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

• Judge: Toale J.
• Judgment Date: 09 June 2010
• Neutral Citation: [2010] IEDC 2
• Case Outcome: Approved
• Date: 09 June 2010
• Court: District Court (Ireland)

[2010] IEDC 2

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

SK & CP

RESPONDENTS

IN THE MATTER OF CHILD 1

9 June 2010

1. The f irst named respondent applied for costs in respec t of the Emergency Care Order application by the HSE on 18 March 2010, an

Interim Care Order application on 25 March 2010, and an extension of t he Interim Care Order application on 20 April 2010. Brief oral

submissions were made by the first respondent conc erning the nature of the c ase and in particular its urgency, and reference was

made to Marie O’Donoghue v The Legal Aid Board and ors [2004] IEHC 413. The HSE opposes the applicat ion for cost s; their

submissions set out in letter of 20 May 2010, and reference was made to Southern Hote l Sligo Ltd v Iarnród Éireann [2007] IEHC 254.

2. It is ac cept ed by the parties that the f irst named respondent would not have been a ble to obta in representation from the Legal Aid

Board (assuming that she would otherwise qualify for such represent ation) betwe en the t ime she was notified of t he application for

the Emergency Care Order and the hearing of that application.

3. It is further ac cepted by t he parties that it is most unlikely that t he first named respondent would have been able t o obtain

representation from the Legal Aid Board (assuming that she would otherwise qualify for such representation) betw een the t ime she

was notified of the applicat ion for the Interim Care Order and the hearing of that applicat ion.

4. By their very nature, all applications f or Emergency Care Orders and Interim Care Orders are of momentous importance. Emergency

Care Order and Interim Care Order applicat ions are subject to t he welfare principle, both by it s spec ific incorporation into the Act and

pursuant to t he Constitut ion and the ECHR. The welfare of the c hildren requires that the c ourt should deal with suc h applications in a

manner that recognises t heir urgency while considering all matters perta ining to the applicat ion that may be brought to the c ourt’s

attent ion by any party (or otherwise).

5. Children themselves (even t hose who might have suffic ient understanding) are rarely present at (or on notice of) Emergency Care

Order or Interim Care Order applications. It falls to t he applicants and respondents t o inform the c ourt of the fa ct s, to adduce

evidence including expert evidence, and to address the c ourt as t o the legal question of whether t he threshold conditions for t he

granting of the applicat ion have or have not been met.

6. In general terms, the applicant (whic h is always the HSE) is both skilled and experienced in t he court proc ess of application for

Emergency Care Orders and Interim Care Orders, while the respondent is not. S ave where t he court is satisfied t hat t he matter may

proceed ex part e, t he welfare of t he c hild requires that the respondent parent or guardian (who is in a unique position to assist t he

inquiry of t he court and its dec ision whether to grant or refuse the application) should have the opportunity to present his or her

case, and should be assisted in doing so as far as possible (in a manner consistent with the urgenc y of t he matter).

7. The c ourt will assist respondents as far as is possible; however, the court’s assist ance is not equivalent t o a respondent having his

or her own representation.

8. In many cases in the District Court, t he court can ass ist a person by a djourning a ca se to give the person t ime to consider

whether to obtain legal advice and/or legal aid, and time to arrange representat ion. Given the nature of Emergency Care Order and

Interim Care Order applications, adjournment is unlikely to be appropriate, ce rtainly not without a detailed c onsideration of the merits

of the application, and suc h consideration of t he merits would similarly require that t he respondent’s c ase be present ed in the

interests of the we lfare of the child.

9. If the respondent cannot acc ess Legal Aid for the Emergency Care Order and Interim Care Order applicat ions, then t he respondent,

for cost reasons, may not be able to sec ure private representat ion. The abse nce of representation may result in the respondent

failing to properly and fully present his or her case, w hich failure is detrimental to the we lfare of the subject c hild. In order to ensure

the paramountcy of the welfare of the c hild, the matter of cost s of representation should not prevent t he respondent being

represented.

10. Sect ion 3 of the Child Care Act 1991 makes it a funct ion of the HSE t o promote the welfare of children not receiving adequate

care and protec tion. Section 16 of t he same Act requires the HSE to instit ute proce edings in the circumstance s set out t herein. And,

sect ion 24 requires that the c ourt in suc h proceedings have regard to the welfare o f the c hild as the f irst and paramount

consideration. In bringing an applicat ion for an Emergency Care Order or Interim Care Order, the HSE is alleging that the c hild is not

receiving adequate c are and at tention, and t hat t he child is unlikely to receive suc h care and atte ntion if the applicat ion is not

granted. The Court, in vindicating the rights of the c hild, must have the best available assistanc e in its inquiry. If that is best

provided by a legally represented respondent, then in order to promote the welfare of the c hild as required by the said Act (and in the

absence of any ot her provision whereby the neces sary representation will in practice be provided by or funded by t he Legal Aid Board

or other body) the HSE should meet t he reasonable cos t of such representat ion if that cost is beyond t he means of the respondent.

11. The applicant refers to Souther n Hotel Sligo Ltd v Iarnród Éireann [2007] IEHC 254. The proceedings under the Environmental

Protect ion Agency A ct were not gov erned by the w elfare principle, were not of t he potentially momentous importance of Emergency

Care Order or Interim Care Order proceedings, and were not of t he same urgency. T he Environmental Protec tion Agency Act does not

contain sec tions comparable to sect ions 3, 16, and 24 of t he Child Care Act 2010.