The High Court refused the applicants’ request for costs in three unsuccessful judicial reviews concerning child-care proceedings, but ordered the Child and Family Agency (CFA) to pay one quarter of the guardian ad litem’s costs.
In a judgment delivered on 30 November 2016, Ms Justice Baker considered costs after rulings in three cases brought by a mother and two children, whose names are anonymised in the judgment. The children were in State care under the Child Care Act 1991.
The reviews challenged matters arising from the care proceedings. One sought a written record of Circuit Court judgments where a digital audio recording was unavailable; that relief was refused on grounds including delay and futility. Another challenged the guardian ad litem’s entitlement to act as a party in care proceedings. The court had refused the application in part because the challenge was brought years after the appointment. It had also delivered a supplemental ruling on the guardian’s role. The third case concerned the mother’s access to her son; leave to bring judicial review was refused because the High Court could not determine how access should be managed without evidence on that issue.
The applicants sought their costs from the CFA despite obtaining none of the relief sought. Their counsel argued that the litigation was sui generis because it concerned the ongoing relationship between parent and child. Justice Baker accepted that child-care proceedings have distinctive features, but said that did not require judicial reviews arising from them to be treated differently for costs purposes. She also noted that no evidence had been provided to support the claim that the mother could not afford the litigation or had been refused legal aid. The court declined to award the applicants costs.
The guardian ad litem, Miriam Lyne, sought her costs from the CFA. The judge said the CFA and the guardian had overlapping interests, and that the CFA should have engaged with the guardian’s solicitors about a coordinated approach. Their separate legal submissions supported and adopted each other’s positions. The judge also found that the guardian’s legal representatives bore some responsibility for not seeking such engagement.
The court ordered the CFA to pay one quarter of the guardian’s costs across the three applications, to be measured or taxed as one judicial review. The award includes the costs of two replying affidavits and allows fees for both junior and senior counsel. The ruling did not award the applicants costs.