The District Court has refused a father’s application for the HSE to pay the costs of his private solicitor in proceedings concerning access to his daughter.
The costs application was heard on 8 February 2011, after the father’s access application had been disposed of following a hearing on 20 July 2010. The costs issue had been left outstanding. The judgment does not state the amount sought.
The child, identified only as Child 1, was born in January 2005 and had been subject to a full care order since 11 May 2006. The judgment records that the father’s solicitors issued his access application in December 2009 and represented him at each of seven court appearances.
The HSE argued that the father should have applied to the Legal Aid Board, whose representation would have been available to him. It submitted that he could not choose a private solicitor and require the HSE to meet that solicitor’s costs. The father confirmed he had not applied for legal aid for this case.
On the father’s behalf, it was submitted that he had considerable personal difficulties, including difficulty engaging with the HSE, the Legal Aid Board and others, and that disability effectively prevented him from engaging with the HSE. His solicitor had a significant relationship with him, built over time, and had previously been appointed under section 25 of the Child Care Act 1991. The father argued that those circumstances supported an order for his costs.
The court accepted that the father had a significant relationship with his solicitor and said parents should have access to legal advice and representation in proceedings concerning their child. But it found that the relationship did not entitle him to recover the costs of instructing that solicitor. The court said Legal Aid Board representation would have been available in a timely manner at little or no cost, and found no compelling reason why the father could not have used it.
The court said a refusal of legal aid, or inadequacy in the representation provided, might have supported a later claim for costs against the HSE. Neither possibility had been tested because the father did not apply. The court therefore declined to award costs against the HSE, leaving the father to bear his representation costs himself. The judgment does not determine any other issue in the access proceedings.