The Child and Family Agency v D and Ors (Approved)

Factual and Procedural Background

This judgment of Judge Jordan, delivered 22 January 2026, concerns an application for costs arising from Special Care proceedings initiated by Company A under s.23 of the Child Care Act 1991 (as amended). A Special Care Order committing the Child to Company A's care and detention at Ballydowd Special Care Unit was made on 25 October 2023 and subsequently extended. At the conclusion of the proceedings the Second Named Respondent (the father) and the Guardian ad Litem applied for costs and were awarded them. The First Named Respondent (the mother) participated throughout and, although in receipt of legal aid, applied for costs. The court adjourned determination of the mother's costs to receive written submissions; the case was joined to several similar cases and was heard first to provide a ruling to govern the others.

Legal Issues Presented

1. Whether a party in receipt of legal aid (here, the First Named Respondent) is entitled to apply for and be awarded costs on the same basis as a litigant not in receipt of legal aid, and how s.33 of the Civil Legal Aid Act 1995 applies to such applications.
2. How the statutory Special Care scheme (including ss.25, 26 and s.23G of the Child Care Act 1991 and subsequent amendments) affects the court's discretion to award costs to a parent given notice of special care proceedings.
3. What weight should be given to constitutional rights (child's welfare and parent's rights) in adjudicating an application for costs in Special Care proceedings.
4. Whether any award of costs to the First Named Respondent should be limited to fees and outlays in accordance with the Legal Aid Board schedule of fees.

Arguments of the Parties

First Named Respondent's Arguments

• The fact that she was in receipt of legal aid is not relevant to her entitlement to apply for and obtain an award of costs; she should be treated the same as a litigant not in receipt of legal aid.
• Her participation vindicated the constitutional rights of the Child and her own parental rights; this supports her entitlement to costs.
• Authorities cited (including the judgment referred to as Health Service Executive v AO) support the proposition that eligibility for legal aid does not affect entitlement to costs.

Company A's Arguments

• The court should view the Civil Legal Aid Act and general costs principles in the context of the specific statutory Special Care scheme, which treats costs for a joined child or an appointed Guardian ad Litem differently (ss.25 and 26) and, after insertion of s.23G, treats parents given notice differently.
• Statutory construction of ss.25, 26 and 23G indicates an intention by the Oireachtas that parents given notice under s.23G are not automatically entitled to the beneficial costs regime applicable to a child or to a Guardian ad Litem; this should inform the exercise of the court's discretion.
• If costs are awarded to the mother, any award should be limited to fees and outlays incurred as a result of these proceedings and in accordance with the Legal Aid Board schedule of fees.

Table of Precedents Cited

Court's Reasoning and Analysis

The court assessed the application against the Civil Legal Aid Act 1995 (s.33) and the statutory Special Care scheme (ss.23G, 25 and 26 of the Child Care Act 1991 as amended). It reviewed authorities cited by both sides. The court accepted that ss.25 and 26 provide a specific costs regime for a child and for a Guardian ad Litem, and that s.23G (inserted later) draws a distinction by requiring notice to parents without providing an identical costs regime. Nevertheless, the court held that those statutory distinctions do not remove the court's general discretion to award costs to other parties.

The court found that the First Named Respondent was not merely a 'notice party' but was named and participated as a respondent from the outset; her participation vindicated constitutional rights of the Child and her parental rights. Precedent (including the decisions referenced) supported the proposition that legal aid eligibility should not, by itself, exclude a litigant from seeking costs. The court further accepted that Special Care proceedings lack a single defining 'event', but that this does not preclude awarding costs; courts retain broad discretion to make costs orders on other bases.

Having weighed the statutory text, the practice of the Special Care List, the parties' written and oral submissions, and the precedents, the court concluded the First Named Respondent had a right to seek costs and that her application should be adjudicated as if she were not in receipt of legal aid.

Holding and Implications

HOLDING: The court granted the First Named Respondent an order for her costs of the Special Care proceedings (including any reserved costs), to be adjudicated in default of agreement.

Implications:

• The direct effect is that the First Named Respondent is entitled to costs and the amount will be determined by the Legal Costs Adjudicator if the parties do not agree.
• The court declined to limit any award to fees payable under the Legal Aid Board schedule; the level of fees will be determined in the adjudication process.
• The judgment confirms the court's discretion to award costs to a parent in Special Care proceedings notwithstanding that the parent received legal aid, and it is intended to govern several joined cases; the decision is not presented as creating a new statutory rule beyond the court's exercise of discretion.

The court listed the matter for mention on 26 January 2026 to deal with any further application arising.