U.MCE v Child and Family Agency

• Jurisdiction: Ireland
• Judge: Ms. Justice Bronagh O'Hanlon
• Judgment Date: 18 December 2014
• Neutral Citation: [2014] IEHC 697
• Docket Number: Record No: 7661P/2014
• Court: High Court
• Date: 18 December 2014

[2014] IEHC 697

THE HIGH COURT

O'Hanlon J.

Record No: 7661P/2014

IN THE MATTER OF C. MCE, A MINOR BORN ON THE 19TH OF APRIL, 1998

AND IN THE MATTER OF ARTICLE 40.3 OF THE CONSTITUTION AND ARTICLES 41 AND 42 OF THE CONSTITUTION

AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964 (AS AMENDED)

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

AND IN THE MATTER OF THE MENTAL HEALTH ACT, 2001 (AS AMENDED)

BETWEEN:

U.MCE

Plaintiff

-and-

THE CHILD AND FAMILY AGENCY AND HEALTH SERVICE EXECUTIVE

Defendant

-and-

J.F

Notice Party

-and-

CQ, GUARDIAN AD LITEM

Notice Party

Family – Childcare proceedings – Child and Family Agency – Costs – Discretion under O. 99 of the Rules of the Superior Courts 1986.

Facts: Following a successful emergency application before the High Court and the lack of effective affirmative action by the Health Service Executive, the plaintiff applied for costs arising from childcare proceedings against the Child and Family Agency and the Health Service Executive. The defendant contended that costs would not be granted to a party found to be in receipt of legal aid under the provisions of the Civil Legal Aid Act 1995. The plaintiff asserted the general principle of Irish litigation that ‘costs follow the event’.

Ms. Justice Bronagh O'Hanlon held that the application for costs in favour of the plaintiff would be granted. The Court observed that the success of the plaintiff before the High Court mandated the application of the general procedural principle ‘costs follow the event’ as provided by o. 99 of the Rules of the Superior Courts 1986. The Court declined the contention of the defendant that costs would not be granted to a party found to be in receipt of legal aid under the provisions of the Civil Legal Aid Act 1995. The Court observed that the fact of receipt of legal aid would not prejudice the entitlement to an order of costs in appropriate circumstances.

JUDGMENT of Ms. Justice Bronagh O'Hanlon delivered on the 18th of December, 2014.

Introduction

1 These proceedings concern the plaintiff's application for costs arising from childcare proceedings against the Child and Family Agency and the Health Service Executive (hereinafter referred to as the ‘HSE’).

2 The plaintiff is the mother of ‘C’, a minor born on the 19th of April, 1998. ‘C’ has exhibited challenging behaviours from an early age. On reaching adolescence, ‘C's’ behaviours escalated to engaging in serious violence against family members and damaging the property of third parties.

3 On the 5th December, 2012, the plaintiff agreed to place ‘C’ in voluntary care, so as to obtain a sound diagnosis of the challenging behaviours exhibited by ‘C’, and in turn, receive the appropriate therapeutic care and support structures. ‘C’ was placed at The Orchard Residential Care Facility.

4 In January 2014, an application was issued before the District Court pursuant to s.47 of the Child Care Act 1991, seeking directions from the Court in order to secure ‘C's’ welfare. In May 2014, the Child and Family Agency obtained a psychiatric assessment of ‘C’ from Dr. Sean O'Domhnaill, Consultant Psychciatrist. Dr. O'Domhnaill recommended that ‘C’ be placed in a private residential facility, where the necessary psychiatric supports could be obtained. On these recommendations, the Child and Family Agency sought a residential placement for ‘C’. During this time, ‘C’ behaviours continued to deteriorate. These behaviours placed ‘C’ and other individuals at significant risk of harm. From January 2014 to August 2014, ‘C’ continued residential placement at The Orchard.

5 On the 28th August, 2014, the plaintiff issued proceedings in the High Court seeking orders compelling the Child and Family Agency to secure a bed for ‘C’ at an approved residential centre. These proceedings were issued as ‘C's’ behaviours were now manifesting in a manner that were placing her life at risk. On the 29th August, 2014, the plaintiff made an emergency application to the High Court, as a bed in an approved residential centre had not been identified nor obtained for ‘C’. The High Court was notified that ‘C’ would be placed at the Acorn unit in Mullingar, County Westmeath, for the forthcoming weekend. On conclusion of the submissions by the parties, MacEochaidh J. made the following orders:

(i) An order directing the clinical directors of a number of hospitals to meet in order to seek to identify a bed for ‘C’.

(ii) An order that the care staff at the Acorn Lodge be provided with input from an appropriately qualified psychiatrist over the weekend in order to assist them in managing ‘C's’ extremely difficult behaviours over the weekend.

6 On the 1st September, 2014, there was still no bed secured for ‘C’. The matter was reviewed by Cross J. in the High Court. On the 2nd September, 2014, the parties informed the District Court that a bed was secured for ‘C’ at Linn Dara, which is an approved centre for the purposes of the Mental Health Act 2001. The District Court granted an order detaining ‘C’ pursuant to s.25 of the 2001 Act, on foot of an application by the HSE.

7 On the 30th October, 2014, this Court heard an application for costs on behalf of the plaintiff. At the hearing, the Child and Family Agency indicated that they would be seeking orders pursuant to Article 56 of Council Regulation (E.C) No. 2201/2003, to place ‘C’ in a therapeutic facility outside the State.

8 These proceedings have been adjourned generally, and the plaintiff seeks an order for costs arising from the said proceedings.

Submissions of the Plaintiff

9 The first point raised by the plaintiff is the general principle of Irish litigation that ‘costs follow the event’. Order 99 of the Rules of the Superior Courts 1986 governs the procedures and protocols to be adopted by the High Court when awarding costs in legal proceedings. The plaintiff submits that Order 99 rule 1, sub rules 1-4 of the 1986 Rules provides pertinent guidance to the Court in determining the issue of costs. Order 99 rule 1, sub rules 1-4 state as follows:

‘1. Subject to the provisions of the Acts and any other statutes relating to costs and except as otherwise provided by these Rules:

(1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.

(2) No party shall be entitled to recover any costs of or incidental to any proceeding from any other party to such proceeding except under an order or as provided by these Rules.

(3) Subject to sub-rule (4A), the costs of every action, question, and issue tried by a jury shall follow the event unless the Court, for special cause, to be mentioned in the order, shall otherwise direct.

(4) Subject to sub-rule (4A), the costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow the event.’

10 Counsel for the plaintiff concedes that the defendant commenced the initial proceedings in the District Court pursuant to s.47 of the Child Care Act 1991. However, the plaintiff points out that, notwithstanding the defendant commencing proceedings, the defendant failed to secure placement and treatment for ‘C’. Thus, the plaintiff commenced emergency proceedings in the High Court to seek the necessary orders in respect of care and provision of services to ‘C’. The plaintiff submits that their emergency application was successful in the High Court on the grounds that the aforesaid orders and directions were made by the Court and in turn, costs should follow the event.

11 The second point proffered by the plaintiff is that this Court, in determining the final award of costs, should not consider the fact that the plaintiff is in receipt of legal aid. The plaintiff highlights the Court's attention to s.33(2) of the Civil Legal Aid Act 1995, which states as follows;

‘A court or tribunal shall make an order for costs in a matter in which any of the parties is in receipt of legal aid in like manner and to the like effect as the court or tribunal would otherwise make if no party was in receipt of legal aid and all parties had respectively obtained the services of a solicitor or barrister or both, as appropriate, at their own expense’.

12 In support of the applicability of s.33(2) of the 1995 Act to the current proceedings, the plaintiff relies on the decision of O'Malley J. in Health Service Executive v OA [2013] IEHC 172. OA concerned a consultative case stated from the District Court to the High Court. The District Court sought guidance on two points (at para 4);

‘(i) In exercising my discretion [as a District Court judge] as to whether or not to grant costs to the Respondent [can I] take into account that the Respondent may have been entitled to receive legal aid and has access to legal aid.

(ii) In exercising my discretion as to whether or not to grant costs to the Respondent [must I] take into account that the Respondent may have been entitled to legal aid and...