Date: Feb 26, 2026

Protective Costs “Shield” for Guardians ad Litem as Legitimus Contradictor in Child-Care Judicial Review (LSRA 2015, s.168)

1) Introduction

Child and Family Agency v Guardian Ad Litem and Anor concerns an application by a court-appointed guardian ad litem (“GAL”) for a protective costs order in High Court judicial review proceedings. The underlying judicial review was brought by the Child and Family Agency (“CFA”) seeking to quash two District Court directions made in ongoing child-care proceedings concerning a fifteen-year-old child.

The District Court judge was not joined (consistent with Order 84, rule 22(2A) of the Rules of the Superior Courts), leaving the GAL—appointed under section 26 of the Child Care Act 1991—as the sole respondent and thus the practical legitimus contradictor to the CFA’s challenge.

The key issue on the costs motion was whether (and on what criteria) the High Court should grant costs protection to a respondent GAL so that she could defend the District Court’s welfare-focused orders without being deterred by personal exposure to an adverse costs order (estimated by CFA up to €25,000 + VAT), especially where the GAL’s statutory costs regime under section 26(2) was said by CFA not to extend to judicial review.

2) Summary of the Judgment

The High Court (Simons J.) granted a protective costs order shielding the GAL from any adverse costs order in the judicial review, irrespective of the ultimate outcome.
The Court held that the power to make such an order is statutory under the Legal Services Regulation Act 2015 (“LSRA 2015”), particularly section 168 (and the broader statutory costs framework, including the default rule that costs follow the event).
The Court rejected the notion that the verb “pay” in section 168 precludes a costs “shield” (i.e., “no order as to costs”) as a form of protective order.
The Court found the judicial review raised a point of law of general public importance (District Court jurisdiction under section 47 of the Child Care Act 1991 to direct welfare-related steps touching on special care referral processes), and that there was substantive merit to the GAL’s position sufficient to justify protection at an interlocutory stage.
The Court emphasised the GAL’s role as necessary contradictor in an adversarial system where the decision-maker is not a party, and held it would be anomalous if the GAL’s voice were lost because the CFA chose judicial review over appeal.
The Court left open whether the GAL could later seek costs against CFA (including under LSRA 2015) and made no finding on whether section 26 costs extend to judicial review.
Provisionally, the Court indicated the GAL should recover the costs of the protective costs application itself (subject to further submissions).

3) Analysis

A. Precedents Cited

i) The GAL’s role in child-care litigation

Health Service Executive v. D.K. [2007] IEHC 488 (MacMenamin J.) was used to articulate the classic twofold GAL function: presenting the child’s views and advising on best interests, including ensuring constitutional compliance and engaging with risk issues. Simons J. relied on this description to counter CFA’s attempt to portray the judicial review as purely “legal” and divorced from the child’s interests.

A.O'D. v. Judge O'Leary [2016] IEHC 555 (Baker J.) was particularly important because it addressed a GAL appointed under section 26 and confirmed that the GAL’s function is to represent the child in the litigation, promote the child’s interests and the interests of justice, and not merely act as a witness. This directly supported the Court’s conclusion that the GAL was entitled—indeed required—to make substantive legal submissions on jurisdiction and statutory interpretation in the judicial review.

ii) Merits of the underlying jurisdictional dispute: breadth of section 47

On the preliminary merits assessment (necessary for protective costs), the Court considered the breadth of section 47 directions. V.Q. v. Judge Horgan [2016] IEHC 631 and Child and Family Agency v. M.D. [2019] IEHC 397 were cited by the GAL to support the proposition that section 47 is “far reaching and wide”. Simons J. extracted and endorsed Baker J.’s emphasis in V.Q. v. Judge Horgan [2016] IEHC 631 that section 47 gives the District Court power to make welfare decisions subject to restraint against micromanaging day-to-day care.

J.T. v. Child and Family Agency [2025] IECA 189 was referenced to show CFA’s practical sequencing for special care orders. The Court treated this as illustrating administrative practice rather than statutory command, supporting the conclusion that the legal answer is not “clear-cut” and that there is legitimate room for disagreement—reinforcing the public-interest need for adversarial testing of the point.

iii) Source and shape of the protective costs jurisdiction after LSRA 2015

The Court treated the older common-law protective costs authorities— Village Residents Association Ltd v. An Bord Pleanála [2000] 4 IR 321 and Friends of the Curragh Environment Ltd v. An Bord Pleanála [2006] IEHC 243, [2009] 4 IR 451—as helpful only for the type of factors historically considered. The Court’s central move was to re-anchor the power in statute, identifying these older cases as no longer the “legal basis” but still informative on criteria.

The decisive modern authority was Little v. Chief Appeals Officer [2024] IESC 53. Simons J. relied on it for three propositions:

Statutory foundation: sections 168 and 169 LSRA 2015 are best viewed as “regulating and conferring” the cost-awarding power.
Default rule: costs generally follow the event, reflecting both fairness to the successful party and discipline against unmeritorious litigation.
Public-interest counterweight: the costs regime must also accommodate the objective of preventing deterrence from worthwhile litigation serving an identifiable public interest, even if ultimately unsuccessful.

iv) The “pay” problem under section 168

The judgment addressed (though not argued before Simons J.) concerns aired in Tearfund Ireland Ltd v. Commissioner of Valuation [2020] IEHC 621 and (obiter) Browne v. An Taoiseach [2023] IEHC 205 about whether section 168’s use of “pay” could exclude a “shield-only” order. Simons J. firmly rejected such a literal limitation, reasoning that a power to order payment necessarily includes the lesser power to deprive a successful party of recovery (i.e. “no order as to costs”) and that statutory interpretation presumes no major unintended disruption of pre-existing costs discretion.

v) Limits and alternatives: protective/pre-emptive costs and other regimes

J.S. v. Minister for Education [2023] IEHC 80 was distinguished: there the proceedings became moot and were reframed as general public interest; Bolger J. refused to expand protective costs in that context. Simons J. contrasted the present case as live, concrete, and rooted in the child’s immediate welfare dispute.

C.D. v. B.B. [2022] IEHC 381 (Egan J.)—a refusal of a pre-emptive costs order—was cited for the caution that such orders should be made only where no alternative mechanism exists. Simons J. used it to reinforce that the present point of law could only properly be resolved within the judicial review, and that the GAL sought only a shield, not an upfront recovery order.

vi) Child-care specific policy: avoiding deterrence of GALs

The Court relied on B. v. Child and Family Agency [2025] IESC 33 (Hogan J.) as recognising, in an analogous context, that GAL participation is so important in child-care litigation that they should not be discouraged by uncertainty that their legal representatives’ costs will be discharged. This supported the normative conclusion that costs rules should not be used (directly or indirectly) to drive the GAL from the field.

vii) Legitimus contradictor and the nature of judicial review remedies

CFA invoked Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 to argue there is no necessity for a legitimus contradictor. Simons J. rejected this reading. He treated Ballyboden as underscoring:

the High Court’s independent duty in judicial review (no true “consent certiorari”), and
the entitlement of a party with a vital interest to defend a decision, and the practical need for someone other than a judge to act as contradictor where judges are not joined.

Accordingly, Ballyboden was deployed to support—not weaken—the rationale for enabling effective contradiction, including through costs protection where necessary.

B. Legal Reasoning

i) Statutory jurisdiction to make protective costs orders

The Court’s doctrinal pivot is that protective costs orders are now to be analysed within the LSRA 2015 framework rather than as an exercise of a free-standing common-law jurisdiction. The critical interpretive step was reading section 168 as broad enough—textually (“at any stage in”) and purposively—to allow costs incidence to be determined in advance of the “event”, including by making a “no order as to costs” form of shield.

ii) Protective costs orders as an extension of Little’s balance

The Court extended the logic of Little v. Chief Appeals Officer [2024] IESC 53 from post-outcome costs decisions to pre-outcome protective orders. The key connection is practical: deterrence operates at the front end, before the merits are known, so in appropriate cases the system’s interest in the adjudication of an important question may require intervention before a party is priced out of participation.

iii) A tailored, non-exhaustive set of criteria

Simons J. formulated an illustrative list of criteria for protective costs orders, adapted from Little and earlier protective costs case law. Notably, the criteria were framed to address both: (a) justification for departing from “costs follow the event”, and (b) the special difficulty that the court does not yet know who will ultimately “win”.

The list included:

State actor involvement (usually necessary, given the State’s systemic interest and responsibility for legal clarity).
Point of law of general public importance (strength of the case for protection rises with systemic significance).
Strength of the point (must be stateable and of real substance; merits assessment must be possible by short argument).
Relative financial resources (fairness given parties’ capacity to absorb costs).
Personal interest (relevant but must be applied cautiously to avoid a standing/costs Catch-22).
Fee arrangements (more relevant to pre-emptive costs than to a shield).
Consequence of refusal (whether it would be reasonable for the party to cease participation absent protection).

iv) Why the GAL qualified (and why being a respondent did not disqualify her)

The Court held that there is no principled bar to granting protective costs to a respondent. The decisive question is whether protection is necessary to ensure the proceedings—raising a public importance question—are properly contested in an adversarial system.

Several facts made this case especially compelling:

The CFA is a State actor; the issue concerns statutory powers under the Child Care Act 1991 and thus has systemic implications.
The GAL had a credible, respectable merits position on the breadth of section 47.
The GAL was effectively the only available legitimus contradictor because the District Court judge cannot be joined under Order 84, rule 22(2A).
The GAL’s participation served Article 42A values and the “animating principle” of the Child Care Act 1991: best interests in State child-welfare proceedings.
The CFA’s attempt to leverage costs protection only if the GAL abandoned possible claims under section 26 (and its evolving offers) was treated as inappropriate to the protective costs question; the Court instead preserved the GAL’s ability to apply for costs later under the LSRA 2015 (and expressly did not decide the reach of section 26 to judicial review).

C. Impact

i) Doctrinal impact on Irish costs law

The judgment strengthens the modern view that the power to make protective costs orders is to be worked out within sections 168–169 LSRA 2015, guided by Little v. Chief Appeals Officer [2024] IESC 53.
It provides a structured, replicable (but non-exhaustive) criteria framework for protective costs orders in non-environmental public-law contexts.
It clarifies that “pay” in section 168 does not disable “shield-only” protective orders—an important interpretive point for future interlocutory costs applications.

ii) Practical impact on child-care litigation and GAL participation

The decision materially reduces the risk that GALs—particularly those appointed under section 26—will be deterred from defending District Court welfare interventions when those orders are attacked by judicial review.
It affirms the GAL’s function as a litigation participant who may make legal submissions on jurisdiction and statutory interpretation, not merely factual or “best interests” evidence.
It discourages “costs pressure” strategies that would effectively de-fund contradiction in cases where the State itself has chosen a procedural route (judicial review rather than appeal) that elevates the systemic significance of the dispute.

iii) Wider public-law implications: protecting the contradictor

Beyond child law, the judgment signals that protective costs orders may be available to respondents where they are functionally necessary to ensure an adversarial presentation of a public importance point—especially where the real decision-maker cannot be joined and the respondent’s participation is essential to the court’s ability to reach a sound determination.

4) Complex Concepts Simplified

Protective costs order: An order made before the case ends that fixes or limits future costs risk. Here, it was a “shield”: the GAL would not have to pay CFA’s costs even if she lost.
Pre-emptive costs order: A stronger form of protective order that not only shields a party but also entitles them to recover their own costs regardless of outcome. The GAL did not seek this.
Costs follow the event: The default rule that the losing party pays the winner’s legal costs. Protective costs orders are exceptional because they can deprive the eventual winner of recovery.
Legitimus contradictor: The proper opposing party who ensures the challenged decision is defended and the arguments are tested. In judicial review of lower-court orders, the judge is not normally a party, so someone else must fill that role.
Section 47 Child Care Act 1991: A broad power allowing the District Court to give directions and make orders on any question affecting the welfare of a child in care (other than special care under Part IVA). The core dispute was whether it could support directions effectively requiring CFA to progress a special-care referral process.
Pro bono vs “no foal, no fee”: “Pro bono” (strictly) means the lawyer never gets paid. “No foal, no fee” means the lawyer only gets paid if the client wins (typically through costs recovery). The Court treated the distinction as mainly relevant to pre-emptive costs requests.

5) Conclusion

This judgment’s principal significance is the recognition and careful structuring of a statutory protective costs jurisdiction under section 168 LSRA 2015 in a context where a guardian ad litem—joined as respondent because the District Court judge cannot be—must act as the legitimus contradictor to a State actor’s judicial review. Simons J. held that the public interest in resolving an important, non-clear-cut question of District Court child-welfare jurisdiction, coupled with the deterrent effect of personal costs exposure, justified granting a “shield” protective costs order.

The decision is likely to influence future applications where respondents (not only applicants) seek costs protection to ensure that litigation of systemic public importance is properly contested—particularly in sensitive child-care proceedings where constitutional and statutory imperatives require that the child’s interests and voice are effectively represented.