B v The Child & Family Agency (Approved)

Factual and Procedural Background

The Plaintiff, a minor acting through his mother and next friend, obtained a special care order under the Child Care Act 1991. When the Defendant (a State agency) failed to comply with that order because no special-care beds were available, the Plaintiff commenced plenary proceedings in January 2024 seeking a declaration that the Defendant was in contempt of court. On 18 January 2024 the High Court, on an ex parte basis, joined the guardian ad litem (GAL) as a notice party. The Defendant applied on 21 February 2024 to set aside that joinder, but the High Court refused, holding the GAL was a necessary notice party. A later High Court ruling (4 July 2024) awarded the GAL her full costs of the plenary proceedings against the Defendant. The Defendant obtained leave to appeal directly to the Supreme Court solely on the costs issue.

Legal Issues Presented

1. Whether the guardian ad litem should have been joined as a notice party in the plenary contempt proceedings.
2. Whether, and to what extent, the GAL is entitled to recover her costs of the plenary proceedings from the Defendant.

Arguments of the Parties

Defendant's Arguments

• The GAL had no legal interest in the plenary proceedings because the Plaintiff was already a party represented through his mother.
• The joinder order was made ex parte and should have been set aside.
• Section 26(2) of the Child Care Act 1991 (which obliges the agency to pay GAL costs) did not apply because the plenary proceedings were not taken under that Act.

GAL's Position (as recorded by the Court)

• The GAL facilitated the child’s voice and assisted the High Court in streamlining the proceedings.
• Having been validly joined, the GAL should not be left without costs.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Hogan (writing for the Court) held that:

• Under Order 15 rule 13, joinder in plenary actions presupposes a party has a legal interest as plaintiff or defendant; unlike Order 84, it does not expressly cater for notice parties.
• Even if Order 84’s more generous notice-party provisions were applied by analogy, the GAL’s joinder was unnecessary because the Plaintiff was already before the court and adequately represented.
• Section 26(4) of the Child Care Act 1991 provides that a GAL’s appointment ceases once the child becomes a party; by analogy, the GAL’s role in the plenary action should have been minimal.
• Nevertheless, practical realities could not be ignored: the GAL had in fact been joined and could reasonably rely on that order when incurring costs.
• Courts must balance three considerations: (1) avoiding duplicative public expenditure; (2) not discouraging GAL participation in appropriate cases; and (3) recognising the unappealed joinder order.
• In light of those factors, it was fair to allow the GAL one day’s costs in the High Court—reflecting her initial, limited utility—while disallowing the remainder and all appellate costs.

Holding and Implications

Appeal ALLOWED IN PART; costs order varied.

The GAL is awarded only one day’s costs in the High Court. No further costs are recoverable by the GAL in the High Court proceedings or on the appeal. The decision underscores that notice-party joinder in plenary actions will be narrowly confined and that public bodies should not face duplicative costs where a child is already represented. No new substantive precedent on joinder was set, but the judgment provides guidance on costs discretion in atypical notice-party scenarios.