AO'D v O'Leary

JurisdictionIreland
JudgeMs. Justice Baker
Judgment Date30 November 2016
Neutral Citation[2016] IEHC 757
Docket Number[2015 No. 420 JR]
CourtHigh Court
Date30 November 2016

[2016] IEHC 757

THE HIGH COURT

JUDICIAL REVIEW

Baker J.

[2015 No. 420 JR]

BETWEEN
AO'D
APPLICANT
AND
JUDGE CONSTANTINE G. O'LEARY
RESPONDENT
AND
COLUM CAWLEY
THE CHILD AND FAMILY AGENCY
VAL KERR (GUARDIAN AD LITEM)
NOTICE PARTIES

Family – Award of costs – Issue of public importance – Costs of guardian ad litem – The Child Care Act, 1991

Facts: The third named notice party sought an order for costs in the present substantive proceedings against the Child and Family Agency (CFA). The said party asserted that since she was a professional expert, the complexity of the case required her to raise issues of public importance.

Ms. Justice Baker awarded the costs to the third named notice party being the guardian ad litem against the CFA. The Court found that the issues raised by the said notice party were related to statutory interpretations and were of public importance and hence, she should be awarded her costs. The Court, however, cautioned that it would not lean in favour of awarding costs in every such case where the issue of child rights were raised in relation to the child already under the care of the State.

JUDGMENT of Ms. Justice Baker delivered on the 30th day of November, 2016.
1

This judgement deals with the application for costs by a notice party against another notice party.

2

The third notice party is the guardian ad litem appointed to represent the interests of a child in care proceedings under the Child Care Act, 1991 as amended ('the Act of 1991') in the District Court and who was one of three notice parties in the judicial review in which I gave judgment on 14th October, 2016 [2016] IEHC 555.

3

The applicant is the mother of the child and she had the benefit of legal aid under the Civil Legal Aid scheme. No application is made for her costs.

4

The respondent took no part in the case, but the guardian ad litem has fully engaged with the proceedings, served a notice of grounds of opposition dated 16th November, 2015, two supporting affidavits and substantial legal submissions.

5

The application for judicial review concerned the correctness of an order made by Judge O'Leary in the District Court on 13th May, 2015, by which he ruled that the guardian ad litem be entitled to instruct a solicitor or solicitor and counsel who might, with leave of the District Court, act as advocate for the child in the same way as an advocate of any party in the proceedings under the Act of 1991.

6

The CFA supported the application in the District Court by which the guardian ad litem was appointed, and the impugned order of 13th May, 2015 by which Judge O'Leary identified the role and functions of the guardian so appointed. It took the opposite approach in the application for judicial review, and argued that the guardian ought not to be permitted to engage in the manner envisaged by the District Judge having regard to the statutory scheme under which she was appointed.

7

The CFA at an early stage identified that it did not propose to adopt an active role in the proceedings, and did not adopt any position on any factual matter. The written and oral legal submissions were tendered 'to provide assistance' to me in my deliberations 'by identifying and addressing certain aspects of the order' that may have implications for the conduct of other proceedings involving a guardian ad litem. The submissions, which were very helpful, addressed the relevant legal authorities and principles, and were made with a view to arguing that the statutory scheme did not permit the order as framed.

8

The application for judicial review was refused, and no application for costs is made by any party against the applicant. As a practical matter the guardian argues that the ongoing nature of the role she engages in respect of the child, and the need for close contact with the mother of the child, is inconsistent with the making of an order that would put her in a position of conflict with the mother. Of itself that would not be a ground that would suggest that a court ought not to make an order for costs against a parent in those circumstances, but it is a factor that must weigh to some extent in my discretion.

9

The guardian ad litem has applied for her costs against the CFA on a number of grounds relating to the nature of the child care proceedings, and because important interests of a child were sought to be protected in the course of the litigation.

10

To some extent the application by a notice party for costs against another notice party does not readily fit within the general characterisation of a costs application, and therefore it is difficult to determine the matter by the application of O. 99 of the Rules of the Superior Courts, or s. 14(2) of the...

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2 cases
  • HSE -v- BS
    • Ireland
    • District Court (Ireland)
    • 25 October 2017
    ...DK and also the recent decision of Ms. Justice Baker in the case of Child and Family Agency –v- the Presiding District Court Judge & Ors [2016] IEHC 757. In the circumstances, given that all parties now acknowledge that the grounds for the detention of the mother are no longer present the r......
  • Dowling v Bord Altranais agus Cnaimhseachais na hÉireann
    • Ireland
    • High Court
    • 6 September 2017
    ...basis that the Office of the Director of Corporate Enforcement was exercising its statutory functions. He also relied on O'D. v. O'Leary [2016] IEHC 757 in this regard. Counsel also relied, in the alternative, for an apportionment of costs on the Veolia principle, on the basis, he said, th......

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