The High Court ruled that a parent’s possible eligibility for civil legal aid does not prevent her from seeking costs in child-care proceedings, and that the District Court has jurisdiction to award costs in such cases.
Ms Justice Iseult O’Malley gave the ruling on 12 April 2013 in a consultative case stated from District Judge Toale. The case asked whether, when considering costs, the District Court could or must take account of a mother’s possible eligibility for legal aid. The High Court answered both questions in the negative.
The case arose after the HSE obtained an emergency care order in April 2011, followed by interim care orders that were extended on several dates. The mother was legally represented from 5 May 2011. In November and December 2011, the District Court granted supervision orders, the later of which expired on 5 March 2012. Her legal advisers then sought costs from the HSE.
The HSE argued that the District Court had no power to award costs in Child Care Act proceedings. Alternatively, it said a judge could consider whether the mother could have obtained legal aid. The Attorney General, joined as a notice party to address constitutional issues, also argued that legal aid availability was relevant to the reasonableness of representation.
Justice O’Malley rejected the HSE’s jurisdiction argument. She held that the District Court’s statutory framework and District Court Rules gave it jurisdiction to award costs in child-care proceedings. She found no statutory basis for a general policy that costs should not be awarded against the HSE in those cases.
The judge said costs remained a matter for the District Court’s discretion, based on the circumstances of the case. The case stated did not establish that the mother was entitled to an order for costs: Justice O’Malley said she knew nothing about the merits of her claim or how the usual factors would apply.
On legal aid, the judge concluded that the mother was entitled to choose her own representative and was not obliged to apply for legal aid. Her actual or presumed eligibility had no bearing on her entitlement to apply for costs. The ruling addressed that question of law; it did not itself make a costs order in the underlying District Court proceedings.