MM v The Child and Family Agency
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 17 January 2017 |
| Neutral Citation | [2017] IEHC 14 |
| Docket Number | [2015 No. 749 J.R.] |
| Court | High Court |
| Date | 17 January 2017 |
[2017] IEHC 14
THE HIGH COURT
JUDICIAL REVIEW
O'Regan J.
[2015 No. 749 J.R.]
IN THE MATTER OF THE CHILDCARE ACT 1991 (AS AMENDED)
Family – The Childcare Act 1991 – Access of child – Award of costs – Reduction in period of access
Facts: The applicant sought an order for quashing the District Court order refusing to award costs to the applicant in relation to certain proceedings. The applicant contended that since she was dependent upon social welfare, it would be injustice to require from her to discharge her own costs. The respondent contended that the proceedings instituted by it for the welfare of the child were non-adversarial and thus, the general rule with regard to the costs in civil cases would not apply.
Ms. Justice O'Regan refused to grant the relief to the applicant. The Court, applying the dicta of the Supreme Court in Child and Family Agency v. O.A. [2015] IESC 52, held that before awarding costs, the District Court must inquire about the appropriateness of initiation of childcare proceedings, the reasonableness of conduct of the Child and Family Agency (‘CFA’), the outcome of the case and the prejudice caused to the parents of the child. The Court, after judging the present case on the aforesaid parameters, held that it was necessary to start the present proceedings by CFA in relation to child access with CFA playing a positive role and the proceedings were non-complex in nature. The Court, thus, held that the District Court was correct in refusing to award costs to the applicant, notwithstanding the injustice caused to the applicant as the proceedings were neither lengthy nor complex.
The within matter was heard on 30th November, 2016 and concerned an application on the part of the applicant to quash the order of the District Court made on 28th September, 2015 which order refused the applicant her costs of certain District Court proceedings culminating in an order of the District Court on 25th May, 2015. Various additional declaratory reliefs were sought by the applicant in the context of the within judicial review application, however, arguments to ground same were not developed, either in oral submissions or ultimately in two sets of written submissions received from the applicant, save in the context that the District Court judge erred in his assessment and understanding of the decision in the case of the Child and Family Agency v. O.A. [2015] IESC 52 being a judgment of the Supreme Court delivered on 23rd June, 2015.
The applicant is the mother of two infant children who are the subject matter of a prior District Court order of 30th April, 2013 made under s. 18 of the Childcare Act 1991. The respondents subsequently, by application of the 14th April, 2014, sought directions under s. 47 of the 1991 Act as to whether or not suspension of access would be in the best interests of the infant, M., born in April, 2010.
An order for directions was made by the District Court on 30th April, 2014 and following the implementation of such directions it appears that the access status as between the applicant and the infant, M., improved so that the respondents indicated they were not pursuing the possibility of suspension of access. On or about 16th December, 2014 the respondent clarified that the variation in access sought was to reduce same to one hour every three or four weeks from one and a half hours per week.
Throughout it appears that the applicant did not accede to any reduction in access and in fact is seeking the reunification of her family.
An application for costs was processed in that the matter was adjourned further from the 25th May, 2015, the applicant tendered submissions on the issue for costs and ultimately an order in respect of costs was made by the District Court on 28th September, 2015 in a lengthy written judgment.
As indicated above I have two sets of submissions on behalf of the applicant, both of which are undated.
The applicant's arguments might be summarised as follows:-
i. The District Court is required to make an order for costs in favour of the applicant if otherwise an injustice would be created.
ii. The only manner in which to assess whether or not the applicant should obtain costs from the respondent would be by assessing the means of the applicant and measuring that against the extent of the costs incurred.
iii. The applicant argues that the respondents were precipitous in instituting the proceedings before the District Court and continuing such proceedings and therefore the respondents had acted capriciously, arbitrarily or unreasonably in commencing and/or maintaining the proceedings.
iv. Because the applicant is dependent upon social welfare and has certain indebtedness it would be an injustice to require the applicant to discharge her own costs.
v. The applicant argues that when reviewing Item no. 3 at para. 49 of the Supreme Court judgment in O.A. aforesaid reference therein to length and complexity of proceedings is by way of effectively a yard stick to enable the Court to generally assess the rough level of costs.
vi. The applicant argues that in reviewing para. 49, item no. 4, the content thereof cannot refer back to items 1 to 3 or any one of them as this would negate the effect of items 1 to 3. By way of example the applicant asserts that if the burden of establishing truly exceptional was applied to Item no. 1, this would have the effect of negating the import of Item no. 1.
vii. The applicant argues that looking at the totality of para.49 of the Supreme Court judgment, 5 categories are identified, namely, categories 1 to 3. Thereafter in Item no. 4 two further categories are identified being (4) some clear feature and (5) an issue or issues which render(s) the case truly exceptional.
viii. The applicant argues that applying the foregoing to the issue of costs would be the only manner in which the applicant's right to instruct private solicitors would be vindicated.
ix. Part of the complaint of the applicant in respect of the order of 28th September, 2015 is that it took into account extraneous irrelevant matters. That order was dealing with two issues – costs and consideration of comments vis a vis plaintiff counsel.
The respondent supports the judgment of the District Court of 28th September, 2015, although the respondent suggests that reference to a win, lose or a draw is not relevant. In addition, the respondents raise the following submissions:-
i. The respondents are mandated by virtue of the order in the case of M.Q. v. Gleeson & Ors. [1998] 4 I.R. 85 to be proactive in the community, ensuring insofar as possible the protection of children's welfare.
ii. The within proceedings are effectively non-adversarial proceedings with the Court having an investigative power (for example the commissioning of the s. 47 Report) and therefore general rules with regard to costs in civil cases would not apply.
iii. It cannot be said that the respondents failed in the proceedings before the District Court.
iv. The starting point in the assessment of costs is to the effect that there should be no order for costs, generally.
v. Insofar as the applicant asserts that the proceedings were lengthy,...
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