The High Court has refused a mother’s application to overturn a District Court decision denying her costs in childcare proceedings involving the Child and Family Agency (CFA).
Ms Justice O’Regan delivered judgment on 17 January 2017 in a judicial review application. The mother had asked the High Court to quash the District Court’s order of 28 September 2015, which refused her costs arising from earlier proceedings that ended in an order on 25 May 2015. She also sought other declarations, but the arguments for those remedies were not developed.
The underlying proceedings concerned access to one of the mother’s two infant children. The CFA had sought directions about whether suspending access would be in the child’s best interests. After directions were implemented, access improved and the Agency said it would not pursue suspension. It later sought to reduce access from one and a half hours each week to one hour every three or four weeks. The mother opposed a reduction and sought reunification of her family.
The mother argued that the Agency had acted capriciously, arbitrarily or unreasonably in starting or continuing the proceedings, and that refusing costs would cause injustice given her reliance on social welfare and her debts. The CFA supported the District Court’s decision, arguing that costs should generally not be awarded in these proceedings and that it had not acted improperly.
The High Court considered Supreme Court guidance in Child and Family Agency v O.A. on when costs may be awarded against the CFA in childcare proceedings. The guidance sets a general position against awarding costs to parent respondents, while allowing for distinct features such as unreasonable conduct by the Agency, a particularly clear outcome, or particular injustice arising from the proceedings’ length and complexity. The High Court held that reasons identifying an exceptional feature are required whenever a court awards costs.
The District Court had found no capricious or arbitrary conduct by the Agency, no clear and compelling outcome, and no exceptional feature justifying a costs award. The High Court said the proceedings were not considered lengthy and that the issues were not unusual or unprecedented. It also said “particular injustice” concerned the length and complexity of proceedings, rather than an assessment of the parent’s resources and costs incurred.
Although Ms Justice O’Regan disagreed with the District Court judge’s interpretation of the Supreme Court guidance, she concluded that the circumstances did not entitle the mother to costs. She refused to quash the District Court decision and refused the other reliefs sought. The judgment therefore left the 28 September 2015 costs decision in place.