The High Court made no order as to costs after a judicial review concerning the care of two children became moot following decisions in the District Court. Mr Justice Garrett Simons said the District Court outcome was not an “event” in the High Court case because the judicial review had not caused or advanced that outcome.
The judgment, delivered on 17 April 2023, dealt only with the allocation of costs. The underlying dispute concerned the children’s care and custody. The applicant, their father, had sought judicial review of the Child and Family Agency’s actions. The children’s mother was a notice party.
The proceedings began on 7 July 2021, after the District Court refused an emergency care order sought by the Agency on 2 July. The children, who had been in voluntary foster care, did not return to their father and remained with the Agency. The father sought their return through judicial review and also raised a complaint that the Agency had failed to find that their mother had engaged in “parental alienation”. The judge noted that this part of the application appeared to be out of time.
The father did not pursue the judicial review at that stage, and it was adjourned generally on 27 July 2021 pending further District Court proceedings. The Agency later obtained an interim care order in August 2021. The parties accepted that this order made moot the dispute over the legal basis for the children remaining in the Agency’s care in the days after the emergency order was refused.
The District Court appointed an expert under section 27 of the Child Care Act 1991. The expert’s report, prepared in December 2021, found that there had been parental alienation by the mother. The interim care orders were extended until 14 February 2022, when a settlement in the family law proceedings returned the children to their parents’ care under arrangements recommended by the expert.
The father argued that the District Court’s finding vindicated his position and should count as an event relevant to costs. The Agency argued that the judicial review was misconceived and became moot because of the District Court orders, not any unilateral action by the Agency. It also submitted that the District Court was the proper forum for deciding the children’s care and custody.
Justice Simons concluded that the District Court outcome did not show that bringing the High Court proceedings had been reasonable or had produced a practical benefit. He said the District Court outcome would have been the same regardless of the judicial review, which had no causal connection to it. The court did not determine the merits of the underlying judicial review dispute. The Agency had not sought costs in its favour, and the court made no order in relation to costs.