Child and Family Agency (formerly Health Service Executive) v OA

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 23 June 2015
• Neutral Citation: [2015] IESC 52
• Court: Supreme Court
• Docket Number: [Appeal No. 422/14],[S.C. No. 422 of 2014]
• Date: 23 June 2015

[2015] IESC 52

THE SUPREME COURT

Murray J.

O'Donnell J.

McKechnie J.

MacMenamin J.

Laffoy J.

[Appeal No. 422/14]

In the Matter of Section 16 of the Courts of Justice Act, 1947 (No. 20 of 1947); Sections 13, 17 and 19 of the Childcare Act, 1991

Between

Child & Family Agency (Formerly Health Service Executive)

Appellant

and

O.A.

Respondent

Child care proceedings – Constitutional rights – Costs – Circuit Court seeking to state a case to the Supreme Court on a question of law – Whether it was proper to commence the proceedings

Facts: The Circuit Court stated a case to the Supreme Court pursuant to s.16 of the Courts of Justice Act, 1947, on a question of law. The question of the District Court Judge"s approach to the costs award in this case, namely in what circumstances may a District Court judge award costs against the appellant, the Child and Family Agency (CFA), to a parent"s privately retained lawyer, consequent on hearing child care proceedings, had come, either by way of case stated, or by appeal, before courts at every level in the State, with the exception of the new Court of Appeal. When the District Judge intimated an intention to award costs, the HSE (the appellant"s statutory predecessor) applied for a case stated to the High Court, as to whether the judge held any jurisdiction to award costs in cases of this type. The High Court determined against the HSE. The decision then came on appeal to the Supreme Court, whereupon the then appellant, the HSE, withdrew the appeal. The application was meantime heard by the District Judge who awarded costs, which order was itself appealed. The Circuit Court Judge on the appeal, this time on the application of the respondent, agreed to state yet a further case. This was the present case stated to the Supreme Court pursuant to the 1947 Act, now focused on the manner in which the District judge exercised his discretion in awarding costs against the Agency. The question which arose was not confined to the one child law matter, and the issue came before the Supreme Court as effectively a test case to determine the outcome in this range of similar applications. Issues of principle arose.

Held by MacMenamin J that it is long established that costs are a discretionary matter; however a judge is not at large in considering a costs application, may not apply a policy on costs awards, and must exercise his or her discretion in each case within jurisdictional criteria established in law. MacMenamin J held that he was not persuaded that it is a function of a District Court to engage in a type of determination which would be tantamount to a resource allocation decision, inductively applied, by a process of analysis conducted through the narrow lens of a single costs application and award. He took the view that the approach to be adopted by the District Court, in dealing with statutory child care proceedings, should normally be predicated on whether, in the first instance, it was proper to commence the proceedings; while 'the event' is normally a starting point, there are cases in which it might be proper to order the costs of unsuccessful parents to be paid by the CFA, if, for example, proceedings were continued in circumstances where they were futile, or where the costs might place an inordinate burden on the parents. MacMenamin J held that the interests of the child, and the interests of justice, should be ensured in accordance with the following general principles in District Court proceedings. He thought the starting point should be that there should be no order for costs in favour of parent respondents in District Court care proceedings unless there are distinct features to the case which might include: (i) A conclusion that the CFA had acted capriciously, arbitrarily or unreasonably in commencing or maintaining the proceedings; (ii) Where the outcome of the case was particularly clear and compelling; (iii) Where a particular injustice would be visited on the parents, or another party, if they were left to bear the costs, having regard to the length and complexity of the proceedings; (iv) In any case in which a District Court seeks to depart from the general default position, and to award costs, it is necessary to give reasons. MacMenamin J held that the effect of these general guidelines would be to accord greater leeway for the exercise of the District Court"s discretion, but within jurisdiction. He reformulated the question posed by the Circuit Court judge, so as to read: In what circumstances is it appropriate for the Circuit Court, on appeal, in a child care proceedings, to interfere with, or reverse, the order of a District Court judge granting costs to the parents against the Child & Family Agency? He then answered the question: If there is a departure from the principles and criteria identified in this judgment.

MacMenamin J held that he would remit the matter to the Circuit Court to allow it to hear submissions on the application of the above criteria to the case.

Case Stated: reformulate questions posed by Circuit Court; remit to Court to decide who should pay costs.

Judgment of Mr. Justice John MacMenamin dated the 23rd day of June, 2015

Introduction

1 In what circumstances may a District Court judge award costs against the Child and Family Agency (CFA) to a parent's privately retained lawyer, consequent on hearing child care proceedings? It is long established that costs are a discretionary matter. However, as this judgment seeks to explain, a judge is not at large in considering a costs application, may not apply a policy on costs awards, and must exercise his or her discretion in each case within jurisdictional criteria established in law.

The Procedural Background

2 This is a case stated pursuant to s.16 of the Courts of Justice Act, 1947, which provides that a Circuit Court judge may state a case to the Supreme Court on ' any question of law' on a matter arising in the Circuit Court. While it might appear both counter-intuitive and unusual that a question of discretion should be characterised as an issue of law, this is not always so, especially if the manner in which the discretion was exercised crossed the boundaries of jurisdiction. As this judgment explains, this is not the only extraordinary feature of this case. The question of the District Court Judge's approach to the costs award in this case has now come, either by way of case stated, or by appeal, before courts at every level in the State, with the exception of the new Court of Appeal. As described later, when the District Judge intimated an intention to award costs, the HSE (the appellant's statutory predecessor) applied for a case stated to the High Court, as to whether the judge held any jurisdiction to award costs in cases of this type. The High Court determined against the HSE. The decision then came on appeal to this Court, whereupon the then appellant, the HSE, withdrew the appeal. The application was meantime heard by the District Judge who awarded costs, which order was itself appealed. The Circuit Court Judge on the appeal, this time on the application of the respondent herein, agreed to state yet a further case. This is the present case stated to this Court pursuant to the 1947 Act, now focused on the manner in which the District judge exercised his discretion in awarding costs against the Agency. In considering the history of this case, one is left with the impression that the appellant has explored a variety of procedural avenues seeking to obtain a legal determination satisfactory to it. As the question ultimately goes to jurisdiction, it is perhaps surprising that the appellant did not go by way of judicial review. In truth, whatever about the hitherto unsatisfactory procedural means, the end—object here is significant. Sixty similar determinations are either pending or have been made. The question which arises is not confined to this one child law matter, and the issue comes before this court as effectively a test case to determine the outcome in this range of similar applications. Issues of principle arise. Any fixed judicial policy on costs awards in child cases would have broad consequences to children, to the other parties involved, and, ultimately, to the public.

Constitutional Rights

3 Prior to considering the legal question, it is necessary to emphasise that in child care cases a number of constitutional rights are at stake. Among these are, first, a child's right to have decisions made with his or her welfare as a paramount consideration; second, the rights both of parents, (designated in the Constitution as the natural custodians of children), and of children themselves, to be properly represented in proceedings where the outcome can be truly life-changing for all involved. A further value, which forms an important part of the background, concerns the right of parents or guardians, in such proceedings, to choose their own lawyer, should they so wish. The practical protection of these rights necessitates access to an appropriate level of legal representation. But, as a corollary of these rights, there are constitutional and legal duties, including the State's statutory duty to protect and vindicate the welfare of children where questions arise in relation to their welfare and care. For these and other reasons, explained later, there must be some definitive guidance on the point, and it is necessary therefore to reformulate the questions raised by the Circuit Court judge so as to allow for a broader analysis and conclusion than one confined to this one single case. The following questions were originally formulated by His Honour Judge Martin Nolan sitting in the Dublin Circuit Court:

' 1. Is it a permissible or proper exercise of my discretion as a judge of the Circuit Court, on appeal from the...