Ordinary Costs Rules Apply to Parents Defending Child Access Orders on Judicial Review

Case: M v F (Child Access Arrangements) [2026] IEHC 680
Court: High Court of Ireland
Judge: Mr. Justice Garrett Simons
Judgment delivered: 22 October 2026

1. Introduction

This judgment concerns the allocation of costs following a successful judicial review of a District Court child access order. Its central holding is that a parent joined as the opposing party in such proceedings has no special immunity from costs merely because the underlying dispute concerns contact with a child. Where that parent elects to defend the challenged order, the ordinary statutory costs framework applies.

The mother had successfully challenged an order made in proceedings under the Guardianship of Infants Act 1964. The father, who was the sole respondent, had fully opposed the judicial review. The remaining question was whether he should pay the mother’s costs or whether each party should bear their own.

The High Court awarded the mother her costs, subject to specified exclusions. Although recognising the personal importance of child access, the court held that this did not justify maintaining a full defence of proceedings whose fundamental procedural defects had become apparent from the hearing transcript.

2. Background and Procedural Context

The challenged District Court order was made on 10 October 2025. The mother’s judicial review initially named the District Court judge as a respondent, contrary to Order 84, rule 22(2A) of the Rules of the Superior Courts. That rule ordinarily requires the other parties to the lower-court proceedings, rather than the judge, to be named as respondents.

An amended statement of grounds removing the judge was produced at the leave hearing on 23 March 2026. Bradley J. granted leave by reference to that amended document, although its formal filing was not completed until 28 August 2026. The proceedings thereafter continued against the father alone.

A stay prevented the District Court order from operating while the judicial review proceeded. Given the involvement of a vulnerable child, Simons J. expedited the substantive hearing rather than conducting a separate contested hearing on a further extension of the stay.

The subsequent chronology was particularly important to the costs decision:

  • On 9 July 2026, both parties received a transcript of the challenged District Court hearing.
  • At the substantive hearing on 28 July 2026, the father defended both the availability of judicial review and the fairness of the District Court process.
  • The High Court subsequently listened to an audio recording of a further District Court hearing on 26 November 2025. Both parties received access to the recording and an opportunity to address it on 31 July 2026.
  • The principal judgment was delivered on 7 August 2026.

The father’s defence included arguments that the challenge was premature, that the order was interim, and that an appeal to the Circuit Court was an adequate alternative remedy. He also defended the treatment of the child’s views, the expert’s involvement, the District Court judge’s interventions, and the opportunity afforded to the mother to cross-examine the expert.

3. Summary of the Decision

In the principal judgment, the High Court found that the District Court hearing was fundamentally flawed in four respects. The costs judgment expressly identifies failures concerning the legislation implementing the constitutional requirement to ascertain and give appropriate weight to the child’s views, together with fundamental decision-making defects and a denial of justice to the child and the mother.

For costs purposes, the High Court held that:

  • The mother was entirely successful in obtaining the substantive relief opposed by the father.
  • The father’s compulsory joinder as the appropriate contradictor did not oblige him to defend the proceedings or protect him from costs if he chose to do so.
  • His desire to preserve access to his child did not, by itself, justify departure from the ordinary costs rule.
  • Continuing to defend the District Court proceedings after receiving the transcript was not objectively reasonable in the statutory costs sense.
  • His receipt of civil legal aid did not alter the allocation of liability.

The mother therefore recovered the costs of the judicial review, apart from the costs of amending the statement of grounds and preparing and filing an irrelevant psychologist’s affidavit.

4. Analysis

A. The Statutory Costs Framework

Sections 168 and 169 of the Legal Services Regulation Act 2015 provide the governing framework. Under section 169, a party who is “entirely successful” is presumptively entitled to costs against the unsuccessful party. The court retains discretion to order otherwise, but must explain any departure.

Entire success is assessed practically. Obtaining the substantive outcome sought may suffice even where a party does not succeed on every argument or every pleaded request for relief. Once the presumption applies, the unsuccessful party must identify reasons capable of displacing it.

The legislation also permits a distributive approach: costs may be allocated separately for distinct hearings, issues or stages rather than treating the litigation as indivisible. However, issue-based adjustments require practical justification. Relevant considerations include whether an issue was separately pleaded, required additional evidence, occupied identifiable hearing time, and materially increased costs. Courts should avoid disproportionate attempts to reconstruct negligible expenditure.

B. Precedents Cited and Their Influence

M. (Child Access Arrangements) v. F. [2026] IEHC 537

This was the principal judgment in the same proceedings, rather than an independent authority establishing the general costs rules. It supplied the substantive foundation for the later decision: the mother had successfully demonstrated fundamental defects in the District Court process.

The costs ruling must therefore be distinguished from the merits ruling. It did not newly determine the child’s access arrangements, resolve the underlying allegations between the parents, or establish comprehensive rules about expert reports. It addressed who should bear the expense of obtaining judicial review relief.

Little v. Chief Appeals Officer [2024] IESC 53

This Supreme Court authority informed the treatment of “entire success”. Its significance was primarily procedural: identifying an entirely successful party determines who benefits from the statutory presumption and who must justify a different allocation.

The mother’s unsuccessful requests for broader relief did not defeat her entitlement. She obtained the substantive result in relation to the relief opposed by the father, and the additional pleaded requests generated no additional costs for him. The court accordingly rejected an excessively literal approach under which any unsuccessful aspect of a claim would necessarily prevent a party from being entirely successful.

McIlwraith v. Judge Fawsitt [1990] 1 I.R. 343

This authority explains the special procedural setting of judicial review directed at lower-court decisions. Ordinarily, the judge is not the party against whom a successful applicant should recover costs where there is no relevant personal impropriety and the judge has not sought to defend the impugned order.

The decision supported joining the other contesting party as a legitimus contradictor: a proper opposing party capable of contesting the application. That arrangement is now reflected in Order 84, rule 22(2A).

The crucial distinction is between being joined and choosing to oppose. The father had to be brought before the court as the appropriate respondent, but this procedural status did not require him to defend the District Court’s conduct or confer special protection from adverse costs.

Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4

This decision supported the proposition that an unopposed judicial review application does not succeed automatically. Even where no respondent contests the application, the High Court must independently be satisfied that granting relief is a lawful exercise of its supervisory jurisdiction.

That principle answered an important practical concern. The father could have declined to oppose the challenge without conceding that the mother was automatically entitled to relief. The court would still have examined whether the District Court proceedings justified intervention. Non-opposition therefore offered a legitimate alternative to a fully contested hearing.

Kilty v. Judge Dunne [2020] IESC 65, [2024] 3 I.R. 702

This authority reinforced the connection between active opposition and exposure to costs. The High Court observed that even a lower-court judge who sought to participate in order to oppose judicial review would not enjoy immunity from costs merely because of judicial office.

It followed that the father could not derive special costs protection simply from being joined under the procedural rule. The court’s focus was on the litigation position he chose to adopt, rather than solely on why he became a respondent.

In the matter of M.V. Lady Magda [2021] IECA 51

This authority informed the meaning of “reasonable” conduct for costs purposes. Reasonableness requires more than good faith and a subjective belief that an argument will succeed. Nevertheless, it does not require the party ultimately to be correct: otherwise, reasonableness would merely duplicate success.

The High Court developed this distinction by identifying possible objective justifications for pursuing an unsuccessful issue, including uncertainty in legislation or authority, its significance to the outcome, or the opponent’s conduct of the case. Assessment must reflect the circumstances confronting the party at the time, rather than hindsight alone.

C. Why the Father’s Full Opposition Attracted Costs

The father argued that he had defended a sensitive personal right rather than sought financial or material advantage. The court accepted that preserving contact with his child was understandably important. However, the mother had an equally relevant interest in securing the removal of an order made through a fundamentally defective process.

The decisive evidence was the District Court transcript. Once it became available, the court considered that the exceptional defects and the absence of any real likelihood of successfully resisting judicial review should have been apparent. Nevertheless, the father continued to defend the procedural fairness of the hearing.

The subsequent audio recording strengthened that conclusion. It provided further objective support for the complaint that the District Court judge’s earlier adverse assessment of the mother had crystallised and continued to affect the approach taken.

The court did not hold that every unsuccessful defence of a child access order is unreasonable. Its conclusion depended on the particularly serious defects disclosed by the available record and the father’s continued comprehensive opposition despite that material.

Significantly, the court indicated that, had the father ceased opposing the application after receiving the transcript, there might have been a respectable argument for relieving him of costs incurred up to that point. This was a conditional observation, not an actual exemption. It demonstrates that litigation conduct must be reassessed as evidence emerges.

D. Answering Allegations Was Distinct from Defending the Order

The father also relied on his wish to answer serious allegations made against him. The High Court accepted that he was entitled to deny those allegations and reserve his position.

However, judicial review did not determine whether those allegations were true. Denying them did not require him to maintain that the District Court hearing was fair or to resist an order of certiorari. The distinction is important: accepting that a hearing must be set aside is not equivalent to accepting the opposing party’s account of the underlying family dispute.

E. Unsuccessful Relief and Applicant-Caused Expense

The mother had sought broader relief that the principal judgment refused because no State actor had been joined as the appropriate contradictor for it. Nevertheless, those requests were not pursued at the substantive hearing and caused the father no additional expense. They therefore warranted no costs reduction.

Conversely, the court excluded costs actually attributable to the mother’s side’s procedural error: drafting and filing the amended statement of grounds. It also excluded the costs of the child psychologist’s affidavit because that evidence was irrelevant to the judicial review issues.

The resulting order combined substantive success with targeted scrutiny of expenditure. Winning did not entitle the mother to recover unnecessary or self-generated costs.

F. Civil Legal Aid: Liability and Recovery Are Separate

Section 33(2) of the Civil Legal Aid Act 1995 requires costs to be ordered as though the parties were not legally aided. The father’s legal aid therefore provided no basis for displacing the ordinary rule.

The court distinguished the legal allocation of liability from practical recovery. An unsuccessful party’s financial circumstances may affect whether an award can be collected, but do not automatically change who should bear it.

Nor does the Legal Aid Fund automatically pay an adverse costs order. Under section 36, such an award is not payable from the Fund, apart from the limited possibility of an ex gratia payment by the Legal Aid Board where the statutory conditions are satisfied. More generally, the successful party has no automatic State indemnity merely because the opponent cannot pay.

5. Scope of the Costs Order

The recoverable costs included:

  • The ex parte application for leave to bring judicial review.
  • The stay applications.
  • The two hearings in July 2026.
  • The costs hearing on 5 October 2026.
  • One set of written submissions for the substantive proceedings and one set for the costs application.

The costs of drafting and filing the amended statement of grounds and the child psychologist’s affidavit were excluded. If the parties could not agree the amount, it would be adjudicated under Part 10 of the Legal Services Regulation Act 2015.

6. Potential Impact and Limits

For respondents in judicial review: mandatory joinder is not mandatory opposition. A party directly affected by a lower-court order must distinguish defending personal interests from defending an objectively defective judicial process.

For litigation strategy: transcripts and recordings may materially alter the costs assessment. An initially arguable defence should be reviewed when the underlying record becomes available. Continuing opposition can expose a party to the costs of a hearing that could otherwise have been avoided.

For family-related judicial review: the sensitivity of parental contact does not create an automatic exception to section 169. The judgment also recognises that sensitivity operates on both sides, including the interests of the child and the parent seeking a lawful hearing.

For costs practice: the decision supports practical, proportionate allocation. Unsuccessful but cost-neutral pleaded relief need not reduce recovery, while identifiable unnecessary expenditure can be excluded.

The ruling should not be treated as establishing a universal costs rule for ordinary custody or access litigation. It concerns judicial review governed by the statutory civil costs framework. Nor does it require parents to abandon objectively arguable defences: the court expressly distinguished reasonable unsuccessful arguments from the exceptional full defence maintained here.

7. Complex Concepts Simplified

Judicial review
High Court supervision of whether a decision was made lawfully and fairly, rather than a fresh determination of the underlying parenting dispute.
Legitimus contradictor
A proper opposing party who can contest the application. Being joined in that capacity does not require active opposition.
Certiorari
An order setting aside a legally defective decision. It does not itself establish the truth of disputed allegations underlying that decision.
Costs follow the event
The ordinary principle that the successful party recovers litigation costs from the unsuccessful party, subject to statutory discretion.
Distributive costs order
An order allocating costs separately for particular issues, hearings or stages, rather than awarding every expense together.
Costs adjudication
The process for determining the recoverable amount where the parties cannot agree it. This is distinct from deciding who is liable.

8. Conclusion

The judgment confirms that a parent who fully opposes judicial review of a child access order participates subject to the ordinary risk of costs. Neither compulsory joinder, the personal importance of contact, nor civil legal aid creates special protection.

Its broader significance lies in the distinction between understandable personal motivation and objectively reasonable litigation conduct. Parties may defend arguable positions, but must reassess them when the record reveals fundamental procedural defects. Here, continued opposition justified awarding the successful mother her costs, while excluding expenditure caused by her own procedural error or irrelevant evidence.