About this case:

• Citation:
  [2025] IESC 33
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Gerard Hogan

Delivering judgment for the Supreme Court, Mr Justice Gerard Hogan explained that “it must be borne in mind that if there is an order for costs in favour of the GAL, it will mean in effect that the taxpayer will be required to pay duplicative sets of costs for B’s legal representation. While it is necessary to be fair to the GAL and to recognise that this may sometimes occur, this is nevertheless an outcome which this Court should, where at all possible, seek to avoid.”

Background

In December 2023, a special care order was made by the High Court in respect of the applicant, B, a troubled young man with special needs.

When it appeared that the special care order would not be complied with by the Child and Family Agency (CFA) due to an absence of available special care beds, B commenced plenary proceedings seeking a declaration that the CFA was in contempt of court.

In January 2024, Mr Justice John Jordan made an ex parte order joining a guardian ad litem to the proceedings as a notice party. This order was made in the presence of counsel for the CFA.

In February 2024, the CFA sought to have the joinder set aside on the basis that the guardian ad litem had no role or legal interest in the proceedings. 

That application was refused by the High Court, with Mr Justice Jordan holding that the guardian ad litem was vitally interested in the outcome of the proceedings and was a conduit insofar as the voice of the child was concerned. 

The CFA did not seek to appeal or cross-appeal the order joining the guardian ad litem, but appealed a subsequent order for costs made by Mr Justice Jordan in her favour. In that regard, the CFA was granted leave to appeal directly to the Supreme Court.

The Supreme Court

At the outset of his judgment, Mr Justice Hogan was satisfied that notwithstanding that no appeal was brought against the order joining the guardian ad litem, the Supreme Court was not precluded from having regard to all of the circumstances of the case when an issue in respect of costs fell to be adjudicated.

The judge observed that the plenary proceedings brought on behalf of B were not “proceedings under Part IV, IVA or VI” of the Child Care Act 1991 so that the special rule providing for the costs of the guardian ad litem under s.26(2) thereof did not apply.

The court highlighted that s.26(4) of the 1991 Act provides that where a child in respect of whom an order is made under s.26(1) becomes a party to the proceedings, then an order appointing a guardian ad litem ceases to have effect. 

In this regard, Mr Justice Hogan considered that s.26(4) does not contemplate a guardian ad litem playing any further role in proceedings under Part IV, IVA or V of the 1991 Act once a child becomes a party to the proceedings, and that this principle would apply by analogy to the plenary proceedings before the court.

The judge also disagreed with the High Court’s conclusion that the guardian ad litem had an interest in the proceedings, in circumstances where the plenary proceedings were not governed by Order 84 of the Rules of the Superior Courts (RSC) which applies to judicial review proceedings and which contemplates the joinder of notice parties.

Noting that the general jurisdiction of the High Court to direct the joinder of a party as plaintiff or defendant to plenary proceedings under Order 15, r.13 RSC “does not appear to contemplate the joinder of parties simply qua notice parties, even if in practice such parties are sometimes joined to plenary actions”, Mr Justice Hogan determined that it was unnecessary to adjudicate upon whether there is a jurisdiction to join notice parties in plenary proceedings.

Instead, the court applied the provisions of Order 84 to the proceedings before it by analogy, finding that even by the “generous standards” of Order 84, “the joinder of the GAL was neither necessary nor appropriate” where inter alia, B’s interests were already fully represented and where, as per s.26(1), the guardian ad litem’s function is confined to cases where the child’s interests are not otherwise represented.

In this regard, Mr Justice Hogan highlighted that Order 44 RSC, being the ordinary route for contempt applications, does not make express provision for the presence of notice parties.

The judge further observed that the guardian ad litem’s actual role in the plenary proceedings was a limited one, making no independent submissions of her own either in the High Court or before the Supreme Court.

The judge explained that this was not in any sense a criticism of the guardian ad litem or her legal team, but the fact remained that she should not have been joined as a notice party.

As to the implications of the Supreme Court’s reasoning on the costs order made in the guardian ad litem’s favour, Mr Justice Hogan was satisfied that where the High Court joined the guardian ad litem and where there was no appeal by the CFA against that order, she was entitled to proceed on the basis that she had been properly joined and the High Court costs order reflected that “underlying reality”.

Nonetheless, the court considered that public funds are not infinite and that “it is the duty of the court to ensure where possible that they are not unnecessarily spent in an improvident fashion”.

Finding that the High Court costs order in effect obliged the taxpayer to pay duplicative costs for B’s legal representation and noting that this outcome should be avoided where at all possible, the Court accepted that the award of costs was not governed by the special costs rules in the 1991 Act or the standard costs principles in s.168 and s.169 of the Legal Services Regulation Act 2015 where there was no standard “event” as between the CFA and the guardian ad litem.

The Supreme Court was satisfied that the circumstances before it were governed by three considerations — that the court must guard against awarding costs in an “extravagant or improvident manner”, that the role of the guardian ad litem in childcare cases is important and those considerations are reflected in s.26(1) of the 1991 Act, and that the guardian ad litem had in fact been joined as a notice party and that order was not appealed, notwithstanding that “this joinder was wrong in law.”

Having regard to those considerations, the court was satisfied that the guardian ad litem was entitled to retain her legal representatives for the first day of the hearing of the substantive matter but that once it became clear that B’s interests were fully protected, her further participation in the litigation should have been discontinued.

Conclusion

Accordingly, the Supreme Court allowed the appeal and varied the High Court’s order to provide that the guardian ad litem was entitled to one day’s set of costs in respect of the plenary hearing before Mr Justice Jordan.

The court made no further order as to costs. 

B (A Minor) v The Child and Family Agency [2025] IESC 33