The High Court has ordered a former foster mother and the Child and Family Agency (CFA) to bear their own costs after dismissing her judicial review application. The court also ordered the CFA to pay the costs of the birth mother and guardian ad litem, to be taxed if not agreed.
The costs judgment, delivered by Mr Justice Garrett Simons on 18 January 2019, followed a six-day hearing in December 2018. The judicial review challenged how a child was moved from the foster mother’s care to that of prospective adoptive parents in April 2018. The court had dismissed the application in its entirety in a judgment delivered on 21 December 2018.
The foster mother sought an order requiring the CFA to pay at least some of her costs. Her counsel submitted that she had acted to protect the child’s rights, that the case raised issues of public importance, and that the court’s decision not to make findings about events in March and April 2018 was novel. The CFA opposed her application and sought its own costs, arguing that the ordinary rule—costs follow the outcome—should apply.
Justice Simons ruled that the judicial review was brought outside the three-month time limit and refused an extension. He said the delay was unacceptable, particularly given the foster mother had legal advice at the relevant times. That threshold ruling was sufficient to dispose of the case. The court had also considered other issues on a provisional basis in the principal judgment, to assist if there were an appeal.
The judge rejected the foster mother’s claim for costs. He found the case did not raise a novel point of law of sufficient importance to justify an award in her favour. He also noted that she continued to pursue the proceedings to a full hearing after dropping reliefs that could affect the child’s placement, and after agreeing not to delay or interfere with the adoption process.
However, the court declined to order her to pay the CFA’s costs. Justice Simons said the proceedings were motivated by genuine concern for the child’s welfare, and that imposing the costs of a six-day High Court case could deter foster parents from seeking to vindicate children’s rights. He also considered the foster mother’s care of the child over 13 months and found a costs order against her would be disproportionate.
The court therefore made no order as to costs between the foster mother and the CFA. Its ruling concerned costs only; the underlying judicial review had already been dismissed.