Legally Aided Parents in Special Care Proceedings: Costs Must Be Determined “As If” No Legal Aid (s.33 Civil Legal Aid Act 1995)

Case: The Child and Family Agency v D and Ors (Approved)  |  Citation: [2026] IEHC 33  |  Court: High Court (Special Care)  |  Judge: Jordan J  |  Date: 22 January 2026

1. Introduction

This decision concerns an application for costs arising from High Court Special Care proceedings under s.23 of the Child Care Act 1991 (as amended). A Special Care Order was granted on 25 October 2023 committing the child, B, to the care of the Child and Family Agency (“CFA”) with a direction for detention at Ballydowd Special Care Unit, and subsequently extended on best-interests grounds.

After the substantive proceedings concluded, costs were sought by (i) the father (not legally aided) and (ii) the Guardian ad Litem (“GAL”) (statutorily entitled to costs under s.26). The GAL’s costs were awarded, as were the father’s. The central issue arose from the mother’s costs application: she had participated fully but was in receipt of civil legal aid. The High Court noted a prior practice of declining to award costs to legally aided respondents, and the mother challenged that practice as unlawful.

Given that the issue was arising in multiple cases on the Special Care list, this judgment was intended to set the governing approach.

Key issue

• Whether a parent who is a respondent in Special Care proceedings and is in receipt of legal aid is entitled to have a costs application determined without regard to legal aid—and, on the facts, to receive an award of costs.

2. Summary of the Judgment

The High Court held that the mother had a right to seek costs and that her application must be adjudicated as if she were not in receipt of legal aid, in accordance with s.33(1)–(3) of the Civil Legal Aid Act 1995. Rejecting the CFA’s attempt to characterise her as merely a “notice party”, the Court found she was a respondent from the outset and participated as such.

On the facts, the mother’s participation was responsible, reasonable, and helpful, and benefited the child. The Court therefore awarded the mother her costs (including reserved costs), to be adjudicated in default of agreement.

The Court refused the CFA’s request to cap recoverable costs by reference to Legal Aid Board fee schedules, leaving the quantification to the Legal Costs Adjudicator if not agreed.

3. Analysis

3.1 Precedents Cited

Child and Family Agency v A. (A Minor Represented by Order of his Solicitor and Next Friend Gina Cleary) and C [2020] IECA 52 (“CFA v A”)

The Court treated CFA v A as a persuasive and highly relevant authority on costs where one party is legally aided. Jordan J extracted a core constraint from Whelan J’s reasoning: courts may not decide costs applications on an impermissible policy premise that “one State agency will be reimbursing another”.

While acknowledging factual differences between CFA v A and the present Special Care context, Jordan J treated the principle as controlling for the legal-aid dimension: legal aid does not justify a different judicial approach to costs. The judgment also relied on CFA v A for its articulation of the constitutional significance of parental participation in litigation affecting a child’s welfare and rights.

Health Service Executive v AO [2013] 3 IR 287

Jordan J used O’Malley J’s reasoning as reinforcement that eligibility for legal aid is not a factor in adjudicating entitlement to apply for costs.

Although Health Service Executive v AO concerned a party who was not legally aided (and had not applied for it), the High Court treated it as expressing a broader principle: the costs jurisdiction is not to be distorted by assumptions about legal aid availability or uptake.

Child and Family Agency v OA [2015] 2 IR 718

The judgment engaged with MacMenamin J’s discussion of costs principles in child care proceedings and the limits of “costs follow the event” in a multi-stage welfare process. Jordan J cited MacMenamin J’s observation that “event” is often an ill-fitting concept in child care cases and that “outcome” may be a more apposite framing, given the continuum of orders and directions.

Jordan J also relied on MacMenamin J’s distinction between District Court child care proceedings and High Court proceedings (then including inherent jurisdiction cases) where complexity can make it unduly burdensome for parents to bear their own costs—an observation the Court regarded as pertinent to the statutory Special Care scheme.

Re TH [2020] IEHC 487

Jordan J drew from Hyland J’s analysis that even in non-traditional or inquisitorial contexts (there, a wardship enquiry), a court retains broad discretion to make costs orders on bases other than identifying a “successful party”.

The High Court adopted this as a useful analogy: Special Care proceedings may be adversarial in form, but they operate within a welfare-focused and partly inquisitorial judicial function, and the absence of a clear “event” does not bar costs awards.

3.2 Legal Reasoning

(a) Statutory command under s.33 Civil Legal Aid Act 1995

The fulcrum of the reasoning is s.33(2) of the Civil Legal Aid Act 1995, which requires that a court “shall make an order for costs” in matters involving legally aided parties “in like manner and to the like effect” as if no party were legally aided. Jordan J interpreted this as displacing any practice of declining costs merely because a party is legally aided.

The Court thus framed the correct methodology: remove legal aid from the equation and determine costs by applying ordinary costs principles, adapted (as necessary) to the Special Care context.

(b) Rejecting the “notice party” characterisation under s.23G

The CFA argued that s.23G requires only that certain persons be given notice of Special Care applications, and that—unlike the explicit costs regimes under ss.25 and 26—there is no express costs provision for such notified parents/guardians. It invoked a statutory-construction maxim (generalia specialibus non derogant) to say that the presence of specific costs provisions for children/GALs implied an intention not to extend a similar regime to parents.

Jordan J accepted a limited point: the legislation does intentionally provide mandatory costs treatment for the child and GAL in ss.25–26. However, the Court rejected the leap from “special provisions exist for some” to “no discretion exists for others”. The absence of an express costs provision for parents under s.23G did not eliminate the High Court’s general costs jurisdiction nor its discretion to award costs to a participating parent.

Critically, the High Court found the CFA’s factual and procedural stance inconsistent with its own pleadings: the mother was named as first respondent from inception and participated fully as such. On that reality, the Court rejected the suggestion she was merely “a notice party”.

(c) Special Care proceedings and the limits of “costs follow the event”

The Court acknowledged that Special Care proceedings do not map neatly onto conventional civil litigation: they can involve multiple hearings, extensions, and directions, and may lack a singular “event” or “winner”. Nonetheless, relying on Child and Family Agency v OA and Re TH, the Court held that the absence of a clear event does not preclude a costs order; discretion remains and can be exercised to reflect the overall “outcome” and the justice of the case.

(d) Constitutional dimension: effective participation and representation

The Court treated the mother’s participation as materially connected to the vindication of constitutional rights engaged where a child’s liberty and welfare are at stake. Echoing CFA v A, Jordan J accepted that:

• the child is entitled to have a parent’s views heard on matters touching welfare and rights;
• the parent is entitled to engage to vindicate parental rights and responsibilities; and
• proper representation in life-altering child care litigation is a constitutional practical necessity.

While constitutional rights did not mechanically dictate a costs order, they reinforced the legitimacy of parental participation and undermined any approach that would, in effect, penalise a parent for being legally aided.

(e) Disposition on quantum: no fee-capping to legal aid rates

Having decided to award costs, the Court refused to limit recoverable costs to Legal Aid Board schedules. The Court instead left quantification to agreement or, failing that, adjudication by the Legal Costs Adjudicator. This underscores that s.33 requires treating the legally aided party like any other party for costs purposes, not creating a parallel, reduced recovery track.

3.3 Impact

(a) Ending a local “practice” inconsistent with s.33

The clearest impact is institutional: the judgment repudiates a prior practice in the Special Care list of declining costs to legally aided respondents. Going forward, legally aided status cannot be used as a reason to refuse costs.

(b) Clarification of party status in s.23G Special Care litigation

The Court’s rejection of the “notice party” label (where, in reality, the parent is named/responding and participates) may shape how applications are pleaded and how costs positions are taken. If the CFA joins a parent as a respondent and expects active participation, it becomes harder to argue that the parent is outside the ordinary costs framework.

(c) Practical consequence for funding and litigation behaviour

The judgment may increase costs exposure for the CFA in Special Care cases, particularly where parents participate responsibly and assist the court. It may also reduce incentives for tactical opposition to costs based solely on legal aid and encourage earlier costs agreements (given that adjudication was expressly contemplated).

(d) Broader doctrinal influence: welfare proceedings and “event-based” costs

By integrating the “outcome” framing from Child and Family Agency v OA and the discretion analysis from Re TH, the judgment strengthens a flexible costs approach for child-centred proceedings that are not readily reducible to win/lose events.

4. Complex Concepts Simplified

• “Special Care Order” (s.23 Child Care Act 1991): an order committing a child to the CFA’s care with authority to detain the child in a special care unit, typically engaging serious welfare concerns and the child’s liberty interests.
• “Legally aided” and s.33 Civil Legal Aid Act 1995: if a party has civil legal aid, the court must decide costs as though nobody had legal aid. Legal aid is not a reason to refuse costs.
• “Costs follow the event”: a general civil rule that the winner gets costs. In child care cases there may be no single “event”, so courts look more broadly at the overall “outcome” and fairness.
• “Guardian ad litem” (s.26): an independent person appointed to represent the child’s interests. The statute provides that the GAL’s costs are paid by the CFA (with potential recoupment directions).
• Generalia specialibus non derogant: a rule of interpretation meaning “general provisions do not override specific ones”. Here, it was invoked to argue that because the Act expressly provides costs for children/GALs, it impliedly excludes parents. The Court rejected that implied exclusion.
• “Adjudicated in default of agreement”: if parties cannot agree the amount of costs, an independent costs adjudication process determines the proper amount.

5. Conclusion

The Child and Family Agency v D and Ors (Approved) establishes, for Special Care proceedings, a clear rule of approach: a legally aided parent’s costs application must be determined without regard to legal aid, consistent with s.33 of the Civil Legal Aid Act 1995 and the reasoning in Child and Family Agency v A. (A Minor Represented by Order of his Solicitor and Next Friend Gina Cleary) and C [2020] IECA 52. The High Court also resisted an attempt to minimise parental status as mere “notice” participation under s.23G where the parent is named as a respondent and is expected to participate.

The judgment is significant because it aligns costs practice in the Special Care list with statutory command, confirms the continuing discretion to award costs in child welfare litigation even without a neat “event”, and recognises that effective parental participation— often constitutionally resonant in child liberty and welfare cases—should not be discouraged by an improper costs approach.