Irish Court of Appeal awards costs to recipient of civil legal aid joined in child welfare proceedings
The Irish Court of Appeal has awarded costs to the mother of a minor joined in child welfare proceedings by the Child and Family Agency (Tusla).
The appellant, C, is the mother of A, who was 17 years old at the commencement of the proceedings and the subject of a care order. Tusla joined C as a party to the proceedings as a second named defendant.
Tusla sought an order from the High Court that would have permitted A’s doctor to disclose that he had HIV to a girl that the agency believed he was having unprotected sex. The doctor feared that the girl was at risk of contracting HIV as a result and felt it necessary that she be informed. C fully supported her son’s position and opposed the reliefs offered by Tusla.
The High Court refused the order as it was not satisfied that the couple were having unprotected sex and, if they were, that the risk of HIV infection was found to be low.
At a subsequent costs hearing, Tusla agreed to A being awarded costs but disputed C’s entitlement to costs as she was merely a “witness to the fact” and had received civil legal aid under the Civil Legal Aid Act, 1995. Tusla relied on the Supreme Court case of The Child and Family Agency v O.A. [2015] 2 I.R. 718 wherein legal costs were not awarded in the District Court and on appeal in the Circuit Court as the applicant was in receipt of civil legal aid.
The trial judge agreed with this assessment and refused C’s application seeking costs.
On appeal to the Court of Appeal, C outlined a number of reasons as to why she felt the trial judge erred in law in failing to grant her costs. Among others, he erred in describing her as “a witness to the fact”, he erred in arguing that she did not require legal representation, he failed to recognise that the Child and Family Agency had named her as a party to the proceedings and he failed to apply section 33 of the Civil Legal Aid Act 1995 correctly.
In the Court of Appeal, Justice Máire Whelan outlined that a potential injustice would occur upon C if an order for costs was not made in her favour based on the circumstances of the case. She felt it was an unusual case and “wholly distinguishable” from The Child and Family Agency v O.A. [2015] 2 I.R. 718.
Justice Whelan argued that the “welfare of A was a matter of paramount consideration in the proceedings”. C was entitled to exercise her parental rights and her participation in the proceedings was a “practical vindication of her constitutionally protected rights as parent and guardian of A”.
Justice Whelan found that the arguments raised by C were of a “special and general public importance” and she in no way sought personal gain from her involvement in the proceedings.
Justice Whelan was satisfied in reversing the order of the High Court and granting costs to C against the Child and Family Agency.