The High Court ruled that the Legal Aid Board, rather than the Child and Family Agency (CFA), should bear the legal costs of C, the mother of a young person identified as A, in a child welfare case involving A’s HIV status.
In an ex tempore judgment delivered on 19 February 2018, Mr Justice Twomey said the CFA had conceded that it should pay A’s legal costs. The agency had referred A to a solicitor when it became apparent that he did not want to disclose his HIV status to B, saying they were not having sex.
The dispute before the court concerned C’s costs. Because she had legal aid, the question was whether the CFA should pay them or whether there should be no costs order between C and the agency, leaving the Legal Aid Board to meet the bill. The judge said C herself would neither gain nor suffer prejudice from the decision about which State agency paid.
The court applied principles from the Supreme Court’s 2015 decision in *The Child and Family Agency v O.A.* It referred to the statutory requirement that legally aided litigants be treated for costs purposes in the same way as other litigants. The judgment said the general starting point in care proceedings was that parent respondents should not receive a costs order unless distinct features justified an exception.
Justice Twomey found no such feature. He said the CFA had not acted capriciously, arbitrarily or unreasonably in bringing or maintaining the proceedings, as it had acted from a genuine desire to protect B from harm based on expert medical opinion. The legal outcome was not clear and compelling: the judgment noted there was no Irish precedent and little, if any, precedent abroad on the legal issues. The judge also found no injustice to C or the Legal Aid Board if the Board, rather than the CFA, paid the costs.
The judgment noted that both agencies’ funds ultimately came from taxpayers. It said the default rule could encourage the Legal Aid Board to consider carefully whether further legal costs were justified where a represented child was close to adulthood and the mother’s primary role at trial had been as a factual witness. The source’s final paragraph ends mid-sentence; it does not provide a separately formatted order beyond the court’s conclusion on C’s costs.