The High Court ordered the Child and Family Agency (CFA) to pay the costs of a guardian ad litem who defended a District Court order in judicial review proceedings. The costs ruling was made by Ms Justice Baker on 30 November 2016, after the court had refused the judicial review application on 14 October 2016.
The application concerned a District Court order made by Judge Constantine G. O’Leary on 13 May 2015. It allowed the guardian ad litem to instruct a solicitor, or a solicitor and counsel, who could act as an advocate for the child with the District Court’s permission. The applicant, identified in the judgment as AO’D, was the child’s mother. She had legal aid. No party sought costs against her.
The guardian had opposed the judicial review, filing grounds of opposition, affidavits and legal submissions. The CFA had supported the guardian’s appointment and the District Court order, but took the opposite position in the High Court. The Agency said its submissions were intended to help the court interpret the statutory scheme and clarify issues that could affect future cases. It did not take a position on factual matters and did not file a notice of opposition.
The guardian sought her costs from the CFA. She argued, among other things, that the case concerned the interests of a child and raised questions of general legal importance. Justice Baker rejected the proposition that a child’s interests alone justified a costs award. She said the law did not establish an automatic entitlement to costs in cases involving children or vulnerable people.
The judge found, however, that the judicial review raised substantial and general legal questions about the guardian’s role, including whether the guardian could be treated as a party and could have legal representation. The guardian had argued points that no other party would otherwise have advanced. Without her participation, the application would have been effectively unopposed and the legal questions would not have been fully argued and determined.
Justice Baker also considered it unjust for the guardian, acting professionally under an order the CFA had supported in the District Court, to bear the expense of defending that role when the child could not pay her costs. The court stressed that guardians are not always entitled to recover costs from the CFA in judicial review cases. Given the unusual circumstances, it ordered the CFA to pay the guardian’s costs.