About this case:

• Citation:
  [2026] IEHC 33
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice John Jordan

Delivering judgment for the High Court, Mr Justice John Jordan determined that in the special care proceedings before the court, “the mother has a right to seek an order for costs — and to have her application for costs adjudicated upon similarly to any other litigant and as if she were not in receipt of legal aid”.

Background

On 25 October 2023, the Child and Family Agency (CFA) obtained a special care order in respect of B pursuant to s.23 of the Child Care Act 1991 (as amended), committing B to the care of the CFA with a direction that the child be detained at Ballydowd Special Care Unit.

The order was subsequently extended where the court was satisfied that it was in B’s best interests that he remain in special care.

At the conclusion of the proceedings, the second respondent (B’s father) and the third respondent (the guardian ad litem) were awarded their costs.

The first respondent (B’s mother) had participated in the proceedings with the benefit of legal aid. Her counsel applied for costs on her behalf, taking issue with the court’s practice of declining awards of costs to respondents who were in receipt of legal aid.

The court adjourned the issue of costs for determination at a later date and afforded the CFA’s and the mother’s legal teams an opportunity to provide written submissions.

The case was joined by a number of subsequent cases where the same issue arose, with all parties agreeing that the case involving B should be heard first.

The High Court

At the outset, Mr Justice Jordan observed that the CFA is legally obliged to apply for costs and in accordance with s.33(1) – (3) of the Civil Legal Aid Act 1995, the court should assess the application as it would any other application for costs.

The court had regard to inter alia the judgment of Mr Justice John MacMenamin in Child and Family Agency v OA [2015] 2 IR 718, in which the Supreme Court noted that High Court childcare proceedings where the court is exercising its inherent jurisdiction frequently address situations in which there is no direct precedent and where it is often acknowledged by the CFA that due to the nature and complexity of the case, it would be unduly burdensome for parents or other parties to bear their own costs.

Finding that Mr Justice MacMenamin’s view was pertinent to cases falling under the statutory special care scheme, Mr Justice Jordan observed that B’s mother was entitled to expert legal advice and representation for her participation in the complex special care proceedings in the High Court and that the court “must adjudicate on her application for costs in the same way as it would do in respect of a parent applying for costs who did not have the benefit of legal aid”.

Mr Justice Jordan also had regard to the submission on behalf of B’s mother that particularly in special care proceedings where a child’s liberty is at stake, the child’s constitutional rights are engaged and must be protected.

The judge explained that “B was entitled to have his mother’s views heard on all issues that touched and concerned his constitutionally protected rights, welfare and best interests. Furthermore, the First Respondent was entitled to exercise her parental rights, as she did, to have the court appraised of her views concerning her child’s welfare. The First Respondent’s engagement in the proceedings has been and continues to be a vindication of her constitutionally protected rights as B’s parent.”

The court noted the CFA’s submission concerning an intention on part of the Oireachtas to provide differently for the costs incurred by the child or the guardian ad litem, acknowledging that while the legislation “does just that”, it does not mean that those are the only parties who should be entitled to their costs.

Noting that the CFA’s submission that B’s mother was not made a party to the proceedings in circumstances where she was given notice pursuant to s.23(G) of the 1991 Act was incorrect, the court opined: “The truth of the matter is that the mother was expected to and did participate in the proceedings from the outset — as a party to the proceedings.”

The court continued: “Furthermore, any suggestion by the Child and Family Agency that the mother was simply ‘a notice party’ is at odds with the Child and Family Agency’s approach to her position when issuing the proceedings. From the outset the mother has been named as the first named respondent in these proceedings and she engaged fully as such in the proceedings.”

Mr Justice Jordan considered that while the Legal Services Regulation Act 2015 preserves the general principle that costs follow the event, special care proceedings are not marked by an event or events in the same way that most civil litigation is.

Finding that the absence of a clear “event” or a “successful party” does not preclude the court from making an order for costs in favour of one party against another, the court was further satisfied that notwithstanding the generally collaborative approach of special care proceedings, costs awards in such proceedings remain as in other proceedings and parties are entitled to apply for their costs.

Noting that on occasion, parents joined as respondents fail to participate fully in special care proceedings, the court acknowledged that “In this instance the mother participated appropriately and responsibly and helpfully throughout the proceedings. Her conduct before and during the proceedings was properly concerned with the important issue of the welfare of her son. Her approach throughout was considered and reasonable. Her participation was of assistance to the court and benefited her son.”

Conclusion

Accordingly, the High Court awarded B’s mother her costs (including any reserved costs) to be adjudicated in default of agreement.

Child and Family Agency v D & Ors [2026] IEHC 33