District Court allows costs for father in child care case due to exceptional circumstances of sibling death and lack of legal aid.

[2016] IEDC 05

IN AN CHUIRT DUICHE THE DISTRICT COURT

THE CHILD AND FAMILY AGENCY

APPLICANT

-AND-

T. RESPONDENT

-AND-

M. RESPONDENT

IN THE MATTER OF THE CHILD CARE ACT, 1991

1. This is an application for legal costs by and on behalf of M, the Respondent father in these proceedings, being brought on his

behalf by his Solicitor.

2. T, the Respondent mother was represented in these proceedings by the state funded civil legal aid and a solicitor in the

employment of the Legal Aid Board. There is no application for costs being pursued on behalf of the Respondent mother.

3. These proceedings commenced in autumn 2014 when an Emergency Care Order was sought and granted in relation to the infant,

Child A. That was the day when the Respondent parents were dealing with the death of their only other child, Child B, who had

tragically died in summer 2014 in a car accident. The Respondent mother and Child A were also in the car. Therefore, two days

previous to the aforesaid first court application, the Respondent father had lost a son tragically and his wife was suffering trauma

necessitating medical attention in the aftermath of the tragic car accident. Child A, the subject of the application who was then a

young infant, was to be discharged from hospital. The Emergency court application was granted for a period of seven days after a

hearing.

4. The Next court date, in autumn 2014 (five days after the initial proceedings), was where an Interim Care Order was granted for a

period of two weeks until the beginning of mid autumn 2014.

5. In mid autumn 2014 an application for an extension of the Interim Care Order was refused and not granted, however, a Supervision

Order was granted. Three days later, in mid autumn 2014, an application for an Emergency Care Order was made to the Duty Judge at

a late sitting of the District Court and the Agency contacted the solicitor for the Respondent mother who attended at that hearing.

After the hearing an Emergency Care Order was made by the Duty District Court Judge. That Order was extended on foot of Interim

Care until the final hearing in autumn 2015.

6. In mid autumn 2014 a Care Order pursuant to section 18 of the Act was made for a period of two years. Finalising of Directions, on

foot of the Care Order, took place the next. The Respondent father, with the assistance of his solicitor, participated fully throughout

the proceedings.

7. It is agreed that M, the Respondent father has certain cognitive difficulties and finished formal education at an early stage. The

Respondent father sought the assistance and services of his long- standing solicitor with whom he had a relationship of trust and

confidence when faced with the initial court applications at short notice and at a particularly difficult time in his life for the

Respondent father and his family.

8. The Respondent father’s solicitor acted throughout the proceedings from beginning to end and only in mid autumn 2015, the date

for a hearing of the Application for a full Care Order, did the solicitor receive a Legal Aid Certificate authorising him to act on the state

funded civil legal aid scheme for the Respondent father. It appears from the submissions made to me that the state funded Legal Aid

Scheme was commenced in the aftermath of the decision of Child and Family Agency v O.A. [2015] IESC 52, delivered on the 23rd

June 2015, which afforded the Respondent father the opportunity to have state funded legal aid provided by the solicitor of his

choice.

9. The Application before me today is by the Respondent father’s solicitor on behalf of his client for the legal costs incurred from the

outset of the proceedings up to the date when the state funded legal aid certificate issued to the solicitor.

10. It is agreed that the Respondent father could not afford the services of a private solicitor from his own means.

11. The Law on how this Court must exercise its discretion in deciding this matter is set out in the decision OA and in particular, the

judgement of Mr Justice Mac Menamin dated the 23rd day of June 2015. It was submitted that the ratio of the Supreme Court

decision is set out at paragraph 49 of said judgement as follows:

“…I think the starting point should be that there should be no order for costs in favour of parent respondents in District Court

care proceedings unless there are distinct features to the case which might include;

i. a conclusion that the CFA had acted capriciously, arbitrarily or unreasonably in commencing or maintaining the

proceedings;

ii. where the outcome of the case was particularly clear and compelling;

iii. where a particular injustice would be visited on the parents, or another party, if they were left to bear the costs,

having regard to the length and complexity of the proceedings;

iv. in any case in which a District Court seeks to depart from the general default position, and to award costs, it is

necessary to give reasons. These reasons must identify some clear feature or issue in the case which rendered the

case truly exceptional. It is true all cases are distinct, but not all cases are exceptional. The reason for the

distinction rendering a costs order justified must go to whether or not there was some unusual or unprecedented

issue, or issues, which required determination or whether the case properly, and within jurisdiction, determined a

point that had application to a range of other cases….”

12. I must apply this law to the facts as I find them in this case. I propose to proceed through the reasoning and legal rationale of

the O.A. decision in reaching my conclusions and exercising my discretion to the facts and circumstances of this case.

“ The starting point should be that there is no order for costs in favour of parent Respondents in District Court care proceedings

unless there are distinct features to the case which might include…”

I accept the submission made by the Respondent father’s solicitor that the distinct features alluded to by the Supreme Court

are not a definitive list and that the list is an indicative list that does not exclude other issues/ matters arising.

13. To continue with the rationale of O.A.

“(i) a conclusion that the CFA had acted capriciously, arbitrarily or unreasonably in commencing or maintaining the

proceedings...”.

I am satisfied that the Child and Family Agency have a statutory duty, as provided by section 3 of the Child Care Act 1991, to

promote the welfare of children and to take such steps as it considers requisite. I do not propose to verbatim quote from the relevant

statutory provisions that are contained within the Child Care Act 1991. I am satisfied in this case, in light of the statutory obligations

on the Agency that the Agency did not act in a capricious, arbitrary or unreasonable manner in commencing or maintaining these

proceedings.

14. Continuing from the rationale of the O.A decision, “Where the outcome of the case was particularly compelling”, I am satisfied

that this does not apply to the facts of this case.

15. The O.A rationale further states that “Where a particular injustice would be visited on the parents, or another party, if they were

left to bear the costs, having regard to the length and complexity of the proceedings”. These proceedings are and were in this case,

by their very nature long and complex involving multiple court hearings and matters of constitutional and convention law. It is

noteworthy that the wishes and welfare of the child, the subject of these proceedings, was represented by a Guardian ad Litem who

is not an actual party to the proceedings, but is appointed by the Court to represent the wishes and welfare of the child and in this

case the Guardian ad Litem had the benefit of legal advice.

16. It is noted that it is commonplace that the legal costs of the Guardian ad Litem are discharged and paid by the Child and Family

Agency as a matter of routine and without any objection by the Agency. I am not informed as to whether the Guardian ad Litems

legal costs were paid by the Agency in this case.

17. I find as a fact that a particular injustice would be visited on the Respondent father if he was left to bear the legal costs.

18. The parameters within which I can exercise my discretion to determine matters of costs are further delineated by the Supreme

Court stating the reasons why costs can be given and when the Court seeks to depart from the general default position that

Respondent parents must;

“Identify some clear feature or issue in the case which rendered the case truly exceptional. It is true all cases are distinct, but

not all cases are exceptional. The reason for the distinction rendering costs order justified must go to whether or not there was

some unusual or unprecedented issue, or issues, which required determination or whether the case properly, and within the

jurisdiction, determined a point that had application to a range of other cases. “

19. I am satisfied that the actual factual circumstances of this case at the outset of these proceedings with a First Court application

being made on the day of the funeral of the subject child’s brother and in a situation where the Respondent father with certain

limitations had an established relationship with his solicitor and there being at that time no system of legal aid that permitted the

Respondent father to select his own private solicitor are truly exceptional, unusual and unprecedented and remained so at the initial

stages of these proceedings.

20. I am making an Order for costs in favour of the Respondent father against the Child and Family Agency in regard to the two Court

dates in early autumn 2014, and the two Court dates in mid autumn 2014. I am not making any further order for costs.

21. I wish to highlight that by any standards I am only permitted to gauge the standards of behaviours, features, issues and

circumstances that occur in Child Care proceedings as and further to the Supreme Court decision the initial circumstances and

features of this case were truly exceptional, unusual and unprecedented and tragic in the extreme.

Marie Quirke

District Court Judge