UNAPPROVED
THE COURT OF APPEAL
Neutral Citation Number [2025] IECA 109
Noonan J.
Faherty J.
Binchy J.
IN THE MATTER OF H, A CHILD
BETWEEN/
THE CHILD AND FAMILY AGENCY
APPLICANT
- AND –
L.
RESPONDENT
-AND-
S.
GUARDIAN AD LITEM
-AND-
Record Number: 2024/219
IN THE MATTER OF K, A CHILD
BETWEEN/
THE CHILD AND FAMILY AGENCY
APPLICANT
-AND-
D.
RESPONDENT
-AND-
R.
GUARDIAN AD LITEM
Judgment of Ms. Justice Faherty dated the 16th day of May 2025
1. This judgment concerns two appeals by the CFA against the judgment of the High Court (Jordan J.) (hereafter "the Judge") on costs delivered on 4 July 2024 ([2024] IEHC 460), and the consequent Orders dated 18 July 2024 (as perfected on 1 August 2024) pursuant to separate contempt motions brought by the respective guardians ad litem (hereafter "the guardians") of two children ( hereafter "H" and "K") both of whom were the subject of special care orders made on 8 February 2024. The contempt motions were brought in circumstances where the CFA, having assessed each child as being in urgent need of special care, and having duly applied for and obtained special care orders on 8 February 2024 for the purposes of placing the said children in special care, failed to give effect to those orders.
2. For the reasons set out hereunder, the contempt motions did not proceed to hearing and determination save as to the issue of costs. In the High Court, in the absence of the contempt motions proceeding, both sides sought their costs. For the reasons set out in the judgment, the guardians' costs application prevailed, and the CFA now appeals the award of costs to the guardians-although the CFA is not now seeking its costs in the High Court proceedings, its contention being that the High Court costs order in each case ought be substituted with a no costs order.
3. It is worth repeating at this juncture that the special care orders were made in circumstances where the CFA was not able to respond with a special care bed in the immediate aftermath of a special care order. The reason for this is set out in the judgment of the High Court (Jordan J.) in D. v. CFA [2024] IEHC 614. In the course of the hearing leading to that judgment, Jordan J. heard oral evidence not just from the CFA's Chief Executive Officer but also heard under subpoena evidence from the Secretary General of the Department of Public Expenditure and Reform and the Secretary General of the Department of Children - in all a very high level and concentrated investigation undertaken by the High Court.
4. The background to the respective contempt motions is set out below.
The child, H
5. In summary, the relevant timeline of significant events in respect of H is as follows. As of 5 March 2024, some four weeks or so after the making of the special care order, H still had no bed in special care. Accordingly, H's guardian instructed her solicitor to correspond with the CFA in the hope, as she deposed to, "that it will bring the necessary pressure to bear [on the CFA] in terms of getting a special care bed for [H]". In the solicitor's letter of 5 March 2024, it was specifically stated that the CFA's failure to outline a clear plan for H and a timeline for his placement in a special care bed would result in the guardian having no option but to give instructions to move an application to hold the CFA in contempt for failure to comply with the special care order of 8 February 2024. That engendered a reply from the solicitors for the CFA on 6 March 2024 which disputed the rationale for a contempt motion and in which the CFA repeated that it was simply not in a position to meet the terms of the special care order. On 13 March 2024, the guardian's solicitor sent a further warning letter in which it was indicated that if there was not a satisfactory answer around the provision of a bed for H in special care by 2pm on 15 March 2024 the guardian would have no option but to issue a motion seeking to hold the CFA in contempt.
6. On 14 March 2024, counsel for the guardian sought liberty from the High Court to bring a motion for contempt. Liberty was granted and it was directed that the motion be issued and served by close of business on Friday 15 March 2024 with any replying affidavit to be filed by close of business on 19 March 2024. The motion was listed for hearing on 21 March 2024. The said motion issued on 15 March 2024 and was in the following terms:
"1. An order declaring the Child and Family Agency in contempt due to its continuing breach of the Order of 8th of February 2024 in these proceedings and in respect of the child: [H].
2. An order pursuant to Order 44 of the Rules of the Superior Courts and/or the inherent jurisdiction of this Honourable Court attaching and/or committing the Chief Executive Officer of the Child and Family Agency to prison until the contempt is purged.
3. If necessary, an order imposing appropriate measures as against the Child and Family Agency in consequence of its continuing breach of a special care order (granted at the instance of its own application) of the 8th of February 2024 in respect of the child...
4. An order for damages...."
It was grounded on the affidavit of H's guardian.
7. It appears that the guardian's solicitor attended at the CFA's Headquarters on 15 March. The CEO was not present on the premises and the papers in question were received by a solicitor in the CFA's legal office.
8. On 20 March 2024, the requisite motion booklet was filed in the High Court. On the morning of the hearing (21 March), the CFA applied for an adjournment (an application that had been mentioned before the High Court the previous day by counsel for the CFA) which was duly granted. A further affidavit timeline was given to the CFA and the motion was given a hearing date of 11 April 2024 and a "for mention" date of 8 April. Ultimately, however, no affidavit was filed by the CFA in relation to the substantive application.
9. It is the case that immediately after the adjournment was granted by the High Court on 21 March 2024, although indicating that they were ready to proceed, counsel for the guardian sought leave to issue a new motion seeking the same reliefs as in the earlier motion, in circumstances where it had not been possible to personally serve the CFA's Chief Executive Officer with the order with the penal endorsement, service only having been effected by leaving same with an employee of the CFA who had accepted service. The High Court directed that any further motion be issued and served before midnight on 27 March 2024 and gave directions as to the timeline for the filing of affidavits. This intended motion was listed for hearing on 11 April 2024.
10. On 22 March 2024, counsel for the guardian sought leave ex parte (albeit in the presence of the CFA) to bring a motion for substituted service of the 8 February 2024 special care order on the CEO of the CFA following which the High Court made such order.
11. On 26 March 2024, the special care order was duly served on the CEO with the following endorsement:
"If you, Tusla the within named State Agency, continue to neglect to obey this Order, (within a period of fourteen days following service of the Court Order herein) your Officers (to include your Chief Executive Officer, Ms. Kate Duggan, will be liable to a process of execution including imprisonment for the purposes of compelling you to obey the same Order."
12. As we shall see, one of the arguments the CFA advances on the appeal is that the guardian impermissibly inserted a 14-day period in the penal endorsement for compliance, something which, counsel for the CFA says, is not provided for either in the Rules of the Superior Courts ("RSC") or in the special care order made on 8 February 2024.
13. The second contempt motion in the H proceedings issued on 27 March 2024. It sought essentially the same reliefs as in the first motion.
14. Another of the complaints the CFA makes on the appeal is that the 14-day period for compliance the guardian had provided for had not expired when the second motion issued. All of this, counsel for the CFA describes as a "confabulation of procedural inadequacies" in circumstances where, it is said, the CFA and its CEO, who were being subjected to the attachment and committal procedure, were entitled to rely on a valid penal endorsement. I will return to this and the other complaint in due course.
15. It is common case that when the matter was before the High Court on 8 April 2024 the CFA indicated it was ready to oppose the contempt motion. At this stage however, the guardian's counsel updated the court by indicating his understanding that a special care bed for H may be imminent. Accordingly, the contempt application did not proceed on the scheduled hearing date. It duly transpired that on 12 April 2024, the SCOAP meeting of the CFA (the special care prioritisation meeting) agreed that H would have a special care bed by 18 April 2024. On 18 April 2024, it was indicated to the High Court that H was "first in priority" for a bed in special care but counsel for the CFA stopped short of confirming that the bed would go to H. On 19 April 2024, it was ultimately confirmed that H was the recipient of a bed in special care, and he was taken into a special care facility late that night.
16. On 2 May 2024, the CFA filed written submissions in the High Court in which it confirmed that it was seeking its costs against the guardian. A three-month extension of the special care order was granted to the CFA also on that date. On 7 May 2024, the guardian's written submissions on costs were filed and circulated.
The child, K
17. The relevant timeline in respect of the child K was similar to that of H. Some four weeks after the special care order was made K had still not secured a place in special care. On 7 March 2024, the solicitor for his guardian sent a letter to the CFA indicating that the guardian would have no option but to seek to hold the CFA in contempt if the child was not provided with a special care bed by close of business on 8 March. The CFA's response on 11 March provided no comfort in this regard. Following the issuing of a further warning letter on 13 March 2024 which advised that the guardian was pressing ahead with his intended application, on 15 March 2024, the guardian's legal representative (the same counsel as was acting for the guardian in the H proceedings) obtained short service from the High Court to progress matters including an accelerated timeline for the hearing of a motion seeking to hold the CFA in contempt. The guardian's motion issued on 19 March 2024 and a letter was sent to the CFA to inquire whether the CFA were exploring creative solutions for K such as a placement outside of the State.
18. On 20 March 2024, the motion booklet was filed in the High Court together with skeleton submissions supporting a finding of contempt. As with the case of H, on 21 March 2024, the CFA applied to adjourn the hearing which application was granted and further directions were made as regards the filing of affidavits. Again, as was the case in the H proceedings, no affidavit was ever filed by the CFA in relation to the substantive contempt application. Similar to the H case, on 21 March 2024, counsel for K's guardian indicated that although they had been ready to proceed with their motion, they were seeking liberty to issue a new contempt motion in circumstances where it had not been possible to personally serve the CFA's CEO with the special care order with a penal endorsement thereon.
19. On 22 March 2024, the guardian's motion for substituted service of the special care order of 8 February 2024 was heard and orders were granted by the High Court in that regard, in like manner as in the H proceedings.
20. On 27 March 2024, two things happened. K's guardian issued his second contempt motion and on the same date, the CFA wrote to indicate that K was to be admitted to a place in special care. On 4 April 2024, the guardian's solicitors wrote to the CFA outlining that the motion listed for hearing on 11 April 2024 would be discontinued as the outcome/event sought to be pursued had been achieved - i.e. the placement of K in a special care bed. On 8 April 2024, the High Court was apprised that time was no longer required for the hearing of the motion on 11 April 2024.
21. On 19 April 2024, the CFA filed submissions which reflected that it was seeking its costs as against K's guardian, following which K's guardian's submissions were circulated.
22. It should be noted the contempt proceedings in issue here were being brought in the context where on Wednesday 20 March 2024 the High Court (Jordan J.) heard a plenary action (B. v. CFA bearing record number 2024 198 HP) in which findings of contempt (but not attachment and committal) were sought by the plaintiff against the CFA for failing to find a place in special care for the minor, B. What was at issue in the case was the procedure adopted by the plaintiff in order to seek a declaration of contempt. That plenary action was the subject of a judgment of the High Court (Jordan J.) delivered on 3 April 2024 ([2024] IEHC 236) in which the plenary action was dismissed. In short, the High Court agreed with the CFA that a declaration in that fashion could not be sought by way of plenary summons and that the procedure provided for by the RSC was the proper procedure. The appeal against that dismissal was heard by the Supreme Court on 22 October 2024. By the time of the hearing of the within appeals, the Supreme Court had handed down judgment in B v. CFA on 27 January 2025 ([2025 IESC 2) allowing the appeal.
23. One of the submissions made by the CFA in the Supreme Court in B v CFA was that the plaintiff's appeal was unwarranted because there was no correlation between the outcome sought of increasing special care placements on the one hand and contending for a finding of contempt on the other (essentially, as we shall see, the same point as the CFA now makes in these appeals). The CFA also contended in the Supreme Court that the plaintiff had failed to address the feasibility of the use of the contempt jurisdiction and disputed that the remedy would in any way be effective or that its grant would have the purported intended effects. The CFA also contended that the lack of a penal endorsement on the relevant order was a fundamental flaw and that this constituted a complete answer to any contempt application.
24. At para. 25 of the judgment in B v CFA, Hogan J. addressed the CFA's jurisdictional argument, saying ultimately, at para. 35: "The short answer to this objection is that even where the plaintiffs proceed by way of plenary summons, this is a procedure which they are in principle entitled to exercise."
25. At para. 40 Hogan J. continued:
"And, unlike the situation in McD, the present case very much concerned the enforcement of legal rights. If the plaintiffs stopped short of seeking orders for committal or some other form of coercive or penal order, it appears to have been motivated by a desire to increase the pressure incrementally and in the hope of avoiding a [more] severe order being made against an agency which was plainly attempting to fulfil its statutory duty."
26. Having cited the decision of the House of Lords In re M [1993] UKHL 5, [1994] 1 AC 377, at para. 43, Hogan J. went on state as follows:
"There is thus clear English authority for the proposition that one may seek a simple declaration that a public body has been guilty of contempt. This is far from a pointless exercise, since a finding that a public body has been guilty of contempt of court would itself represent a very serious finding, with significant implications for the administration of justice and the rule of law. Collins J. also held that a penal endorsement was not necessary in such circumstances."
27. Ultimately, Hogan J.'s conclusions in B. v CFA were expressed as follows:
"54. In these circumstances, I would formally allow the appeal insofar as Jordan J. found against the plaintiffs on jurisdictional grounds. I would instead rule that they were entitled in principle to seek a simple declaration of contempt, if needs be by way of plenary proceedings.
28. I consider that the judgment of Hogan J. has some resonance for the within appeals in light of some of the arguments advanced on behalf of the CFA, and in circumstances where although motions were brought by the guardians seeking inter alia attachment and committal, the guardians had made it clear at various stages of the contempt applications that those reliefs were not their objective in bringing the motions and that (had the contempt motions gone on to be determined) they would have been satisfied with purely declaratory orders in the hope that that would ultimately lead to the provision of special care beds for H and K.
29. As already referred to, ultimately the hearing and determination of the contempt motions in the within proceedings did not arise, and so, it is to the costs decision rendered by the High Court that I now turn.
The High Court hearing on costs
30. The issue of costs in respect of both cases came on for hearing before the High Court on 9 May 2024 at which the guardians were seeking their costs. As already outlined above, it is common case that the CFA was also seeking its costs in both cases, an application which the guardians contended had a "chilling effect" and which, it was said, sought to "entirely and unequivocally ... fetter the discretion of the independent voice of the children in these cases ... who may wish to bring about the same outcome for their very vulnerable children assessed by the very same Agency as being in need of special care".
The High Court judgment
31. As the High Court judgment records, the position adopted by the CFA in the High Court was that the guardian ad litem had no role in bringing contempt proceedings, and it submitted that nowhere in the Children Act 1991 ("the 1991 Act") was there a provision that permitted a guardian ad litem to pursue a contempt motion.
32. Neither of those submissions was accepted by the Judge. He was satisfied that on the facts of each case, the guardian ad litem was quite properly seeking to vindicate the child's rights - which was "clearly within the role and responsibility of each GAL" (para. 14). The Judge was also satisfied that in each case the guardian was entitled to pursue the motion in circumstances where "it was clearly a remedy believed to be worthwhile pursuing in the interest of the welfare of each child" (para. 17), the Judge, in this regard, relying on the dicta of Baker J. in A.O'D v. Judge O'Leary [2016] IEHC 555 at para. 57.
33. Earlier, at para. 13 of his judgment, the Judge noted that the award of costs to the guardian in A.O'D related to the issue of statutory interpretation and questions of public importance. Whilst the instant cases could not be said to be in that specific category, the Judge's view was that "the CFA's failure in these cases is a matter of very great importance to the children and those concerned for them - literally life and death importance". He went on to state:
"Importantly also is the fact that these are not isolated incidents - and they are a bleak illustration of a childcare system failing the most vulnerable. We are here dealing with children at significant, immediate and escalating risk. They are dependent on an Agency which is failing them and they are fortunate to have professional GALs working to help them" (para. 13).
34. In the view of the Judge, on the facts of each case, the guardian was quite properly seeking to vindicate the child's rights. Insofar as the CFA maintained that the guardians had no role in bringing contempt proceedings and relied on the decision of Baker J. in A. O'D to that effect, the Judge found that submission misconceived noting that at para. 114 of Baker J's decision (which the CFA itself cited), she expressly stated that "the role of the guardian ad litem may depend on the context of the appointment and the extent of authority vested by an order". He further noted what Baker J. said at para. 57 of her judgment:
"The furtherance of the interests of justice by the appointment of the guardian ad litem would suggest that the Oireachtas had in mind that the guardian ad litem would take a role consistent with the furtherance of the interests of justice, and therefore will take a role in the proceedings not merely as a witness."
In the view of the Judge, "[t]he GAL was entitled and indeed obliged to agitate on behalf of the child in each case and the motion was an option available to be pursued in that regard." (para. 17).
35. The Judge next addressed the legislative basis for the award of costs as provided for in ss.168 and 169 of the Legal Services Regulation Act 2015 ("the 2015 Act"), noting as set out in Delany and McGrath on Civil Procedure (5th ed. 2023) at para. 24-02, "[t]he legislative basis for the awarding of legal costs appears in ss.168 and 169 of [the "2015 Act"] and the recast Order 99 of the Rules of the Superior Courts. These provisions replace the general discretion of the court that was provided for by the former Order 99." He noted that the overarching principle remains that the award of costs should follow "the event".
36. At para. 20, he reprised the provisions of para. 24-05 of Delany and McGrath which in turn had reprised the general principles that apply to the awarding of legal costs as summarised by Murray J. in Chubb European Group SE v Health Insurance Authority [2020] IECA 183:
"(a) The general discretion of the Court in connection with the ordering of costs is preserved (s.168(1)(a) and Order 99, rule 2(1)).
(b) In considering the awarding of costs of any action, the Court should 'have regard to' the provisions of s.169(1) (Order 99, rule 3(1)).
(c) In a case where the party seeking costs has been 'entirely successful in those proceedings', the party so succeeding 'is entitled' to an award of costs against the unsuccessful party unless the court orders otherwise (s.169(1)).
(d) In determining whether 'to order otherwise' the court should have regard to the 'nature and circumstances of the case' and 'the conduct of the proceedings by the parties' (s.169(1)).
(e) Further, the matters to which the court shall have regard in deciding whether to so order otherwise include the conduct of the parties before and during the proceedings, and whether it was reasonable for a party to raise, pursue or contest one or more issues (s.169(1)(a) and (b)).
(f) The Court, in the exercise of its discretion may also make an order that where a party is 'partially successful' in the proceedings, it should recover costs relating to the successful element or elements of the proceedings (s.168(2)(d)).
(g) Even where a party has not been 'entirely successful' the court should still have regard to the matters referred to in s.169(1)(a)-(g) when deciding whether to award costs (Order 99, r.3(1)).
(h) In the exercise of its discretion, the Court may order the payment of a portion of a party's costs, or costs from or until a specified date (s.168(2)(a))."
37. On the question of "the event", the Judge noted the dictum of Finlay Geoghegan J. in Benloulou v Minister for Justice and Equality [2016] IECA 181 that an event occurs "in circumstances where it can only reasonably be understood as being in direct response to the proceeding". As to the relevance of "an event" in childcare cases, he quoted MacMenamin J. in CFA v O.A. [2015] 2 I.R. 718, at para. 42:
"I pause here to observe that, the use of the term 'the event', as in 'costs follow the event' is not always, in itself, a satisfactory criterion, in the context of child care cases, where, as here, there may be a number of 'events', and there are different orders made as part of a continuum. The term 'outcome' may be a more apposite approach when considering such applications, thereby allowing a judge to take a more all- encompassing view. Whether it was appropriate to deny a successful party their costs because of the existence of legal aid, simply does not arise as an issue here."
38. As referred to at para. 25 of the judgment, the CFA's interpretation of the relevant event in the present cases was that of a finding of contempt which, the CFA contended, had not been made in these cases.
39. The response of the guardians to this submission was that, although a finding of contempt was being pursued as a relief within the contempt motions, the CFA itself had been clear in its submission to the court that it accepted that it was in contempt of the orders of 8 February 2024, and that as such it was arguable that the progression to a formal court finding of contempt was ancillary and unnecessary in the face of "this incontrovertible and admitted fact by the ... contemnor".
40. The Judge did not accept this argument, firstly given what he described as the CFA's robust denial of being in contempt of court, albeit he noted that the CFA accepted that the special care orders were not being given effect. As the Judge put it, "This case is but one of several where special care orders have not had effect because the CFA asserts it cannot open up available beds by reason essentially of staffing issues" (para. 25). Secondly, as each guardian had repeatedly asserted, the event sought to be achieved by each application was never the formal finding of contempt or the imprisonment of an officer of the CFA, rather, "[t]he desired outcome from the start was that the CFA would comply with the order it had sought and obtained and thus provide a special care bed to a vulnerable child whose level of risk was escalating beyond all control. This point was reinforced throughout in affidavit evidence and in oral submissions as each guardian ad litem sought to bring the motions to hearing."
41. The Judge went on to state:
"This is the truth of the matter. The Court accepts that the GAL in each case was simply doing all that was possible to get the child into a Special Care Unit. And the route decided upon with the benefit of the advice of the legal team was an obvious and understandable road to travel - and probably the only one available."
42. In each case, the guardian argued in the court below that it could not be seriously contended by the CFA that in order for each guardian to obtain their costs they would have to proceed with the first part of each motion i.e. to hold the CFA in contempt in circumstances where the CFA had by this time "finally managed to comply with the [special care] order" in each case, and where the CFA had accepted it was in contempt. As to this submission, the Judge stated: "[o]n this the Court will repeat that the CFA has not admitted contempt nor has that been established". Nonetheless, he considered that the logic of the submission was "obvious", stating:
"The fact is that the GAL agitated on behalf of the child in each case by pursuing the remedy which appeared to be worthwhile pursuing and had no reason to pursue it further because the objective was achieved. Whether or not that happening - the bed in special care - is completely unrelated to the motion in each case is beside the point". (para. 27)
43. The Judge went on to note that the guardians were ready to proceed with their respective initial motion on 21 March 2024 and that the adjournment which had been granted to the CFA had facilitated a second motion to be issued in each case, described as counsel for the guardians "as a belt and braces approach" so as to ensure that no argument could be advanced concerning service which would have delayed the guardians advancing the contempt motions to vindicate the children's rights. He observed that much had been made by the CFA of the fact that two motions seeking to hold it in contempt had issued in each case. As is clear from his judgment, the Judge considered this of little import, stating:
"... The situation is that a belt and braces approach was adopted by the GAL for fear that a procedural defence might arise which could be guarded against by issuing a second motion. The second motion really added nothing to the substance of the remedy being pursued and the GAL in each case had reason to be cautious. A procedural defence in Plenary Proceedings in respect of another child in a similar position had succeeded as this Court found that it was correct. The decision in that case no doubt escalated any anxiety concerning procedural correctness in respect of the motions." (para. 29)
44. The Judge was satisfied that the contempt motions had not been heard or determined and that "the substance of the issues was not ventilated in Court by the parties". "Each GAL decided for good reason that it was no longer necessary to pursue the motions". (para. 30) In those circumstances, he considered that the justice of the situation required the consolidation of the motions in each case and that in each case they would be treated as one as far as costs and the adjudication of costs were concerned.
45. As he noted at para. 31, the Judge had been referred by the CFA to the decisions in Cunningham v The President of the Circuit Court [2012] IESC 39 and Hughes v The Revenue Commissioners [2021] IECA 5 which set out the law on costs in cases which become moot. However, the Judge considered that the continuum involved in child care proceedings, and the importance of a focus on the outcome (the Judge there harking back to the words of MacMenamin J. in CFA v. O.A.) illustrated some difficulty in fitting the two cases he was dealing with neatly into the category of proceedings which have become moot due to either entirely external events or the unilateral action of one of the parties. He stated:
".... In these two cases the objective of each GAL was to get each child a bed. The motions issued because the CFA was not giving effect to the special care orders and was not complying with its statutory duties. The motions became redundant or moot when this changed and beds were provided to both children. The CFA provided the beds and its actions in doing so meant that the motions did not need to proceed. While the CFA was free to exercise its powers in accordance with its legal obligations and did so in providing the beds to the two children, this represented a seismic shift in its position. If it had done so when the orders were made or before the motions issued then the motions would not have been necessary." (para. 31)
46. According to the Judge, the court had to be careful to avoid treating the legal position as illustrated in Cunningham v. The President of the Circuit Court and Hughes v. The Revenue Commissioners as a set of fixed or rigid rules and he noted:
"The case law emphasises that the Court has an over-riding discretion in relation to the awarding of costs. The framework provided in the decisions is a guide to the exercise of the Court's discretion when dealing with costs - and should not be applied inflexibly or in an excessively prescriptive manner" (para. 32).
47. In its written submissions in the court below, the CFA's position was that "Since the event in both cases has gone the way of the Agency, it should not be necessary to address the frailties in both motions but should it be necessary counsel will explain to the Court why both motions were on a substantive basis bound to fail".
48. The Judge's observations in respect of this submission, were in summary, as follows:
· In circumstances where the court had given each side adequate time for the preparation and circulation of submissions, the CFA's inclusion of the aforesaid paragraph was unacceptable as it was unfair to the other parties and it lacked the requisite required precision.
· The CFA's opinion that the event had gone its way was not shared by the court and was "over simplistic".
· At the time the motions issued, the CFA was not giving effect to the special care orders made on 8 February 2024. "It is not known what the Court would have decided if the motions did proceed to hearing". The court would have expected an explanation for the special care orders not being given effect. "Whether or not the CFA would have been successful in defending the motions in each case is an unanswered question... [t]o assert that the motions were bound to fail is an argument which is untested".
· The "frailties in both motions" referred to by the CFA would likely have generated considerable argument in the event of the motions having proceeded. The CFA's argument may or may not have prevailed.
· A debate as to the likely outcome of the motions was neither wise nor warranted "as the focus should really be on the cause of the mootness".
· The actual circumstances in each case are such that the issue remains one to be decided by reference to the requirements of justice.
49. The guardians' respective submissions in the court below were to the effect that the allocation of special care beds to the children on behalf of whom the contempt motions had been brought was neither coincidence nor happenstance. This submission was made in response to the affidavit evidence of Mark Yalloway of the CFA sworn on 8 May 2024 for the purposes of the costs hearing in which it was averred that the contempt motions did not play any role whatsoever in the allocation of the special care beds to H and K. As the Judge noted, "This is the sworn evidence before the Court on this specific issue. Notwithstanding the coincidence referred to by each GAL the Court will proceed on the basis of this sworn evidence" (para. 35).
50. As far as the Judge was concerned, however, the matter did not end there, and in his view, he was required to have regard to the particular nature and circumstances of each case. At para. 36, he found the following aspects common to each case:
"(a) These children were in such a vulnerable and dangerous place in life that they both needed a bed in special care - and the CFA applied for special care orders for that reason.
(b) The CFA did not give effect to the orders.
(c) The reason for non-effect appears to be or is said to be staffing issues in the Special Care Units - and they are long standing. While no affidavit on the substantive issue was filed in these proceedings by the CFA this difficulty concerning staffing has been mentioned many times by the CFA in the Special Care List.
(d) The situation of each child continued to deteriorate while the order ran with no effect. It is clear that both children suffered harm as a result of no bed being provided to them in special care when it should have been.
(e) The CFA offered no light at the end of the tunnel in terms of bed availability - thus compelling each GAL to act decisively - by pursuing a remedy which appeared to be worthwhile pursuing - and which was probably the only remedy in sight.
(f) Each GAL was entitled to feel duty bound to so act.
(g) Each child was entitled to have a fearless advocate.
(h) Each child needed and needs a fearless advocate.
(i) The CFA was entitled to decide how to defend the motions. However, the Court constantly requests a level of collaboration between all participants in the Special Care List. This is essential when all should have the one objective - safeguarding the welfare of children in significant need. The Court reminded the parties at an early stage of this need and has frequently emphasised the desire for a 'kind hands - kind words' approach by all in the interests of the welfare of the vulnerable children involved. The Court considers that the CFA did not give adequate weight to this need in responding to the complaints, concerns, and motions of the guardians. The Court is not blind to the fact that the CFA had to take a serious view of the 'Contempt applications' but doing so surely did not eliminate the option of a more conciliatory and measured approach than that adopted - particularly when each GAL had been very clear in the objective being pursued. A consequence of the highly combative defence strategy was that both sides became polarised and any opportunity for desirable collaboration was lost. Another was the delay which might and probably would have been avoided if the substance of the complaints and escalating concerns were addressed at an early stage by communication/correspondence and affidavit evidence. The Court has been left without any good explanation as to why the substance of the complaints and concerns - no bed being made available for each child - was not addressed early on in the motion history in each case in circumstances where the CFA has in several other cases and instances aired its explanation to the Court for the beds not being available.
(j) Each GAL acted bona fide and responsibly throughout.
(k) Parity or Equality of arms is a consideration in the Special Care list. When dealing with extremely vulnerable children - often from chaotic family backgrounds, from impoverished homes and abounding neglect - a Court should be slow to hinder or discourage the existence and availability of any scaffolding that may assist the child. The resulting cost is no more than a fair and just effort by a civilised society to give a chance to children born into homes where there is none. The stuff of the Special Care List is largely helpless traumatised children often with no one to speak up for them and who are usually slow to trust anyone.
It should be acknowledged that not all of the children in the Special Care List are from dysfunctional backgrounds although the majority usually are.
And in any event, all of these vulnerable children deserve every chance that can be provided to them - including the availability of a GAL willing and able to act tenaciously in their best interests. A GAL so acting should not have an order for costs made against him/her. On the contrary, a GAL so acting should have his/her costs.
(l) This Court would be leaving something that needs to be said unsaid if it did not compliment the extra-ordinary work of the CFA staff in the Special Care Units in the state - Coovagh House, Ballydowd and Crannóg Nua. As the parties are aware the Court makes a point of visiting these Special Care Units and the children in them who wish to meet. Children in need of special care who get it almost always benefit from it - and at least are normally kept safe. Children in respect of whom special care orders are made which orders are not given effect immediately are suffering as a result. The Court cannot comprehend the view that the efforts of the guardians in each of these cases to alleviate that suffering and to help these children should be criticised or in some way penalised.
(m) It is also true that Section 26 of the 1991 Act pursuant to which the guardian was appointed in these proceedings makes no provision for the award of costs against a Court appointed guardian. The section allows for the payment of those costs by the Agency [s.26(2)] or on application by the Agency for those costs to be paid by another party to the proceedings [s.26(3)]. It is true that the situation in these cases is probably something never contemplated by the legislature in the sense of action being taken by a guardian by reason of the CFA not giving effect to a special care order. Yet, there is some force in the submission that it must be the case that the legislative intention in drafting the section was to prevent the scenario arising here - whereby the Agency might seek an award of costs against a Court appointed guardian and thus potentially grossly inhibit the role of such a Court appointed professional in cases such as these. It might however be conceivable, albeit unlikely, that a case would arise where a GAL appointed for a child in respect of whom a special care order is made might expose himself or herself to an order for costs against him/her [e.g. a person so appointed after completely and deliberately misrepresenting his/her qualifications and experience - or perhaps a GAL making wholly unmeritorious applications or duplicating applications/proceedings]. Whatever of such possibilities, these are not such cases."
51. Against all of the above, the Judge noted that the CFA was seeking its costs against H's and K's respective court-appointed guardians who, the Judge was satisfied, had acted "properly and professionally". (para. 37) As the Judge observed, it was of great concern to the court that the CFA had not given effect to the special care orders. Also of concern was the CFA's decision to seek costs against each guardian in the circumstances of the instant cases. As the Judge put it:
"That decision suggests a fundamental and ominous failure to realise, or worse perhaps a decision to ignore, how completely unacceptable the CFA failure to give effect to special care orders actually is - this in a country where the rule of law is expected to prevail and when the life, health, safety, development and welfare of children is at risk" (para. 39).
52. The Judge, therefore, did not award costs against the guardians but rather, in all of the circumstances, made an order for costs in favour of each as was "appropriate and just" for the reasons he had set out, to be adjudicated in default of agreement.
53. As I have said, it is from those orders that the CFA now appeals.
Discussion and Decision
54. Arising from the notices of appeal, the respondent notices and the respective submissions of the parties, the following issues fall for consideration:
· The guardians' standing to bring the contempt motions.
· Whether the contempt motions were rendered moot by the allocation of special care beds to H and K.
· The "event" for the purposes of costs.
· Alleged errors on the part of the Judge in determining that the contempt jurisdiction was open to the court.
· The factors relied on by the Judge in the exercise of his discretion on costs.
Each of those issues are addressed below.
The guardians' standing to bring the contempt motions
55. One of the arguments the CFA advances is that the guardians did not have the necessary capacity or locus standi to bring the contempt motions. It is submitted that the authorities in A.O'D v. Judge O'Leary [2016] IEHC 555 and HSE v. D.K. [2007] IEHC 488 demonstrate that the appointment of a guardian pursuant to s. 26 of the 1991 Act does not go so far as to permit that guardian to seek to hold the CFA and/or its CEO in contempt. In aid of his argument in this regard, counsel points to the dictum of Baker J. in AO'D at the conclusion of her judgment:
"To describe the guardian ad litem appointed by the order in the present case [in the District Court] as a 'party' is neither accurate nor helpful. The authorities and the provisions examined by me suggest that the role of the guardian ad litem may depend on the context of the appointment and the extent of the authority vested by the order. The order made by the District Judge provided that Ms Kerr may act as advocate through her solicitor only with the leave of the court. She would not need the leave of the court to act as advocate were she to be a party in the true sense, so some difference is to be discerned in the role envisaged by the order from the role that may be played by a full party, or a party who is in opposition to another in the proceedings. I do not therefore consider that the guardian was permitted to act as a party to the extent or in the manner for which the applicant contends." (para. 114)
Counsel also points to the dicta of MacMenamin J. in HSE v. D.K. as to the role of a guardian ad litem:
"6. (a)...
(b) The function of the guardian should be twofold; firstly to place the views of the child before the court, and secondly to give the guardian's views as to what is in the best interests of the child.
(c)...
(d) A duty of a guardian ad litem is to ensure compliance with the constitutional rights of a minor. For this purpose, the guardian should ensure that there is provided to the minor a means of making his or her views known.
(e) A guardian ad litem may fulfil the dual function of reporting to the court regarding the child's care and also by acting as the child's representative in any court proceedings and thereby communicating to the court the child's views.
(f)...
(g) The guardian ad litem should meet the minor as often as necessary in order to be satisfied that the minor's wishes and views are adequately represented regarding his or her detention and care.
(h)...
(i)...
(j)...
(k) When proceedings are listed before the court, the guardian ad litem should, where necessary, prepare a report specifically addressing the issues set out above. Additionally, where an issue arises from the contents of any other reports are prepared for the court by other parties to the proceedings, the guardian ad litem should, where necessary, address those issues in the report. This can only be done where such reports are available to the guardian ad litem in sufficient time.
(l)...
(m)...
(n)...
(o) The guardian ad litem should express a view to the court as to how a case is best kept under review after a minor is discharged from secure care. When a minor is discharged from such care the guardian ad litem should confirm with the court whether they are to continue to remain involved in the proceedings."
Based on the aforesaid dicta, the CFA's contention is that there was no legal authority to support what the Judge had stated at para. 14: "On the facts of each case the guardian ad litem was quite properly seeking to vindicate the child's rights. This was clearly within the role and responsibility of each GAL".
56. I agree with the guardians that the CFA's argument in this regard is misconceived. The CFA's reliance on the dicta of Baker J. in A.O'D fails to acknowledge and appreciate the development of the role of the guardian ad litem since the decision in that case, particularly from the point of view of the guardian's participation in the High Court special care list. Moreover, it is important to recall that the A.O'D case was decided before the introduction of the statutory scheme for special care. More fundamentally, the CFA's position fails to have regard to para. 57 of AO'D where Baker J. refers specifically to the fact that the function of a guardian ad litem appointed under s. 26 of the 1991 Act is to represent the child in the litigation and to promote the interests of the child and the interests of justice.
57. Accordingly, there is no merit in the argument that the guardians did not have the requisite standing to bring the motions in question.
Were the contempt proceedings moot?
58. The guardians' contention in the High Court was that the contempt applications were rendered moot by reason of the fact that H and K each obtained a bed in special care. The CFA's position was that the proceedings were not moot.
59. However, as is evident from para. 31 of his judgment, the Judge considered that the contempt motions "became redundant or moot" when beds in special care were provided for H and K. It is, however, the case that the Judge also accepted the sworn evidence of Mr. Yalloway that the fact that contempt motions had been issued in the proceedings did not play any role whatsoever in the allocation of the beds "[n]otwithstanding the coincidence referred to by each GAL...". As to the consequences of the mootness, whilst the Judge had regard to the decisions in Cunningham v. The President of the Circuit Court and Hughes v. The Revenue Commissioners as to the principles to be applied when considering the issue of costs in moot cases, he considered that the present cases did not fit neatly into the category of proceedings which have become moot due to entirely external events, or due to the unilateral action of one of the parties.
60. The CFA's position on the appeal is that contrary to the Judge's findings, mootness did not arise and that the salient backdrop to the costs hearing were the procedural difficulties which the CFA had highlighted in its submissions, coupled with the contents of Mr. Yalloway's affidavit which clearly stated that the allocation of special care beds to H and K was not related to the contempt applications brought by the guardians. It is submitted that the guardians could not therefore rely on the fact that there was no utility in proceeding with the contempt motions because H and K had by then obtained, or were shortly going to obtain, beds in special care in circumstances where the allocation of the special care beds was not made in response to the contempt motions but rather made independently of same, as explained by Mr. Yalloway in his affidavit.
61. On the other hand, the guardians' position on the appeal is that within the context of the within proceedings the desired outcome of the proceedings was ultimately achieved. They argue that this outcome would not have been achieved but for the issuance of the contempt motions. They point to the comments of Clarke J. in Veoila Water UK plc v. Fingal County Council and Ors [2007] 2 IR 81, at para. 12 as support for their position:
"In the ordinary way, if the moving party required to bring either the proceedings as a whole (where the costs of the litigation as a whole are under consideration) or a particular interlocutory application (where those costs are involved) in order to secure a substantive or procedural entitlement, which could not be obtained without the hearing concerned, then that party will be regarded as having succeeded even if not successful on every point".
62. The guardians thus contend that the arguments in the appeal come down to the factual chronology and whether the Court appreciates and accepts the ultimate goal of the guardians' contempt applications. They contend that in the court below, the Judge carried out a detailed assessment of the circumstances leading up to the ultimate compromising of the contempt motions by the admission of H and K into special care. They point to the factors of which the Judge took account in awarding them their costs, as set out at para. 36 of the judgment and they contend that this was entirely in keeping with the obligation on the Judge pursuant to s. 169 (1) of the 2015 Act to have regard to the "nature and circumstances of the case".
63. In the first instance, I am satisfied that the Judge did not err in characterising the issues before him in the manner he did. I agree with the Judge when he opined that the court had to be careful about treating the legal position outlined in Cunningham v. The President of the Circuit Court and Hughes v. The Revenue Commissioners "as a set of fixed or rigid rules". As I have earlier observed, in this regard, the Judge was clearly echoing the approach of MacMenamin J. in CFA v. O.A. (at para. 42) which he had quoted earlier in his judgment. Although satisfied that the allocation of beds to H and K rendered the contempt proceedings moot or redundant, the Judge nevertheless considered that "[t]he continuum involved in child care proceedings and the importance of a focus on the outcome" illustrated some difficulty in fitting the cases neatly into either the category of proceedings which have become moot due to entirely external circumstances or due to the unilateral action of one of the parties.
64. As has already been referred to, the approach adopted by the Judge for the purposes of the exercise of his discretion was to look to the provisions of s. 169 of the 2015 Act, and as he said at para. 21, he had regard to the particular nature and circumstances of the case and the conduct of the proceedings by the parties including the matters set out in s. 169(a)-(g) of the 2015 Act.
The "event" for the purposes of costs
65. In its appeal submissions, the CFA maintains the "event" for the purposes of costs was in its favour, the CFA describing the event in each case as whether the guardian had been successful in obtaining the reliefs sought in respect of the alleged contempt of the CFA and its CEO, which the CFA says was not achieved in either case. It is submitted that the event in respect of each contempt motion was the fact that the guardians decided not to proceed with their attempt to obtain the relief claimed and to which they had put the CFA to the expense of seeking to oppose.
66. Albeit contending that the contempt proceedings were not rendered moot by the allocation of beds to H and K, counsel for the CFA submits that the legal principles which were applied by this Court in Butler Duignan v. Chief Appeals Officer [2024] IECA 188 (a case on mootness) should be applied here. In Butler Duignan, the judicial review proceedings were rendered moot where the Chief Appeals Officer allowed the internal appeals of the applicants. The issue that remained was costs, and the only evidence offered in that regard were two affidavits on behalf of the Chief Appeals Officer which averred that the holding of the hearings concerned was independent of the judicial review proceedings. Here, the CFA says that as per Binchy J. (writing for the Court) in Butler Duignan, "... entitlement to costs in proceedings that have become moot is not to be assessed by asking the question whether or not it was reasonable to issue the proceedings", rather it is said (again relying on Butler Duignan) that the critical issue is whether there is established in evidence a causal nexus between the issuance of the motions for contempt and the allocation of special care beds to H and K. It is submitted by the CFA that the uncontroverted evidence is that there was not such causal nexus in circumstances where the contempt proceedings here did not achieve a result, the special care beds having been allocated to H and K by means unconnected to the contempt motions.
67. The guardians say that there is no merit in the CFA's contention that after the reason for the contempt motions evaporated (by reason of the allocation of special care beds to H and K) the guardians should nevertheless have continued to try and pursue findings of contempt against the CFA. They submit that after it was intimated that special care beds were available for the children, the guardians did what was appropriate as soon as they became aware that was the case, i.e they informed the CFA that they would no longer be seeking declarations of contempt. Counsel submits that it is in those circumstances that one must consider what the event is in these cases.
68. The guardians also say that while they have to accept what Mr. Yalloway says, namely that the allocation of beds to H and K had nothing to do with the contempt motions, Mr. Yalloway in fact misses the point. Counsel points to the fact that having expended time and energy in trying to get the CFA to do what it should have done the moment the special care orders were made on 8 February 2024, the guardians' solicitor wrote a number of warning letters to the CFA (to no avail). He contends that the fact of the matter is that at the time the contempt motions issued, the CFA was not complying with the special care orders despite the guardians' letters entreating it to allocate beds to the children. Furthermore, the guardians say Mr. Yalloway's affidavit was the only affidavit filed by the CFA, and that there was not a screed of evidence put before the Judge to explain or mitigate the CFA's ongoing failure between 8 February 2024 and early April 2024 to allocate beds to H and K.
69. Hence, the guardians' overarching submission is that the event here was the bringing of the contempt motions at a time when there was no compliance by the CFA with the special care orders.
70. I note that in the court below, the Judge elected to approach the matter from the perspective of the guardians' objective in issuing the contempt motions. He was satisfied that "the objective of each GAL was to get each child a bed", which was ultimately provided by the CFA. Furthermore, while he correctly noted that "the CFA was free to exercise its powers in accordance with its legal obligations and did so in providing the beds to the two children", in the view of the Judge, the provision of beds nevertheless "represented a seismic shift in [the CFA's] position". I am satisfied that the Judge's conclusion in this regard was entirely within the range of conclusions he was entitled to draw in the context of exercising his decision on costs, and in the context of his earlier finding that in issuing the contempt motions, "the GAL in each case was simply doing all that was possible to get the child into a Special Care Unit".
71. Furthermore, from the relevant affidavits sworn on or on behalf of the guardians in the High Court, and the oral submissions made on their behalf, the Judge was apprised that the relief being sought was to put pressure on the CFA and that the subsequent aspects of the contempt order sought, namely attachment and committal, were not being sought. This is evidenced in the affidavit sworn by K's guardian. At para. 3 he avers:
"I also state, for the avoidance of any doubt that although the Notice of Motion herein refers to various reliefs sought by me, at this time I only wish to seek a declaration from this Honourable Court that the Child & Family Agency is in contempt of the Court Order made in these (sic) on 8th February 2024 (as well as the costs of these proceedings). I say and believe and am advised by counsel that although the Notice of Motion refers to relief, including Orders of attachment and committal, this is done so as to comply with Order 44 of the Rules of the Superior Courts and not because such relief is immediately sought. Rather I believe a declaration that the CFA is acting in contempt of the said Order has a value to itself and will, it is hoped, lead to the Agency acting so as to purge that contempt by complying with the Order without the necessity of seeking the other reliefs set out in the Notice of Motion."
72. Counsel for the CFA argues however that this averment cannot be said to support the finding of the Judge at para. 25 that "the event sought by the applicant to be achieved was never a formal finding of contempt or the imprisonment of an officer of the CFA" in circumstances where the guardian goes on to state at para. 20 of his affidavit that the contempt motion and the reliefs therein "are warranted justified and proportionate in the context of the proven and accepted level of risk...". Counsel asks that the Court note the focused attempt on the part of both guardians to repeatedly serve the CFA's CEO with papers which, it is said, suggests that the guardians were not abandoning the other reliefs sought. It is also submitted that para. 20 of K's guardian's affidavit shows that the objective of the guardians was to get the CFA to prioritise H and K for the allocation of a bed in special care, which was not appropriate, as this was something the CFA had said from the outset it could not do.
73. The CFA's submissions notwithstanding, I perceive no error in the Judge's acceptance of the guardians' assertion that the event sought by them to be achieved was never a formal finding of contempt or the imprisonment of an officer of the CFA. As the Judge put it, "[t]he desired outcome from the start was that the CFA would comply with the order it had sought and obtained and thus provide a special care bed to a vulnerable child whose level of risk was escalating beyond all control". Nothing the CFA has said persuades me that the guardians' objective was otherwise.
Alleged errors on the part of the Judge in determining that the contempt jurisdiction was open to the court
74. One of the CFA's principal contentions on appeal is that the Judge was wrong to determine that the contempt jurisdiction was open to the court. It submits that this central issue was not addressed in the High Court and, so, could not be assumed. The CFA also contends that there were procedural "frailties" in the contempt motions such that they could never have succeeded.
75. It is common case that in preparation for the hearing on 11 April 2024, the CFA filed its written submissions in the court below which adverted, inter alia, to what the CFA said were the frailties which appeared to arise in the contempt applications. The alleged frailties were not elaborated on in the written submissions. What was canvassed in the submissions was that the guardians had "discontinued or abandoned" their respective first motions for the purposes of s. 169(4) of the 2015 Act. It was also argued that either the guardian had abandoned their respective second motions or that the CFA had been entirely successful as regards the guardians' respective second motions if same were to be struck out (which was likely). It was also contended at para. 18 of the written submissions that since the "event" had gone the way of the CFA it should not be necessary to address the frailties in the motions but that should it be necessary, counsel would explain to the court why on a substantive basis the contempt motions were bound to fail.
76. As we see, at para. 33 of the judgment, the Judge considered para. 18 of the CFA's written submissions unacceptable and lacking precision. Moreover, he considered, inter alia, that the "frailties in both motions" would likely have generated considerable argument and that a debate on the likely outcome and merits of the motions was "neither wise nor warranted".
77. Now, in the course of his submissions to this Court, counsel for the CFA elaborates on the alleged frailties which he says attached to the contempt motions. He points to O. 41, r. 8 of the RSC which provides:
"8. Every judgment or order made in any cause or matter requiring any person to do an act thereby ordered, shall state the time, or the time after service of the judgment or order, within which the act is to be done; and upon the copy of the judgment or order which shall be served upon the person required to obey the same, other than an order directing a mortgagor to deliver possession to a mortgagee, or an order under section 62 subsection (7) of the Registration of Title Act 1964, there shall be endorsed a memorandum in the words or to the effect following, viz.:
'If you the within named A.B. neglect to obey this judgment or order by the time therein limited, you will be liable to process of execution including imprisonment for the purpose of compelling you to obey the same judgment or order.'"
78. Counsel for the CFA submits that O.41, r.8 is being raised in the context of querying whether an order such as a special care order could ever be amenable to the processes under Order 44 RSC.
79. The CFA also points to the fact that a motion seeking the attachment and committal of the CFA and its CEO had been issued before the special care orders with penal endorsements had even been served on the CEO. Moreover, counsel says, when the special care orders with the requisite penal endorsements were served on 25 March 2024, they purported to allow fourteen days for compliance with the special care orders, for which provision is not made in the rules and was not made in the special care orders.
80. Furthermore, on 27 March 2024, the respondents issued and served (28 March 2024) their second motions which were also put in for hearing on 11 April 2024. Counsel for the CFA submits that whilst the reason that these second motions were issued and served may have been the fact that the first motions had issued before the orders with the requisite penal endorsements had been served on the CEO, the fact of the matter is that the High Court was not told that this was in fact the reason for the issuing and serving of the second set of motions. The CFA further argues that the decision of the guardians to abandon their respective first motions was not simply a "belt and braces" approach but rather a tactical litigation choice based on the evidence available to them at the time and the obvious gaps in their proofs.
81. It is said that in the court below, the CFA was ready to defend the contempt motions, but the guardians decided not to proceed. The CFA's position is that the actions of the guardians in deciding not to proceed deprived the CFA of the opportunity to highlight the frailties which the CFA contend attached to the contempt motions.
82. Counsel for the CFA says that at the costs hearing in the High Court (against the backdrop where the guardians had earlier made it clear to the High Court that they were not proceeding with their contempt applications), he raised all of the above points in his submissions to the court. However, neither the guardians' legal representative nor the Judge responded to the issues raised by the CFA.
83. The CFA's principal contention on the appeal is that the contempt proceedings could never have succeeded. Whilst it is accepted that this Court may not want to make a finding that the contempt proceedings could never have succeeded, counsel nevertheless emphasises that the guardians have never explained or addressed how they hoped to surmount what on its face was a perfectly good defence advanced by the CFA to the contempt applications, a defence which, counsel says, the CFA was entitled to pursue in circumstances where there was a motion to attach and commit its CEO.
84. In his submissions to the Court, counsel for the guardians highlighted that the motions for attachment and contempt were brought pursuant to the RSC because at the time of their issuing, the CFA were expressly telling the High Court in other proceedings (B v CFA) that the exercise of the plenary summons procedure in seeking declaration that the CFA was in contempt was not the proper procedure. Counsel asserts that it was against that context that the procedures provided for in Order 44 RSC were invoked by the guardians.
85. Insofar as the CFA contends that there are procedural frailties attaching to the contempt applications, counsel for the guardians makes the following points. First, the contempt motions were brought within the special care system and have the same record number as the relevant cases in which the special care orders were made. Secondly, the breadth of argument advanced by the CFA on appeal relating to alleged frailties in the procedures adopted by the guardians was never raised in the court below, neither in the CFA's written nor its oral submissions. Thirdly, it is submitted that the jurisprudence of this Court is unequivocal that the issue as to the merits of the substantive application (here, the contempt motions) is irrelevant for the purposes of an appeal against costs.
86. As regards the latter submission, I accept that to be the case. This is clear from the judgment of the Court in Hughes v. The Revenue Commissioners (para. 33) and Butler Duignan v. Chief Appeals Officer (para. 15).
87. Hence, insofar as the CFA seeks to raise technical issues pertaining to the contempt motions, its submissions in that regard are misconceived from the outset. As said by the Judge at para. 30 of the judgment, "[t]he motions were not heard or determined and the substance of the issues was not ventilated in Court by the parties".
88. Furthermore, and in any event, such arguments as the CFA may have advanced regarding alleged procedural frailties in the contempt motions were specifically addressed by the Judge at para. 33 of the judgment, where the Judge opined that the CFA's written submissions on the point lacked the requisite precision. There is nothing in the substance of the decision of the Judge which deals with the issues the CFA now seeks to raise by way of alleged procedural flaws. This is because, as the Judge said, whilst there was reference made by the CFA in its written submissions to frailties, this argument was not pursued by the CFA with the requisite precision. Other than a bare assertion to this Court from counsel that such matters were articulated in oral submissions in the court below, I have heard nothing in the appeal that supports the suggestion that the Judge ignored a specific oral argument canvassed by the CFA as regards the specific frailties complained of. As said by Binchy J. in Butler Duignan, "[g]enerally speaking, if a party wishes to contend on appeal that a judge of first instance erred by failing to address a particular issue or argument, the party must establish that the issue or argument was raised before the first instance judge, because a judge will not usually be held to have erred in failing to address an issue or argument that was not raised before him or her." Here, it has not been established that the "frailties" in the contempt motions were made to the Judge in sufficiently precise terms.
89. It is well rehearsed in the jurisprudence of this Court that if an issue has not been raised in the court below, this Court should be most reluctant, to the point of declining, to hear such submissions. Accordingly, this Court declines to express any view on the frailties said by the CFA to attach to the contempt motions.
The factors relied upon by the Judge in the exercise of his discretion on costs
90. The matters upon which the Judge relied in awarding the guardians their costs are set out in his judgment (para.36, (a)– (m)) (and are reprised at para. 50 of this judgment). In response to a question from this Court relating to those factors, counsel for the CFA described factors (e) and (f) as wrong in law in circumstances where the Judge had already accepted that the allocation of special care beds to H and K had nothing to do with the contempt motions, and he contends that the Judge's approach was inconsistent with his acceptance of Mr. Yalloway's affidavit evidence. It is also submitted that as the Judge had held that the allocation of beds to H and K was not the result of the contempt proceedings, he should not therefore have suggested that the contempt motions were a remedy being pursued by the guardians in order to obtain special care beds for H and K. It is therefore argued that there is a "real disconnect" in the approach of the Judge.
91. I disagree. In my view, it can hardly be gainsaid that H and K suffered harm by the fact that no special bed was made available to them once taken into special care. Moreover, I consider it well within the remit of the Judge's discretion as to costs for him to consider the guardians' actions in bringing the contempt applications occurred in circumstances where, as the Judge said, "[t]he CFA offered no light at the end of the tunnel in terms of bed availability" and where the Judge was entirely satisfied, as is clear from para. 25, that "the GAL in each case was simply doing all that was possible to get the child into a Special Care Unit". No more than in B v. CFA where Hogan J. was satisfied that "... [i]t is plain that the plaintiffs only sought the next step more or less out of a sense of desperation when there seemed little immediate prospect that the order would otherwise be obeyed or that a place would be found for B", here, the guardians were in a similar predicament. Despite repeatedly asking the CFA for some sort of comfort, they were met with either silence or the stock answer that there were no special care beds for H and K.
92. With regard to factor (i), the CFA contends that the Judge's view was misconceived and that he erred in law in stating that a level of collaboration with the other parties was required from the CFA as he failed to acknowledge the nature of contempt applications and what was required to be met by the CFA by the issuing of contempt motions. Moreover, the Judge did not elaborate as to the nature of the collaboration required.
93. To my mind, the CFA overstates what the Judge said in this regard. The Judge was simply reminding all concerned that what was fundamentally at issue here was the safeguarding of the welfare of two children in significant need. It is quite clear from the judgment that the Judge, as he himself said, was not blind to the fact that the CFA had to take a serious view of the contempt applications. However, there was nothing untoward in the Judge opining that doing so did not eliminate the option of a more conciliatory and measured approach than that adopted by the CFA. In any event, this was but one of the numerous factors considered by the Judge.
94. The CFA also argues that whilst factors (l) and (m) and what is set out at paras. 37-39 of the judgment might well have justified the High Court in making no order for costs they do not advance a case for costs to be awarded to the guardians. Contrary to the CFA's submission, in my view, what the Judge adverted to at (l) and (m) and in paras. 37-39 were all matters to which he was entitled to have regard in exercising his discretion in the manner he did. I agree with his view that the efforts of the guardians should not be criticised or penalised. The Judge was also entitled to express his concern at the CFA's failure to give effect to special care orders and his concern that the CFA's decision to seek costs "suggests a fundamental and ominous failure to realise, or worse perhaps a decision to ignore, how completely unacceptable the CFA failure to give effect to special care orders actually is" where the life, health, safety, development and welfare of children is at risk.
95. As Hogan J. said in B v. CFA:
"There remains the fact that a State agency established by the Oireachtas did not comply with a specific High Court order for the best part of eight months. This may well have been because it lacked the means to do so and that compliance was rendered effectively impossible. One way or another, it is a totally unsatisfactory state of affairs which challenges the very operation of the rule of law." (para. 55)
Here, I am satisfied that the conclusion arrived at by the Judge on the issue of costs and his reasons for that conclusion were entirely within the parameters of his discretion. Moreover, he was, in my view, well within his discretion in holding, as he did, effectively, that the term "event" for the purposes of determining costs was not the best fit for childcare proceedings and that what MacMenamin J. in CFA v. O.A. described as a more "all-encompassing" approach directed to what had been the outcome of the guardians' actions was more appropriate.
96. In the course of his submissions, counsel for the CFA submitted that certain observations at a level of principle which MacMenamin J. made in CFA. O.A about costs in childcare proceedings were apposite in these cases. He points to the observation, at para. 49, that the routine award of costs against the CFA was "bound to affect [its] decision-making capacity" in whether to bring proceedings at all, and the further observation, at para. 50, that routinely awarding costs against the CFA could give rise to the prospect that the CFA itself might become "over-careful" in deciding to bring proceedings, thereby putting children at risk.
97. Counsel contends that there is a considerable resonance in the comments of MacMenamin J. with what occurred in the present cases, and he asks the Court to draw a line between the perfectly meritorious childcare proceedings instituted by the CFA in respect of H and K, and a "fundamentally misguided contempt application" instituted on the part of each of the guardians. He submits that if the CFA is left in the position of having to pay costs for "a misguided procedural contempt application, which is withdrawn for reasons without having achieved the result actually sought" and in circumstances where a special care bed is made available to H and K on an "unconnected basis", that would be inviting similar type litigation to be replicated against the CFA "on a consistent and ongoing basis for the future".
98. Notwithstanding the CFA's reliance on the cautionary words of MacMenamin J., I do not believe that MacMenamin J. could have had in mind the scenario with which the Judge here was presented. Moreover, it is clear from his judgment that the Judge did not regard the actions of the guardians as misguided given his acceptance of their bona fides in seeking to ensure that H and K would be provided with the special care that their placement in the special care system warranted. At the risk of repetition, the CFA has not succeeded in persuading me that the actions of the guardians were otherwise than the bona fide efforts to ensure the optimum result for the minors on whose behalf they were acting. Furthermore, to borrow the words of Hogan J. in B. v. CFA, the actions of the guardians in bringing the contempt applications were "far from a pointless exercise".
99. In all the circumstances of these cases, I perceive no error on the part of the Judge either as to the factors he considered in his adjudication on the question of costs, or the manner in which he exercised his discretion.
100. It is worthwhile recalling the words of Murray J. in Hughes v. The Revenue Commissioners at para. 34 of his judgment:
"...The starting point is that the Court has an over-riding discretion in relation to the awarding of costs, and the decisions to which I have referred are intended to guide the exercise of that discretion. They are thus properly viewed as presenting a framework for the application of the Court's discretion in the allocation of costs in a particular context and should not be applied inflexibly or in an excessively prescriptive manner...".
101. In O. v Minister for Justice and Equality [2021] IECA 293 Collins J. succinctly set out the principles to be considered in respect of appeals concerning costs, principles numbers (5) and (6) of which are in the following terms:
"(5) Furthermore, an appellate court 'should not simply substitute its own assessment of what the appropriate order ought to have been but should afford an appropriate deference to the view of the trial judge who will have been much closer to the nuts and bolts of "the event" itself': Nash v DPP [2016] IESC 60; [2017] 3 I.R. 320, per Clarke J. (as he then was) ((Denham CJ. and O'Donnell, Dunne and Charleton JJ concurring), at para. 67.
(6) Absent some error of principle on the part of the trial judge, an appellate court should intervene only where it 'feels that the exercise by the trial judge of an assessment in relation to costs has gone outside of the parameters of that margin of appreciation which the trial judge enjoys': Nash, at para 67. Where the costs order is 'within the range of costs orders which were open to the trial judge within the margin of appreciation which must be afforded to a High Court judge', there will be no basis for appellate intervention: Nash, para 73."
102. Here, the Judge was undoubtedly much closer to the "nuts and bolts" of the "event" than this Court given especially his role in overseeing the Special Care List and indeed the circumstances of every child brought into special care, including H and K. There was no error of principle on the part of the Judge. Nor did he stray outside the parameters of the margin of appreciation which he enjoys. Consequently, I would dismiss the appeals and affirm the Orders of the High Court.
103. The Court will hear the parties for the purposes of the issue of the costs of the appeal at 10.00am on 21 May 2025.
104. As this judgment is being delivered electronically, Noonan J. and Binchy J. have indicated their agreement therewith and with the order I have proposed.
Result: Both Appeals dismissed