Restricting GAL Cost Entitlements and Joinder in Plenary Proceedings – A Commentary on B v Child & Family Agency [2025] IESC 33

1. Introduction

B v Child & Family Agency (Approved) ([2025] IESC 33) is the Supreme Court of Ireland’s second judgment in a line of related litigation involving a minor (“B”), his guardian ad litem (“GAL”), and the Child and Family Agency (“CFA”). While the first judgment confirmed that a contempt application could be brought against a State agency via plenary summons without seeking penal sanctions, the present decision grapples with the narrower but practically crucial question: who should bear the GAL’s legal costs in those plenary contempt proceedings?

The outcome introduces a significant clarification: where a child is already a party to plenary proceedings (suing through a next friend), a GAL should not be joined as a mere notice party and, even if joined, is not automatically entitled to a full order for costs. The Court awards the GAL only one day’s costs, emphasising the need to avoid duplicative expenditure of public funds.

2. Summary of the Judgment

The High Court had joined the GAL to B’s plenary contempt action and later awarded her full costs against the CFA.
The Supreme Court (Hogan J. delivering judgment) holds that:
- The joinder was wrong in law; Order 15 rule 13 RSC and the analogy to Order 84 do not justify adding a GAL as a non-plaintiff/defendant notice party when the child is already represented.
- Section 26(4) Child Care Act 1991, though not directly applicable to plenary actions, signals that a GAL’s role ends once the child becomes a party.
- Nonetheless, because the joinder order was never appealed, the GAL was entitled to rely on it. Equity demands some cost recovery.
- Fair balance is struck by granting the GAL one day’s High Court costs and no further costs in either the High Court or Supreme Court appeals.

3. Analysis

3.1 Precedents Cited

Dowling v Minister for Finance [2013] IESC 58 – Fennelly J. drew an analogy between certain statutory applications and judicial review, explaining the notice-party framework in Order 84 RSC. The Supreme Court here uses Dowling to illustrate that more liberal joinder rules exist in public-law contexts—but then distinguishes plenary actions.
BUPA v Health Insurance Authority [2006] 1 IR 201 – Keane J. found a direct financial interest sufficient for notice-party status. Hogan J. contrasts BUPA with the present case, stressing that the GAL had no comparable interest.
AOD v O’Leary [2016] IEHC 757 – Baker J. observed that costs disputes between notice parties sit awkwardly within ordinary costs rules. Cited to support the view that conventional “event-based” cost principles do not neatly apply.

3.2 Legal Reasoning

Status of the GAL under the Child Care Act 1991 Sections 26(1)–(4) allow for a GAL where the child is not a party; subsection (4) terminates that appointment once the child joins the proceedings. Although the contempt action was not “proceedings under Part IV,” Hogan J. applies the policy behind s.26(4) by analogy: duplication of representation is unnecessary.
Rules of Court on Joinder • Order 15 rule 13 RSC governs joinder in plenary actions, envisaging parties to be added as plaintiffs or defendants with a “clear legal interest.” • Notice-party provisions exist in Order 84 (judicial review); yet those generous rules do not transfer automatically to plenary proceedings. • Hence the GAL’s joinder could not be justified under either route.
Cost-control Imperative Public funds finance both the CFA and GAL schemes. Awarding two parallel sets of costs for the same child would be “extravagant or improvident.” This fiscal concern, blended with equitable considerations, drives the limited one-day cost order.
Equitable Reliance Principle Despite the wrongful joinder, the GAL was entitled to act on a subsisting High Court order that was never appealed. Complete denial of costs would be unfair; limited recovery is just.

3.3 Potential Impact

Joinder Practice Courts are now cautioned against routinely joining GALs to plenary, contempt or other “follow-on” civil actions once the child already sues through a next friend.
Costs Jurisprudence The decision introduces a nuanced approach—partial, time-limited costs orders—in atypical public-law family-welfare disputes, filling a gap not addressed by the Legal Services Regulation Act 2015.
Child Care Litigation Strategy Practitioners must reassess whether GAL participation adds real value beyond the statutory childcare proceedings; if not, costs exposure looms.
Public Expenditure State bodies can rely on this precedent to resist duplicative cost claims, reinforcing accountability in the deployment of scarce child-protection funds.

4. Complex Concepts Simplified

Guardian ad litem (GAL) – An independent person appointed by a court to represent a child’s best interests in litigation where the child is not a direct party.
Notice Party – A party served with proceedings because they may be “directly affected,” but who is neither plaintiff nor defendant. They may participate but are not the primary disputants.
Plenary Proceedings vs. Judicial Review – Plenary actions involve a full civil trial (pleadings, discovery, oral evidence). Judicial review is a summary public-law procedure focusing on the lawfulness of decisions.
Order 15 rule 13 RSC – Allows the High Court to add persons as plaintiffs or defendants when necessary for “effectual” adjudication.
Section 26 Child Care Act 1991 – Governs appointment, role and cost payment of GALs in childcare proceedings. Subsection (4) ends the GAL’s role once the child becomes a party.

5. Conclusion

B v Child & Family Agency [2025] IESC 33 crystallises a new principle: a GAL has no automatic right to be joined—or to full costs—in plenary litigation where the child is already a party; any joinder must be both necessary and proportionate, and cost awards must avoid duplication of public expenditure.

The ruling synthesises statutory child-care provisions and procedural rules, ring-fencing the GAL function to its proper sphere while protecting limited State resources. Going forward, litigants and courts alike must scrutinise the utility of adding GALs outside the statutory framework, mindful that only demonstrably necessary participation will unlock cost recovery.