The High Court made no order as to costs after a mother’s constitutional challenge to an interim care order concerning her child became unnecessary under an agreement with the Child and Family Agency. The court did not decide whether the District Court order was lawful or whether the procedure used to make it breached fair procedures.
The challenge followed an interim care order made without notice to the mother on 25 March 2020. Her solicitor, Joan Callan, said the mother had not been notified of the application and argued that she had been denied an opportunity to contest it. The Agency’s social worker filed evidence describing concerns about the child’s care and safety, the mother’s limited support network and the effect of the Covid-19 emergency on the support available. The Agency said there was extensive evidence before the District Court and that an ex parte interim care application was exceptional but justified in the circumstances.
On 27 March, the mother applied to the High Court for an inquiry under Article 40.4 of the Constitution. The judge directed an inquiry to be held. At a hearing on 31 March, the parties agreed that the Agency would make a fresh interim care application on notice and seek discharge of the 25 March order. The mother agreed that the child would remain in the Agency’s voluntary care until the new application was concluded.
On 6 April, the Agency made the fresh application and sought discharge of the earlier order. The parties then entered into a voluntary care agreement under section 4 of the Child Care Act 1991. The Article 40 case was adjourned and later returned to the High Court for a decision on costs.
The mother argued that the agreement achieved the purpose of her challenge by allowing the care issue to proceed with notice and legal representation. She said the Agency’s actions in seeking discharge and making a fresh application were a response to the proceedings and should count as the event from which costs followed.
The Agency argued that the compromise did not amount to an admission that its actions or the District Court order were unlawful. It said the agreement protected both parties and that the mother had not pursued the Article 40 inquiry to a decision on the order’s legality.
The judge noted questions raised about the use of an ex parte interim care application, including the absence on the face of the District Court order of an express direction under section 17(3) permitting it. But he said the compromised challenge meant he had not conducted an inquiry or reached any conclusion on lawfulness, and it was not appropriate to treat the order as anything other than lawful.
He found that the agreement—not a unilateral act by the Agency—was the proximate cause of the challenge becoming unnecessary. While the settlement achieved the objective of the proceedings, the court could not conclude that it had “righted a wrong”. The order was no order as to costs, with liberty for either party to apply if practical or unforeseen difficulties arose.