District Court allows father's costs against Child and Family Agency for unreasonable delay in child placement.

2017 [IEDC] 26

The District Court

Dublin Metropolitan District

Child Care Act 1991 – Section 17, 18 and 47 Child Care Act 1991

CARE ORDER in being under section 18 Child Care Act 1991

Child AND Family Agency

Applicant

GD(deceased) & BC

Respondents

In the matter of CD, a child

1. This is an application for legal costs by and on behalf of the SECOND NAMED Respondent BC who is the Respondent father of the

subject child.

2. It being the case that this court refused to make an order for costs simpliciter against the Child and Family Agency for the costs of

the Respondent father in relation to all the proceedings under section 18 and section 17 of the Child Care Act 1991 in favour of the

Respondent father in application of the principles applying and in particular the principles set out in the Supreme Court decision of CFA

v OA [ 2015] IESC 52 but it being the case that this court was asked to consider the application for legal costs incurred by the

Respondent father in being legally represented in regard to an application pursuant to Section 47 of the Child Care Act 1991 brought

during the course of the Child care proceedings being in fact an application by the Guardian ad litem for the child which application

was dated and was returnable to the District court and which application was made during the course of Child Care Proceedings

herein and before a final decision had been made under section 18 of the Act.

This court finds as follows;

1. The placement for the subject child was decided to be unsuitable in October 2014.

2. No action on the ground by and /or on behalf of the Child and Family Agency occurred in regard to moving the child on

foot of this decision until the Guardian ad litem initiated an application under section 47 already referred to herein, which

application sought inter alia Directions to be given by the Court affecting the welfare of the subject child to include;

“Given that current placement is and has been deemed unsuitable for the child since [month redacted] 2014 that the

court be immediately informed of the identity of the child’s onward placement

That the Court is informed of the start date for this placement and a transition and safety plan formulated with input

from all professionals and provided to the court.

That the Court be informed as to how this placement will protect the child by means of an outline of the supports which

will be made available to the child, in circumstances where she does not meet the requirements for Secure Care.”

3 The Respondent father was made a party to this application and participated purposefully at the hearings of this application on

three dates during March 2015 when at the latter hearing the court was informed that a placement move had occurred in reality for

the subject child between the second day and third day of hearing in [ month redacted] 2015.

4 THAT these type of proceedings are, by their very nature, complex. The court notes by virtue of the submissions herein in this

case, that these applications involve constitutional, convention, statutory law and the welfare of the child.

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

THAT the Application by the Guardian ad litem under section 47 of the Act was necessitated it is to be found by the court by the

unreasonable and untimely behaviour of the Child and Family Agency in not taking the necessary action to move the subject child

even though a decision that the child was in an unsuitable placement had been reached in [ month redacted] 2014 but no practical

reality on the ground steps were taken until the Guardian ad litem commenced and applied to the Court under section 47 of the Act

some four months later ( and a placement move only taking place some 5 months after placement had been deemed unsuitable) and

the Respondent father was entitled and required to participate in this matter.

THAT it is common case that the legal costs of a Guardian ad litem are discharged by the Child and Family Agency under section 26

of the Child Care Act 1991. There being no evidence/submission to the contrary to this Court.

THAT the interests of justice and the welfare of the Child required the Respondent father to participate when no actions on the

ground save intimations that action was to and would occur had been taken by the Agency on the fundamental matter of the Childs

placement until the Section 47 proceeding by the Guardian ad litem to which the Respondent father was required to attend and was

put on notice of same.

5 Application of the principles on costs as clarified by the Superior Courts is to the effect that this Court has a discretion to make an

award of costs against the Agency within the parameters set down by the Supreme Court as the parameters for exercise of this

discretion by this court in the decision of Mr. Justice McMeniman in OA [2015] IESC 52. This Court concludes that on the facts as

outlined in this matter the Agency had not acted reasonably and in fact the failure by the Agency to take the necessary action

required the Guardian ad litem to commence an application under section 47 to which the Respondent father was a notice party. It

must have been clear to the Agency that once a decision was made in [ month redacted] 2014 that a placement was unsuitable, that

a move of the child should have occurred as a matter of urgency and not to have to occurred some five months later and only after

the section 47 Court application had been initiated and made by the Guardian ad litem to the Court .

6. A particular injustice would be visited on the Respondent father in the event that he would be left to bear his own legal costs

arising from appearing to such an application under section 47 of the Act brought by the Guardian ad litem due to the unreasonable

inaction and delay ( which I found as a fact had occurred in this case) of the Agency in a move of placement of the subject child.

7. I find in favour of the Respondent father and order the legal costs of the Respondent father as regards the section 47 application

for the three dates of hearing of [ month redacted] 2015 and for costs of costs application today [2nd day of May 2017] to be

recovered by the Respondent father from the Child and Family Agency and to be measured by this court pursuant to the District Court

Rules in default of agreement.

Dated this 2nd day of May 2017

Signed

Marie Quirke

District Court