The Supreme Court has set out principles for deciding when parents may recover private legal costs from the Child and Family Agency in child care proceedings. It remitted a costs appeal to the Circuit Court to hear submissions on how those principles apply in this case; it did not decide whether the mother should receive costs.
The case arose from proceedings involving a mother identified as O.A. and her four children. In 2011, the Health Service Executive, then responsible for child care functions, obtained an emergency care order after a third party reported that the eldest child had been physically abused. The mother denied misconduct. The source says the child later withdrew her complaints and returned home.
The HSE later sought supervision orders. A two-week order was made in November 2011, and a further order was made in December and remained in force until March 2012. In April 2012, the HSE sought another supervision order, alleging that the mother’s three younger children were being left without proper adult supervision. The mother contested the application. After hearing evidence over several days, the District Court granted a one-year supervision order. That order was not appealed on its merits.
The mother’s privately retained solicitor then sought costs. The District Court awarded them, but the Supreme Court said the ruling appeared to set a general policy for awarding costs and did not identify an exceptional feature of this case or explain the basis for the award. The Court also noted that the mother had not been successful in the supervision-order applications.
The Supreme Court said there should normally be no costs award in favour of parent respondents in District Court care proceedings unless distinct features justify one. Those features may include the Agency acting capriciously, arbitrarily or unreasonably; a particularly clear and compelling outcome; or a particular injustice if a parent must bear the costs, considering the proceedings’ length and complexity. A judge departing from the usual position must give reasons identifying a clear, exceptional feature.
The Court reformulated the legal question as when the Circuit Court should interfere with a District Court costs order and answered: where the District Court departed from the principles and criteria in the judgment. It remitted the case to the Circuit Court for submissions applying those criteria. The question of whether the legal aid scheme should be more comprehensive was reserved for another case.