Relocation as Welfare Evaluation: “Entirely Successful” (s.169 LSRA 2015) Not Read as Win/Lose; Default No-Costs Approach in Child-Centred Family Proceedings

1. Introduction

This judgment concerns costs following a substantive family-law decision on a child relocation application. In the underlying proceedings, the court decided it was in the best interests of the children to remain in the West “at this time” (the father’s preferred outcome) rather than relocate to Dublin with the mother (the mother’s preferred outcome).

After succeeding in resisting relocation, Mr D sought an award of costs, arguing that: (i) the case was civil proceedings, (ii) the decision presented a binary choice (stay or go), (iii) he was entirely successful, and (iv) s.169 of the Legal Services Regulation Act 2015 therefore entitled him to costs. The decisive issue became whether a welfare-based relocation decision can properly be characterised as producing an “entirely successful” party in the statutory sense, and if not, how costs should be approached in the family context.

2. Summary of the Judgment

Barrett J made no order as to costs.

The court held that the relocation application was not a straightforward binary dispute for costs purposes. The judge emphasised that:

• the judicial function was evaluative (a nuanced welfare assessment), not a determination of which party’s proposition was “correct”;
• the outcome was time-specific and did not foreclose a future relocation application; and
• it was artificial to identify a single “winner” given the court was selecting the arrangement that best promoted the children’s welfare “at this time”.

On that basis, Mr D was not “entirely successful” within s.169(1), so the statutory entitlement to costs did not arise. In any event, applying established family-law costs principles, the court would still have exercised discretion to make no costs order.

3. Analysis

3.1 Precedents Cited

The central authority relied upon for the family-law approach to costs was the Court of Appeal decision in D.K. v. P.I.K. [2023] IECA 7. Barrett J treated that judgment as providing a structured statement of principles governing costs in family proceedings, including:

• costs in family law are not to be treated as compensation for wrongdoing, but assessed having regard to both parties’ interests;
• family litigation commonly concerns a shared pool of assets, from which both future provision and costs must be met;
• the usual civil rule that costs follow the event does not apply automatically;
• the court must consider the practical effect of a costs order, including whether it would impair a party’s ability to participate in ongoing or future proceedings and thus impede access to justice;
• a normative position exists (attributed to Supreme Court jurisprudence in the cited passage) that generally no order as to costs is appropriate in family law;
• exception-based approaches (including reference to the “Veolia principles”) may be relevant where there is clear misconduct or unmeritorious conduct, but otherwise the default family approach applies.

Notably, D.K. v. P.I.K. [2023] IECA 7 did not merely “inform” the discretion: Barrett J operationalised it by distilling the principles into a practical set of questions to apply to the facts.

3.2 Legal Reasoning

(a) The “binary” characterisation: a necessary step for s.169(1)

The judgment’s first move is analytical: it interrogates Mr D’s claim that the relocation application was a binary dispute (stay versus go). Barrett J explicitly set out competing factors for and against a binary characterisation (a table of five factors each way), before concluding the matter was not “straightforwardly” binary for costs purposes.

The judge then identifies three “determinative” considerations:

• Evaluative not determinative function: the court’s task was not to decide which party’s asserted right/claim should prevail, but to balance welfare considerations and choose what best served the children.
• Time-specific outcome: “at this time” signals contingency, undermining any claim to final victory.
• No single successful party: the order aligning with one party’s preference does not equate to that party’s “success” where the court’s role is welfare selection rather than adversarial adjudication.

(b) The statutory gateway: s.169(1) and “entirely successful”

Barrett J treats s.169(1) as posing a sequence: first, determine whether any party was “entirely successful” in civil proceedings; only then does an entitlement to costs arise (subject to the “unless the court orders otherwise” discretion).

The judgment’s crucial statutory interpretation point is that the concept of “entirely successful” presupposes an adjudicative setting involving competing claims/rights. A best-interests relocation decision, by contrast, is framed as a welfare evaluation where the “result” is the court’s own assessment rather than a vindication of one case and rejection of the other.

Therefore, even though the order coincided with Mr D’s preferred outcome, the court held:

• Mr D could not properly be described as “entirely successful” under s.169(1); and
• the proceedings did not yield a clear successful/unsuccessful party distinction.

On that reasoning, the s.169 entitlement never crystallised. This is a significant move: it prevents s.169 from mechanically importing a costs-follow-the-event logic into child welfare litigation where “the event” is not a conventional adversarial success.

(c) Structured discretion even outside s.169: the family-law costs framework

The court further held that, even if it were wrong on s.169’s threshold, it would still make no order as to costs by applying the principles articulated in D.K. v. P.I.K. [2023] IECA 7. Barrett J distilled those principles into five practical questions and applied them to the facts:

1. Shared asset pool/future provision: a costs order diverts resources affecting both parties rather than compensating wrongdoing.
2. Ability to participate in future proceedings: an adverse costs order (particularly against Ms D) could prejudice future participation, especially given the time-specific nature of relocation decisions.
3. Win/lose fit: treating welfare proceedings as producing a winner/loser mischaracterises the judicial task.
4. Misconduct/unmeritorious conduct: none found; even some evidential weaknesses raised in good faith were seen as part of the welfare-assessment process.
5. Holistic justice (equity, compassion, welfare): these considerations collectively pointed against any costs order.

This part of the judgment is as important as the statutory threshold analysis: it shows how a court can translate broad appellate guidance into an auditable, step-by-step costs determination in child-focused family litigation.

3.3 Impact

• Constraining s.169 in welfare cases: the decision signals that s.169(1) will not automatically treat a parent as “entirely successful” merely because the court makes the order they sought, where the underlying exercise is best-interests evaluation.
• Reducing adversarial incentives: by refusing to frame relocation outcomes as winner/loser for costs, the judgment may discourage tactical costs applications that would otherwise exacerbate conflict in parenting disputes.
• Access to justice protection: the emphasis on “chilling effects” and future participation underscores that costs decisions can shape parties’ capacity to return to court where children’s welfare evolves over time.
• Operational template: the five-question framework provides a replicable method for first-instance courts handling costs after welfare determinations, improving predictability and transparency.

4. Complex Concepts Simplified

• “No order as to costs”: each party bears their own legal costs; neither pays the other.
• “Binary” dispute: a case where the court is essentially choosing between two mutually exclusive outcomes in a way that clearly identifies a winner and a loser (typical of many civil claims).
• Evaluative vs determinative: “determinative” implies deciding who is right on a claim/right; “evaluative” implies weighing multiple factors to select the best option (here, for the children).
• “Entirely successful” (s.169(1)): a statutory threshold suggesting total success in the litigation; the court held this label does not fit easily where the decision is a welfare selection rather than adjudication of competing rights.
• Time-specific welfare decision: a ruling based on present circumstances that may change; it does not necessarily settle the issue permanently.
• Chilling effect: where the risk of paying costs discourages a party from bringing or defending future applications—even where issues of child welfare may justify court oversight.
• Interlocutory applications: interim steps within ongoing proceedings (though the present judgment concerns costs following a substantive relocation decision, it adopts the wider family-law sensitivity to ongoing procedural contexts).

5. Conclusion

D v D [No. 2] strengthens a child-centred approach to costs by refusing to treat welfare-based relocation litigation as a simple win/lose contest. Barrett J held that where the court’s role is a nuanced, time-specific best-interests evaluation, the statutory concept of an “entirely successful” party under s.169(1) may not arise at all. Even beyond that statutory gateway, the decision exemplifies a principled family-law costs discretion—guided by D.K. v. P.I.K. [2023] IECA 7—that prioritises fairness, the preservation of shared resources, continued access to justice, and ultimately the welfare context in which such disputes are decided.