THE SUPREME COURT
[Appeal No. 422/14]
IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947 (NO. 20 OF 1947); SECTIONS 13, 17 AND 19 OF THE CHILDCARE ACT, 1991
CHILD & FAMILY AGENCY (FORMERLY HEALTH SERVICE EXECUTIVE)
The Procedural Background
2. On an appeal by the Child and Family Agency from an award of costs by the District Court to the respondent, is it permissible for me to take into account the reasoning adopted in the United Kingdom Supreme Court decision in Re T (Children) (Care Proceedings; Costs) S.C.  1 WLR in making my decision that costs should not be awarded against the appellant?”
The Status of the CFA/Tusla
6. Section 3 of the Child Care Act, 1991 identifies the main policy objective, now to be pursued by the appellant, as being the promotion of the welfare of children. With this end in mind, the Agency is now to take such steps as are required to identify children not receiving adequate care and protection, and to co-ordinate information from all relevant sources on the subject. The Agency is to regard the welfare of the child as its first and paramount consideration. It is to give due consideration to the wishes of the child, subject to the child’s age and understanding. In furtherance of these aims, and pursuant to s.16 of the 1991 Act, there is a statutory duty to institute proceedings when it appears that a child requires care and protection, unlikely to be provided otherwise. This imposes a precautionary principle of protection.
Categories of Applications to the District Court in Child Care Matters
10. Therefore, again, by way of contrast to the office of Director of Public Prosecutions, and other regulating or supervisory bodies created by statute, the Agency’s duties do not end there. When a care order is in force, the Agency must exercise such degree of responsibility for the child as if it were his or her parent. It must take all reasonable steps, (including provision of access for parents), for the purpose of safeguarding or promoting the child’s health, development, or welfare. It is empowered to determine the type of care to be provided for the child, give consent to any necessary medical or psychiatric examination, and, where necessary, give consent to the issue of a passport (Section 18 of the 1991 Act).
11. Where a judge is satisfied that there are reasonable grounds for believing that certain of the threshold neglect, or welfare criteria are met, but where a full care order is not warranted, he or she may consider that it is desirable that a child be visited periodically by or on behalf of the Agency, and may make a supervision order under s.19 of the Act. Such order authorises social workers to visit the child on such periodic occasions as may be considered necessary, in order to be satisfied that the child’s welfare is being protected, and to give advice to parents or guardians as to the child’s welfare. Supervision orders may be made, for example, where a parent or guardian is not fulfilling their responsibilities by leaving young children unsupervised. While the threshold of proof is obviously lower than in the case of a full care order under s.18 of the 1991 Act, the fact that a supervision order is made has a high degree of significance and can only arise when there is sufficient probative evidence of neglect, albeit in circumstances less grave than under s.18 of the Act.
12. It is no exaggeration therefore, to describe the decisions which a District judge must make in these cases as having a far greater personal and social significance to those individuals involved or affected, than judgments in other courts, which sometimes attract a higher degree of public attention. For this reason, the recent reforms, to allow media access to courts engaging in this work, is to be welcomed.
Legislative Policy on Costs
14. In the apparent absence of an explicit statutory policy or guidelines in the 1991 Act as to costs of parent’s private legal representation, the Agency and its predecessor, have, in their other legal challenges to an award, fallen back on provisions in the Civil Legal Aid Act, 1995. It was said this legislation outlined policy considerations which, it was suggested, courts should take into account in assessing whether privately retained lawyers might be awarded costs. The Agency’s position has been, therefore, that a District Court judge should bear in mind that legal aid will be available to the parents of children engaged in proceedings. In these earlier proceedings, counsel relied on s.33 of the 1995 Act, which, (insofar as material), provides that costs are to be recoverable by, or on behalf of a person in receipt of legal aid or advice; with the intent that such recipient is to enjoy the same rights and duties of recovery of costs against another party as would normally apply to privately represented litigants. Counsel acting for the Agency made the case that the existence of such a duty suggested that, in child law cases, a court, in assessing whether to award costs to a party of moderate means who retains a private lawyer, should bear in mind that such person might have applied for, and received, legal aid.
15. Prior to consideration of the facts, I think this Court may take judicial notice of a number of matters. First, hitherto, the District Court has frequently made no award as to costs in child care proceedings, often in cases where the parents were legally aided. This judgment concerns itself with the circumstances in which there has been a departure from that general approach. Second, we have not been referred to any precedent for the Agency actually seeking an award of costs against parents, although such a situation is theoretically possible. Third, many parents will, in fact, be represented by lawyers retained under the civil legal aid system. As a consequence, courts may occasionally refrain from awarding costs on the practical basis that the funding ultimately emanates from the same ultimate source (that is, the State itself), even though there is a duty on lawyers employed by the Legal Aid Board, representing legally aided parties to make application in fulfilment of their duties under s 33 of the Civil Legal Aid Act, 1995.
A More Detailed Outline of Events
17. In April, 2011, the HSE, as the agency then charged with child care functions, received a complaint, via a third party, that A.A., aged 11 years, had been the subject of physical abuse by her mother. The third party was the mother of a friend of A.A.’s. She apparently went to the HSE offices with A.A. to assist her in lodging the complaint. When the HSE social workers contacted A.A.’s mother, O.A., she denied any misconduct, and claimed the child had been manipulated by the third party. However, O.A. told the social work professionals that if A.A. wanted to go and live with the third party, she could do so. She subsequently threw the child’s clothes out of the house.
18. Against this unfortunate background, the HSE applied to the District Court for an emergency care order pursuant to s.13 of the 1991 Act, which order was granted, ex parte, on the 28th April, 2011. By the time of the return date, 5th May, 2011, the mother, O.A., had retained Mr. Eamon Bennett, a solicitor in private practice, who appeared in Court on her behalf. A.A. was, at that point, still maintaining her claims against her mother, and refusing to return home. Mr. Bennett later queried the motivation behind the third party’s engagement with the HSE. There was a suggestion in correspondence, but no more, that the HSE had had some prior knowledge of the third party in the context of concerns as to her psychological welfare. It is not said there was any want of care in the HSE receiving or acting upon the complaint, however.
19. An application for an interim care order was adjourned on several occasions between the 11th May, 2011 and the 28th November, 2011. By then, the home situation had radically changed; the District Court was informed that A.A. had withdrawn her complaints, against her mother, and had returned back home. Normally, and as a consequence of such a change, an application for a full care order might foreseeably, lapse. The interim care order remained in force however. But on the same date, the HSE sought a supervision order, pursuant to s.19 of the 1991 Act. Ms. A. was not in court. Her solicitor consented on her behalf, to a supervision order of 2 weeks duration. Mr. Bennett then also brought an application, pursuant to s.47 of the Child Care Act, 1991, for directions, seeking to discharge the interim care order, and requesting the court to vacate the dates which had been assigned for hearing of the full s.18 long term care application. These orders were granted.
20. Later, on the 12th December, 2011, the HSE applied for a further supervision order, raising questions as to Ms A.’s co-operation. Ms. A. contested this application through her solicitor. District Judge Toale nonetheless granted a supervision order, to remain in place until the 5th March, 2012, when the supervision order expired, and the HSE confirmed it was not, at that stage, applying for any further remedy.
21. But six weeks later, on the 25th April, 2012, the HSE brought a further application to the District Court, this time seeking a new s.19 supervision order on the grounds that O.A.’s three younger children, K.A., K.A. and S.A., were being left at home without proper adult supervision. The mother contested this claim. The case was heard over a number of days. District Judge Toale, being satisfied there were reasonable grounds for concluding the children had been left unsupervised and unattended, granted the supervision order for a period of 1 year, with a review date fixed for the 4th July, 2012. This order was not appealed on its merits. It follows that the District Judge must have been satisfied that reasonable grounds existed for granting such an order. Can it then be said that Ms. A. had been a ‘successful party’ in the various applications? Clearly not, judging from the overall outcomes.
The First Costs Application in the District Court
The Case Stated to the High Court
24. O’Malley J. found that the availability of legal aid was an extraneous consideration to the costs application. She held the District Court was vested with the necessary jurisdiction to award costs in care proceedings, and also that, having chosen her private legal representative, the mother was legally entitled to seek costs against the Agency. But, she emphasised, she expressed no view on the merits as to whether the mother was actually entitled to her legal costs.
25. In her judgment, delivered on the 12th April, 2013, the High Court judge replied in the negative in response to the two questions then raised in the case stated, viz:
ii. Whether, when so engaged, a judge was required to take into account the fact that the respondent may have been entitled to legal aid and had access to legal aid.”
The District Court Ruling on Costs
Consideration of the District Court Ruling
30. But, on any fair interpretation, the District judge’s observations were phrased at a level of generality, and principle, which transcended the facts of the case before him. The ruling refers, in general terms, to the importance of ensuring parental involvement in the proceedings, and the reasonableness of parents seeking legal assistance. It is said to be for the benefit of other parties in other cases. The judge concluded that, provided parent-respondents acted reasonably in the context of contributing “purposively” to the enquiry of the court, he would be “disposed to exercise a discretion to award costs in their favour”. It is impossible to avoid the conclusion that the judge was seeking to pronounce upon a question of the policy he would generally adopt on costs issues in child care cases. But what is of equal importance, he did not rely on the recognised principles on costs in the award. The judge awarded costs to Mr. Bennett, Ms. O.A.’s solicitor, but did not identify any exceptional feature of the case to justify such a decision. He did not find that the appellant had acted arbitrarily, capriciously or unreasonably. While the care order application may have lapsed, it hardly needs emphasis that the judge granted further supervision orders after he had heard evidence over several days. Both the passages from his determination, quoted above, and others, were not fact-specific to the case, and were clearly intended to be a ruling of more general application. In light of those observations, one might rhetorically ask, whether, having expressed such views, a judge could rationally or properly depart from the apparently inflexible principle of that ruling in other cases? Acknowledging that this is not a judicial review, it is nonetheless difficult to avoid the conclusion that the judge might also have been open to the criticism of unlawfully fettering his discretion. To operate or apply an inflexible general principle in an area of discretion such as this, or to fail consistently to apply recognised principles, might, very arguably, render other awards, (or even this award), amenable to challenge under Order 84, Rules of the Superior Courts. One of the defects in the ruling is that it appears inflexible and a rule of general application in an area accepted to be governed by discretion, and where discretion is particularly important. The HSE on this occasion appealed to the Circuit Court.
Appeal to the Circuit Court
32. As can be seen from the second question in the case stated, in proposing to reverse Judge Toale’s cost order, the Circuit judge was minded to rely on, and referred to a U.K. judgment, Re T (Children)  WLR. O’Malley J. had distinguished the facts of the case before her from this persuasive authority, where the Supreme Court of the United Kingdom reversed an order of the Court of Appeal of England and Wales, awarding legal costs to a child’s grandparents in a child protection case. There, the grandparents, apparently ineligible for legal aid, had borrowed over £55,000, repayable over 15 years, to pay for legal representation in child care proceedings which lasted over 5 weeks. In fact, prior to the final appeal, their costs were discharged, on a ‘without prejudice’ basis. Speaking for the U.K. Supreme Court, Lord Phillips of Worth Matravers P.S.C., reversed the award of costs, pointing out that, under the U.K. legislation, if a local authority received information that a child had been subject to, or likely to be subject to, serious harm, it had a statutory duty to investigate the report, and where there were reasonable grounds for believing that the complaint may have been well founded, to instigate care proceedings. Because the child care authority was performing a function vested in it by statute, that court considered, costs should not be awarded, absent any indication that the authority had acted in a manner which was unreasonable, arbitrary or capricious. The Circuit Court judge was obviously minded to adopt the same approach in reversing the District Court judge’s award of costs to the mother.
The Appeal of the High Court Judgment
35. By contrast, His Honour Judge Nolan also was minded to apply an apparently inflexible principle; in this instance, to the effect that costs should not be awarded to private lawyers, unless it were shown that the Child & Family Agency had engaged in misconduct, or unreasonable, arbitrary or capricious behaviour in initiating or maintaining the child care proceedings.
36. It is necessary to point out here that the District judge was exercising his jurisdiction pursuant to the Child Care Act 1991. This Act does not restrict rights of appeal in this context. Since the enactment of the Constitution, other statutes, for example, those in the areas of immigration, planning, and extradition, have confined rights of appeal to this Court to points of law. Thus, on occasion, this Court has held that appeals on award of costs cannot lie, as being part of the decision, judgment or determination of the High Court.
37. However, in In Bonis Morelli, Vella v. Morelli  I.R. 11 this Court, in addressing the pre-Constitution of 1937 costs regime, which did not evince any such statutory policy restricting appeals, concluded that an incorrect exercise of discretion by the High Court on costs might be reversed. Budd J, speaking for the majority, explained that an appeal may lie to this Court, even on such a discretionary High Court determination. He pointed out that any deference to a trial judge’s determination of a discretionary matter must hinge on a judge properly directing himself or herself as to the limits of their discretion. In In Re Comet Food Machinery Ltd (In voluntary liquidation)  1 I.R. 485, Keane J. emphasised that this Court was not bound by pre-independence authorities on appeals regarding discretionary orders, but nonetheless made clear, that although great weight would be given to the views of a trial judge, this Court should also have regard as to whether the orders of the trial judge were in accordance with established principles.
38. Applying this principle by analogy, therefore, had the District Court judge, applying established principles and identifying his reasons, decided that, in this particular case, it was appropriate to award part-costs on the withdrawn care order application, there might, have been merit in concluding that the Circuit Court judge should not interfere with such an award, given the fact that there had been no full hearing on the issue before him on appeal. However, it is impossible to reach the same conclusion as to the supervision orders, which the District judge granted. It cannot be convincingly asserted that the mother was a “successful party”, in the latter instances. Nor can it be said that the District judge’s award of costs, had to apply the well established phrase, “followed the event”, or “established principles”. In fact, the ruling does not set out a rationale for the award of costs, nor does it seek to distinguish the full care proceedings from the supervision orders made, which were clearly unsuccessful from O.A.’s point of view.
The Application of Established Principles
40. This case stated, in fact, raises the more troublesome question of when, if at all, it would be appropriate to award costs to a party for whom the outcome has been largely unsuccessful. Insofar as the Circuit judge might have been disposed to place reliance on Re T, it is apposite to point out that the High Court judge distinguished it and preferred the approach of the Court of Appeal, which allowed the grandparents costs. Arguably, it would have been appropriate for the learned Circuit Court judge to attach weight to the High Court judge’s reasoning and to her distinguishing Re T, even if the issue before him was slightly different. While expressing no further view, the costs regime in child care cases in the neighbouring jurisdictions are based on a different system with many set and established guidelines. The U.K civil legal aid scheme operates in a different manner from that in Ireland. It is not appropriate for the District Court or the Circuit Court, on appeal, to seek to lay down a general, or inflexible, rule of application or approach on costs awards, an area which is, by its nature, discretionary, although that discretion should be exercised within well defined principles.
Potential Consequences of a General Approach
42. Assisting and representing clients in child care cases is not easy. On occasion the parties are not in a position to exercise clear judgment, or to accept good legal advice. Cases can be unnecessarily prolonged where lawyers, whether privately retained or not, feel constrained to follow their clients’ instructions. Situations might very easily arise where, for many reasons, perhaps cultural unfamiliarity, there could be a distrust of lawyers employed by the State. But while understanding the District judge’s motivation, therefore, there are real difficulties in any scheme dependent on an individual assessment of co-operation by parents. It creates the possibility of significant divergences in approach between District Court judges, and Circuit Court judges on appeal. It opens up the possibility of undesirable variations between particular cases, conducted in different District Court areas and circuits, and might give rise to a possible apprehension of a judge favouring the adoption of a particular approach by lawyers appearing before him in these matters.
43. Child law requires high degrees of skill, sensitivity and patience. However, this cannot militate against the proper conduct of legal proceedings in accordance with established procedures albeit in circumstances where, as here, the judicial role is, at least in part, inquisitorial. A party is entitled to be objectively advised as to the proper legal course of action which is available. At the same time, it is proper to recognise the reality that highly experienced judges sometimes find themselves having to deal with very lengthy cases and heavy lists. There is surely a case for further studies on the proper management of court time in child care cases where delays, unmanageable lists, or very long individual cases, risk injustice, and may actually determine outcomes by the elapse of time and its effects on volatile family situations. Priority in court space and time is not the prerogative of the wealthy or powerful commercial interests.
44. In cases of this type it is undesirable that eligibility for legal costs awards should be determined only after the fact, and by reference to a judge’s conclusion as to the degree of co-operation of the parents in the proceedings. If an individual is entitled to legal representation, he or she is entitled to instruct their lawyer to take such reasonable and lawful steps as they may wish in order to advance their case, insofar as this is consistent with professional conduct, and the efficient running of the case. On occasion, this may involve taking an approach which some judges might consider not ‘helpful’. It is not desirable that there should be an interference between the relationship between a lawyer and his or her clients, or that lawyers be put in a position where the prospect of remuneration may be at odds with proper legal duties to a client. Obviously, there might be benefits from such a ruling, but I do not think this is the correct way to achieve greater efficiency or better case management.
45. Furthermore, in such a scheme, costs awards, perhaps incapable of being measured in advance, are imposed upon the State. A judge, in operating such system would, implicitly, be making a pre-determination as to the distribution of State funds thereby calling into question the principle of separation of powers.
46. Litigation can be expensive. Apart from indemnifying a successful litigant (it is hard to say this arises here), the risk of an adverse costs award in such cases as the situation arises may, on occasion, have the effect of deterring litigants from pursuing unmeritorious claims. If, for example, the Child and Family Agency can have an award of costs made against it, if it acts mala fides, recklessly or capriciously, then that is intended to discourage such conduct. It must follow, that if a court routinely awards costs to parents, then that is bound to affect the decision-making capacity of the Agency in whether or not to bring proceedings at all. But there is potentially a more serious consequence. It is one which ultimately goes to the welfare of children at risk, which must be a primary consideration.
47. If costs are to be routinely awarded, and the Agency itself becomes over-careful in deciding not to bring proceedings, then children may be at risk. Additionally, the financial consequences which may result from non-action may ultimately come out of some other part of the Agency’s budget, or the State budget more generally. Substantial awards of damages are not unknown for State Agency failures in statutory duty in child care cases. A consideration must be child welfare, and the protection of children. I am not persuaded, therefore, it is a function of a District Court to engage in a type of determination which would be tantamount to a resource allocation decision, inductively applied, by a process of analysis conducted through the narrow lens of a single costs application and award.
Criteria Which May Appropriately be Adopted in the District Court on an Application
49. I take the view that the approach to be adopted by the District Court, in dealing with statutory child care proceedings, should normally be predicated on whether, in the first instance, it was proper to commence the proceedings. While “the event” is normally a starting point, there are, however, cases in which, it must be recognised, that it might be proper to order the costs of unsuccessful parents to be paid by the CFA, if, for example, proceedings were continued in circumstances where they were futile, or where the costs might place an inordinate burden on the parents. The interests of the child, and the interests of justice, should be ensured in accordance with the following general principles in District Court proceedings. 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:
(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.
50. In the circumstances, therefore, I would reformulate the question posed by the learned Circuit Court judge, so as to read:
53. I would, therefore, remit the matter to the Circuit Court to allow it to hear submissions on the application of the above criteria to this case. It is clear that this case stated itself establishes principles of a more general application than to the specific facts. As indicated earlier, the Court has been made aware that there are a substantial number of pending cases where this issue is outstanding, and thus the law required to be clarified.