Health Service Executive -v- IV & anor (Costs)

• Judge: Gibbons J.
• Judgment Date: 13 February 2009
• Neutral Citation: [2009] IEDC 1
• Case Outcome: Approved
• Date: 13 February 2009
• Court: District Court (Ireland)

[2009] IEDC 1

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

IV & AV

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 17(2)

IN THE MATTER OF CHILD 1

13 February 2009

1. I have to decide on t he questions of c osts in a matter entitled HSE and V which c ame before the District Court assigned to deal

with applications and matters under t he Child Care Acts in t he District Court c oncerning a Child 1.

2. I do not propose t o go into the detail with respec t to the matte r, as both parties have clearly set out t he background and issue

involved in the case . Both parties assist ed the Court great ly with their very c lear expositions of the law as they saw it wit h regard to

what t his Court has had to de cide. For what it is wort h, I might mention that t he standard of representation on the part of bot h

parties was ve ry high and both parties were very w ell served by their legal teams. The c onstructive engagement by the part ies with

each ot her within the framework of this process was something that be nefited Child 1 greatly and I include the GAL in this also.

3. These are difficult areas in that we are dealing with matt ers that have lifelong consequences ; it is bec ause of t he very high

standards and legal knowledge that legal representat ives brought to this hearing, together with a sense of optimism and commitment

on the part of their clients, that progress wa s made for the benefit of Child 1. Whilst there were major differences of approac h by the

parties at t he outset, a c onvergence did occur t o the benefit of Child 1. He is, and was, w ell served by his social work team, his

teac hers, and his mother who, in the most difficult of circumstances , grasped the ess ential reality underlying this issue and resolved

to deal with it.

4. This particular c ourt deals with what are desc ribed as public law family ca ses as opposed to private law f amily case s which are

heard in other District Courts. Childcare applicat ions under the Childcare Act deal with interventions in family life that have a specific

public interest, namely that c hildren must be prote cte d from harm, neglect, and abuse.

5. The HSE st ate t hat the case Souther n Hotel Ltd v Iarnród Éireann [2007] IEHC 254 has established that where there is no

statut ory provision in an Act f or the award of a respondent’s cos ts, t he District Court may not aw ard costs . They quot e a number of

cases, such as Dillane v AG [1980] ILRM 167 and State (AG) v Shaw [1979] 1 IR 136, to support t heir proposition that t here is no

inherent jurisdiction t o award cos ts in the District Court. In other words, irrespect ive as t o what the District Court rules say, where

there is no jurisdiction to do s o, the District Court may not award c osts. T hey st ate t hat the District Court is a c ourt of limited and

local jurisdiction created by stat ute. In the Iarnród Éireann case , Hedigan J differentiated bet ween different t ypes of criminal and

civil, public law and private law c ases and examined the various conc epts involved.

6. The HSE are obliged by law t o pursue applications to Court in pursuance of their obligations under the Child Care Act. They a re the

primary Child Protection Authority in t his state. They must do so in circumstances where t hey believe t hat the interests of children

require protection as set out in the legislation. When the HSE make bona fide applications to Court, I cannot see that there ought t o

be any inhibition on them is so doing. If it were the c ase that t hey would be exposed to orders for cost s if they failed in their

applications, then t his would place an enormous burden upon them in exercising this most essential aspec t of public policy, namely the

protect ion of children: their best interest s and welfare. These intervent ions are statut orily based and must be constit utionally

compliant, but an essent ial ingredient thereof is that t hey are exercised in t he public interest by a stat utory authority.

7. In this cas e, there was a real and substant ial basis for the HSE to pursue t heir applicat ion. As the c ase proceeded, c ircumstanc es

changed and a s ituation developed whereby t he HSE came to the view that the Child 1 ought to be returned to t he care of his

mother. The Psyc hologist, in his evidence and report, se t out his views on the matte rs conce rning the relationship between Child 1

and his parents. The case had not reached the point whereby t his evidence w as challenged or cross examined. It is my view that the

HSE behaved properly in changing their plan for Child 1 in this way. Not only were they c orrect , it is the law that they must do so.

The issue of reuniting children with t heir parents is always present and it never disappears from the Court’s view except in the most

extreme situations. Our legislative and constitut ional framework is fundamentally different in t his regard from that of near neighbours

although similar in other ways.

8. The respondent has prepared a very c omprehensive submission in this matter of c osts and sets out very c learly how she views t he

position, quoting sect ion 78 Courts of Just ice Ac t 1924, sec tion 59 Dublin Police Ac t 1842, and sec tion 91 of the Courts of Just ice Ac t

1924 together with Rule 37 of the District Court Rules made pursuance t o section 91 of t he Courts of Just ice Ac t 1924. The

respondent quoted and has handed in the cas e of T he State (at the prosecut ion of James Hempenst all) v Judge Shannon KC and

District Just ice Reddin [1936] 1 IR 334. Sec tion 91 relates to the requirement of a District Judge t o hear and determine any charge or

complaint and shall have the power t o order any party (ot her than the AG or the Garda Síochána) to pay t he other party cost s as

shall seem meet. Sec tion 33 of the Courts (Supplemental Provision) Act 1961 is quoted t o set out the t ransfer to the District Court a ll

jurisdict ions by virtue of sec tions 77 and 78 of the 1924 Act . In other words, c ounsel comprehensively set out t he basis of the

jurisdict ion of the District Court and how this has dev eloped over time by stat ute. T he District Court Rules are quoted including the

Costs Rules of 1996 and Order 51, which says t hat save as ot herwise provided by statut e or by rules of c ourt the granting or

withholding of the c osts of any party t o civil proceedings in the Court shall be at the discretion of t he Court. The respondent stat es

that t he proceedings are civil, in that t he application before t he Court is different t hat that considered by Hedigan J in Southern Hotel

and further stat es that the prac tice a nd custom of t he District Court has bee n to award c osts.

9. In my short résumé here, I am not doing justice t o the intellectual vigour and application of t he submissions put by e ither party

herein. I am merely reciting aspects thereof t o assist in my decision-making endeavours. The Child Care Act, 1991 is silent on the

question of c osts except in sec tions 25 and 26 which deal with particular representation on behalf of the c hild by a solicitor or GAL. It

is my view also that w hen you look at the overall thrust of t his Act, the legislature was ve ry consc ious of the f inancial aspects