Judgment: 2013-11-27 · Court archive

Mother awarded reasonable costs for care review, but not counsel fees for the review itself

The District Court allowed costs for the mother’s participation in the costs application and counsel’s work preparing submissions on that application. It declined to certify counsel fees for the care order review.

District Court (An Chúirt Dúiche) · [2013] IEDC 23

Who, what, where, when and why

Who
  • Health Service Executive (Applicant)
  • first named Respondent
  • Child 1
  • Child 2
What

The District Court allowed costs for the mother’s participation in the costs application and counsel’s work preparing submissions on that application. It declined to certify counsel fees for the care order review.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

The mother’s counsel argued that she had meaningfully participated in the review, given evidence and submitted to cross-examination. The HSE opposed the costs application, arguing that the circumstances behind the care orders and the mother’s overall participation in the children’s lives should be considered. The court rejected that submission as a factor in deciding this application.

The District Court awarded the first named respondent reasonable costs for her participation in proceedings concerning a review of care orders for two children, but declined to certify counsel fees for the care order review itself.

In a judgment dated 27 November 2013 and cited as [2013] IEDC 23, the court considered the mother’s application for costs after a statutory review completed in April 2013. The review concerned a care order made in July 2009. The court had amended that order to include additional directions under section 47 of the Child Care Act 1991, following an inquiry into the children’s welfare and family access arrangements.

The children had been taken into the care of the Health Service Executive (HSE) in 2008 amid circumstances the judgment described as involving serious neglect, lack of supervision, domestic violence and physical abuse. Child 2, who was eight at the time of the review, had extensive physical and developmental needs and lived in residential care. Child 1, then 13, lived in foster care and was described as settled.

The mother’s counsel argued that she had meaningfully participated in the review, given evidence and submitted to cross-examination. The HSE opposed the costs application, arguing that the circumstances behind the care orders and the mother’s overall participation in the children’s lives should be considered. The court rejected that submission as a factor in deciding this application.

The judge said the mother was entitled to participate with legal representation and that her English was not her first language, which could make legal proceedings overwhelming. The court also said it could not take her eligibility for legal aid into account, relying on a High Court decision in HSE v O.A. The judgment noted that costs were discretionary under the District Court Rules and that the usual “costs follow the event” approach did not readily fit a care order review, which was an inquiry into welfare issues rather than a dispute with a conventional winner.

The court found the legal issues in the review were not complex enough to justify counsel’s fees for that review, despite the children’s circumstances being described as extraordinary and complex. It certified counsel’s costs only for preparing legal submissions on the costs application. Costs in either context were to be taxed if the parties could not agree. The decision did not award counsel fees for the care review itself.

Read the original court judgment

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