MM v The Relevant Circuit Court Judge

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Baker
Judgment Date30 November 2016
Neutral Citation[2016] IEHC 756
Date30 November 2016
Docket Number[2015 No. 490 JR]

[2016] IEHC 756

THE HIGH COURT

JUDICIAL REVIEW

Baker J.

[2015 No. 490 JR]

IN THE MATTER OF THE CHILD CARE ACT 1991 (AS AMENDED)

BETWEEN
MM, MM (A MINOR SUING THROUGH HIS PARENT / NEXT FRIEND MM)

AND

MM (A MINOR SUING THROUGH HIS PARENT / NEXT FRIEND MM)
APPLICANTS
AND
THE RELEVANT CIRCUIT COURT JUDGE

(AS SUBSTITUTED)

THE CHILD AND FAMILY AGENCY (FORMERLY THE HEALTH SERVICE EXECUTIVE)
RESPONDENTS
AND

(BY ORDER)

MIRIAM LYNE
NOTICE PARTY

Practice and Procedures – The Child Care Act 1991 (as amended) – Impecuniosity of applicants – Award of costs of notice party – Role of guardian ad litem – Coincidence of interest

Facts: The counsel of the applicants sought costs for three unsuccessful judicial review applications filed against the second respondent, the Child and Family Agency (‘CFA’), in relation to child care and access orders. The notice party being the guardian ad litem, too, sought the costs order for engaging junior and senior counsel and filing reply affidavits and other submissions in those judicial review applications. The counsel of the applicants submitted that since the first applicant was impecunious, and the child care proceedings being sui generis, he should be awarded the costs of the aforesaid applications. The guardian ad litem claimed the costs on the basis of extensive work done by her.

Ms. Justice Baker refused to award costs to the counsel for the applicants in relation to the three judicial review applications. The Court held that the impecuniosity of the first applicant could not be a ground for awarding costs. The Court found that the said applications were time-barred and misconceived. The Court held that though the judge in the High Court played somewhat inquisitorial role in child care action but that was not the case with the District Court judge and the proceedings were carried out under the Child Care Act 1991, similar to other proceedings and hence, those proceedings were not completely sui generis. The Court noted that the stand taken by the guardian ad litem and CFA in the present case was similar and the additional burden by guardian ad litem could have been avoided had they both acted in agreement with each other without duplicating the efforts. Hence, the Court awarded one quarter of costs of the applications to the guardian ad litem as in view of the Court, when the statutory body instead of making direct submissions chose to support the case canvassed by others, the statutory body became liable for paying some of the costs of the other party. The Court allowed the fees of the junior and senior counsel engaged by the guardian ad litem.

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

This judgment is given in an application for costs by the applicants and the notice party in this and two other applications for judicial review brought by the first applicant and two of her children, both of whom are in the care of the State under the Child Care Act 1991 (‘the Act of 1991’).

2

Briefly, the applications for judicial review were as follows:

3

In proceedings bearing record no. 2015/490 JR in which I gave judgment on 29th July, 2016 [2016] IEHC 449, the applicants sought judicial review by way of a declaration that the Circuit Court is obliged to provide a written record of its judgments in circumstances where the DAR recording of the child care proceedings in the Circuit Court was not available.

4

The relief was refused on a number of grounds and in the concluding paragraph I said as follows:

‘49. For all of these reasons I propose to refuse the relief sought on the grounds that the application is out of time, that the relief sought is futile, would not benefit the applicants and one which in my discretion I consider to be pointless, and because I consider that the interests of justice do not otherwise require me to make the order.’

5

In the second proceedings bearing record number 2015/497 JR, an order was sought quashing a decision of the District Court made on 25th May, 2015 that the guardian ad litem appointed by that court some four years previously be entitled to ‘act as a party’ in the care proceedings. The grounds on which relief was sought are identified at paragraphs 7 – 12 of my judgment [2016] IEHC 450.

6

That application for judicial review was refused partly because the applicants were well out of time to seek an order of certiorari quashing the appointment of a guardian ad litem on 27th October, 2011, nearly four years before the proceedings were commenced.

7

Concluded my judgment as follows:

‘50. I consider that the relief sought by the applicant in these proceedings in regards to the appointment of the guardian ad litem are a collateral attack on the conduct of the hearing before the District and Circuit Courts, and on the judgments of each of those courts, and I do not propose making orders in those circumstances.’

8

I adjourned the delivery of judgment for a period with regards to one issue that arose in those proceedings, namely:

‘(a) A declaration that there is no lawful authority for the jointure of a guardian ad litem as a party to proceedings under the Act of 1991.

(b) A declaration that as a guardian ad litem is merely a potential witness, that there is no lawful basis for permitting him/her to either examine or cross-examine witnesses which make legal submissions to the court, and that the sole permitted role is to convey to the court what she or he believes to be the views of the child, or matters that are in that child's best interest.’

9

I adjourned for further consideration the delivery of judgment on the precise role the guardian ad litem was entitled to play in the proceedings under the Act of 1991, because I was concerned that future participation of the guardian ad litem in the District Court case was vulnerable to challenge. I explained the reason for this as the ‘enthusiastic’ legal representation by junior and senior counsel in a very large number of District Court hearings in the child care proceedings and that a more detailed consideration of the single question regarding the nature of the role to be played by the guardian ad litem might ‘obviate the need for future application for judicial review and/or appeal with regard to that point alone’, because the interests of the children required that there be an end to the lengthy and contentious litigation regarding their care.

10

I then delivered my judgment on that point alone by way of supplemental ex tempore ruling on 14th October, 2016, the same day I delivered judgment in another case to which I made reference, namely A.O'D v. Judge O'Leary [2016] IEHC 555.

11

The declaration was for the reasons therein set out.

12

In the third application bearing record number 2015/526 JR the applicants sought judicial review in relation to an issue of the access to be exercised by the mother to her son, the second named applicant. That was an application for leave to bring judicial review which was refused in a written judgement [2016] IEHC 451 for the following reason:

‘22. … [I]t is outside my jurisdiction to make any order directed to the CFA with regard to the management of access as I have no evidence before me, nor could I have, on an application where the jurisdiction invoked is judicial review, on which I could coherently make a finding of fact with regard to how access must best be regulated in the interest of the rights of the child.

The costs of the three applications
13

Counsel for the applicants seeks the costs of each of the three judicial reviews against the Child and Family Agency (the ‘CFA’). This is notwithstanding that the applicants were not successful in obtaining any of the reliefs sought.

14

It is argued that the first applicant, the mother, is impecunious, although no evidence was adduced, either at the hearing of the substantive case or at the hearing of the costs issue, that this was so. As I have already noted, the applicants were represented by senior and junior counsel in very many of the over 40 hearings in the District Court, and at the hearings in the High Court. No evidence was adduced that the first applicant had sought and been refused legal aid, that she might not have qualified for legal aid for some reason, or that she otherwise found herself in a position that she had no option but to instruct private solicitors and counsel. I do not consider the impecuniosity of the applicants is a reason to award costs.

15

The primary argument made by the applicants is that the litigation is ‘ sui generis’ and was one in which the rights of a parent and child regarding their ongoing relationship was sought to be established.

16

It can scarcely be doubted that child care proceedings are to an...

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