The High Court made no order for costs after Ms W successfully appealed in family law proceedings involving the removal of children from Ireland. The decision concerned who would pay the costs of that appeal; it did not revisit the appeal’s outcome.
In a judgment delivered on 11 December 2020, Mr Justice Max Barrett said the usual approach in family cases is that costs may be ordered where the case, the parties or their conduct merit it, but otherwise no costs order is typically made.
The judge said Mr R had obtained an order in another EU member state after he considered Ms W to have breached an agreement about where the children would live and be raised. He then came to Ireland and, with legal advisers, obtained an order from the Master of the High Court. The judge said that Irish order was legally deficient and ought not to have been granted, for reasons set out in the principal judgment.
The court said the problems from an Irish-law perspective stemmed from that order. Mr R had acted in good faith and believed he was complying with a lawful Irish order that appeared to permit his actions. The judge said this was not a case in which a father knowingly breached a court order or removed a child without regard for the law. In the circumstances, Mr R’s conduct did not merit a costs order against him.
The judgment also included two observations that the judge said did not form part of his reasoning on costs. He noted that Mr R’s solicitors were not before the court and had not been heard, and expressly made no finding of wrongdoing against them. He also described the law on removing a child from the jurisdiction as complex.
Referring to the principal judgment, the judge recalled that Ms W had been living with the two children in Ireland for some years and had lost physical custody without her side being heard by the Irish courts. He described that as a grave wrong, while making no assessment of whether she would have succeeded in resisting the removal had she been heard.
The judge suggested possible systemic steps for consideration: clearer guidance on the applicable rules, a review of the standard template for ex parte enforceability orders, and guidance for legal professionals on the risks around removing a child before proceedings are served on an affected parent. These were suggestions, not orders made in the costs judgment.