be paid.

39. The children were not made a party to the proceedings under section 25 of the 1991 Act, but in accordance with section 26 the

views of Child 1 and the interests of all three children were brought to the attention of the Court by the Guardian Ad Litem. The

Guardian Ad Litem was legally represented in the proceedings and brought applications to the Court under section 47 of the 1991 Act

and also through her legal representative, who participated at every stage of the proceedings as if she was a party, seeking

disclosure, cross examining witnesses and making arguments and submissions to the Court etc.

40. Neither the CFA nor the Guardian Ad Litem is immune from the consequences of litigation and it is not necessary that the CFA or

the Guardian Ad Litem must have acted in bad faith before the costs may be awarded against them. Each is accountable for the

litigation and the manner in which it engages in the litigation or otherwise a sense of immunity from costs could have the potential to

blind a party or non-party litigant to the fact that other litigants are incurring costs and expenses to be involved in the Court

process.

41. I am satisfied that the CFA did not pursue this litigation without focus or without an evidentiary basis. I am satisfied that the CFA

acted in good faith and with respect to the rights of the parents and the children: they did not waste the Court’s time.

42. The Guardian Ad Litem raised the issue of services provision for the children as early as summer 2013 and was successful in

seeking the Courts permission to make a complaint to the Ombudsman for Children.

43. The CFA consented to the adjournment of the Guardian Ad Litem section 47 application and agreed to undertake an internal

inquiry with regard to service provision to the three children, the subject matter of the proceedings. The CFA social work team and

the Guardian Ad Litem disagreed on the necessity for involving the Ombudsman for Children and others. However, the CFA consented

to the adjournment of the Guardian Ad Litem application and further agreed to open its files in respect of the older children in its care

to the Guardian Ad Litem to allow her to review the files to inform decision making in the interests of the three children.

44. This was a case of exceptional factual complexity. The CFA was required to carefully balance the safety of the children against

unnecessary or heavy handed intrusion into a parent’s life. This was a delicate balance in circumstances where the mother and the

father of Child 2 were each very vulnerable. By voluntarily opening their historical files to scrutiny by the Guardian Ad Litem for the

three children, the subject matter of the proceedings, the CFA conceded the reality of this complexity in summer of 2013. The

Guardian Ad Litem having raised the issue of the CFA’s due diligence in safeguarding the children, the legal teams for the parents

were entitled to consider the totality of the matters in issue in order to advise their clients on issues of threshold, proportionality, and

disposition.

45. I am satisfied that the conduct of the legal teams for the two parents was appropriate and fair. I am also satisfied that no

unfairness arose by reason of the conduct of the proceedings by the CFA. I am satisfied, however, that due to the constellation of

circumstances and issues presenting in this case that a particular injustice would be visited on the mother and on the father of Child

2 if each was left to bear the costs of the Care Proceedings which became both lengthy and complex due to circumstances beyond

their control. In the circumstances, therefore, I believe that this is an appropriate and exceptional case in which to award reasonable

solicitors costs against the CFA in favour of the mother and the father of Child 2. Such costs are to be measured by the Court on

submission of a fully itemised Bill of Costs in default of agreement.

Judge Rosemary Horgan

District Court Judge