High Court of Ireland Decisions

1. I gave judgment in the above entitled proceedings on the 21st day of December 1998. On that occasion a number of applications were made to me by Counsel for the parties in regard to the matter of costs. On account of the special difficulties experienced in regard to costs in this type of application, and at the request of Counsel, I adjourned the matter of costs to be dealt with on the 15th January, 1999.

2. This is an application by Mr and Mrs B pursuant to Section 3 of the Adoption Act, 1974, together with an application by S M pursuant to Section 11 of the Guardianship of Infants Act, 1964. Mr and Mrs B with whom the child C was placed for adoption, sought an order dispensing with the natural mother's consent to adoption and they succeeded in their claim. The natural mother sought the return of C to her custody and, for reasons connected inter alia with the child's welfare, she did not succeed in her claim.

3. The normal procedure in cases under Section 3 of the Adoption Act, 1974 is that An Bord Uchtála is joined as a Defendant; the Board was fully represented in Court and led evidence as to the necessary documentation. St Louise's Adoption Society, which was the adoption society handling the adoption of C, was also a necessary party to the 1974 Act proceedings as well as being a Respondent to the Guardianship of Infants Act proceedings. St Louise's Adoption Society is managed and financed by the Eastern Health Board and is an integral part of the operations of the Eastern Health Board.

4. Before the initiation of both sets of proceedings the child C, was in the custody of the prospective adopters, Mr and Mrs B. The natural mother, S M, sought the return of her child and the prospective adopters, on account of their view concerning the welfare of the child, refused to comply with the natural mother's request. In order, therefore, for an essential decision to be reached in regard to C's future, it was incumbent upon both the prospective adopters and the natural mother to bring proceedings in this Court.

5. In the event, Mr and Mrs B have succeeded in their application. Their conduct throughout has been exemplary. They have a reasonable income, but they certainly do not have the financial resources which would enable them, without the severest of difficulties, to meet the costs of a case in the High Court lasting several days and requiring expert evidence. On the other hand their income is such that they do not qualify for legal aid from the Civil Legal Aid Board. They applied for such aid and were refused because their income exceeded the means test limit.

6. The natural mother has not succeeded in her claim. However, it cannot be said that she was in any way at fault in bringing her proceedings or in contesting the adopters' claim. S M has qualified for legal aid and was represented by both Senior and Junior Counsel and Solicitor through the Legal Aid Board, she therefore does not have to meet her own costs from her own resources. On the other hand she clearly does not have the resources to meet any order for costs which might be made against her.

7. An Bord Uchtála as part of its statutory duty has a particular role in all cases under Section 3 of the 1974 Act. While providing necessary evidence the Board did not play a major role in the proceedings. It had carried out its role in the adoption procedure correctly and competently.

8. St Louise's Adoption Society and the Eastern Health Board had been deeply involved in the events leading to the proceedings and brought essential evidence before the Court concerning the mother's agreement to place C for adoption. Again, they had carried out their role through social workers who, I found, had behaved correctly and with professional competence.

9. Both statutory bodies are clearly able to bear their own costs and did not make any application as regards their own costs.

10. Considering the matter of costs as a whole, therefore, the major problem that arises is that of the costs of Mr and Mrs B. In terms of the average civil action they have won their case, which they had to bring, and costs should follow the event. Clearly, however, it is neither just nor effective to make an order for costs against S M.

11. This problem of the costs of prospective adopters has regularly arisen in 1974 Act cases. In the early years after the enactment of the statute some provision to meet the costs of prospective adopters was made through the Attorney General's Scheme. The full costs were not met but at least some assistance was given. However, when the Civil Legal Aid Board and its Law Centres were set up a decision was made (by whose authority is not clear except that it was not by any judicial authority) that the Attorney General's Scheme no longer applied in these cases and that prospective adopters must rely on the Civil Legal Aid Scheme. This decision has the appearance of logic and fairness, but in practice the vast majority of couples with whom a child is placed with a view to adoption are persons whose means, while by no means extraordinarily large, exceeds the stringent means test limit which would qualify them for legal aid. On the other hand in my experience virtually all natural mothers in 1974 Act cases do qualify for legal aid and are, quite rightly, fully represented in Court by that means.

12. The reality of this problem was recognised by the Oireachtas when the later Adoption Act 1988 was enacted. Under this Act, which provides for the adoption under certain circumstances of children of married persons, the costs of the prospective adopters will in general be met by their local health board. Section 3 of the 1988 Act provides that either the health board itself will make the necessary application to this Court on behalf of the adopters, or the Court has power to order the health board to meet the costs of an application made by the adopters themselves. The normal procedure under the Act has in practice been that these applications are made and financed by the relevant health board.

13. As has been submitted to me by Ms Dooge, Counsel for the adopters in the instant case, there is therefore an effective discrimination as regards costs as between adopters applying under the 1988 Act and adopters applying under the 1974 Act. In my view there is no principle of reason or logic which would justify this discrimination. It has arisen as a matter of history and not as a matter of principle or policy. It is, as I see it, a considerable injustice to adopters who must apply under the 1974 Act in general, and to Mr and Mrs B in particular. It is a matter which cries out for legislative, or at the very least administrative, action.

14. Counsel for the adopters in the instant case has made an application that their costs should be met by St Louise's Adoption Society - in effect by the Eastern Health Board. There are at least two reasons why this is not a particularly satisfactory solution. Firstly St Louise's Adoption Society is not in any way at fault; it is not the party against whom any order is made; it is not in any sense a defendant in the 1974 Act case, but merely assisted the Court by providing witnesses and documentary evidence. Secondly, by no means all adoption societies are, as is St Louise's, managed and financed by health boards. In many cases under Section 3 of the 1974 Act the adoption society involved is a charitable body with very little financial resources. Such a body may well have difficulty in meeting its own costs, not to speak of the costs of the adopters.

15. Costs, however, are a matter for the discretion of the Court; and discretion allows for necessary departure from customary practices from time to time. Each case must be decided upon its own facts. With some hesitation, therefore, I have decided to grant the Applicants, Mr and Mrs B their costs of one set of proceedings (the proceedings under the 1974 Act) against St Louise's Adoption Society. In so doing I would be lacking in candour if I did not express a hope that the making of such an order may bring to the attention of the relevant authorities the urgent need for action to remedy the present unjust situation.