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Child and Family Agency v Guardian Ad Litem and Anor (Approved)
Smart Summary
Factual and Procedural Background
This judgment, delivered by Judge Simons on 25 February 2026, concerns an application for a protective costs order made in judicial review proceedings. Company A (the applicant) sought to set aside two District Court orders (dated 14 November 2025 and 9 December 2025) directing Company A to prepare and submit a special care referral in respect of a fifteen‑year‑old referred to in the opinion as "the child." A social worker was appointed as guardian ad litem under section 26 of the Child Care Act 1991; the guardian ad litem is the sole respondent in the judicial review and the child’s mother was joined as a notice party. Company A obtained leave for judicial review on 18 December 2025. The guardian ad litem filed a motion for a protective costs order on 16 January 2026; that motion was heard on 11 February 2026 and judgment was reserved.
Procedural and factual highlights included: a prior High Court special care order granted April 2024 (expired April 2025); residential placement March–June 2025 followed by placement with the mother; costs estimates exchanged under Order 99, rule 7 showed the guardian ad litem’s legal costs estimated at €63,000 (plus VAT) and Company A’s maximum recoverable costs claim against the guardian ad litem at €25,000 (plus VAT). Company A made conditional offers during the hearing which were relevant to the court’s assessment of costs.
Legal Issues Presented
- Whether the High Court has jurisdiction under the Legal Services Regulation Act 2015 (notably section 168) to make a protective costs order (including shielding a party from an adverse costs order made before determination of the "event").
- Whether a guardian ad litem joined as respondent and acting as the legitimus contradictor in judicial review proceedings against a State actor may properly obtain a protective costs order.
- Whether, on a provisional assessment, the District Court’s orders pursuant to section 47 of the Child Care Act 1991 were within the District Court’s jurisdiction (the substantive merits question informing the protective costs exercise).
Arguments of the Parties
Applicant (Company A) Arguments
- The District Court lacked a function to make directions that amount to invoking the special care order procedure under Part IVA; Company A's entitlement to apply for a special care order is a distinct statutory jurisdiction for the High Court.
- The guardian ad litem is not required as a legitimus contradictor to contest questions of statutory interpretation and is effectively expressing personal views rather than the child’s views.
- Company A initially declined unconditional costs protection and offered conditional undertakings: not to seek costs against the guardian if the guardian reciprocated; later offered not to seek costs if the guardian did not pursue costs under section 26 of the Child Care Act 1991, leaving open other statutory routes.
Respondent (Guardian ad litem) Arguments
- Section 47 is broadly drawn and empowers the District Court to make wide directions affecting the welfare of a child; the District Court’s orders could properly sit within that power.
- As the legitimus contradictor, the guardian ad litem is entitled to participate and make legal submissions advancing the child’s best interests and the interests of justice.
- The guardian sought a protective costs order shielding her from an adverse costs order (not a pre‑emptive order to recover costs irrespective of outcome); she maintained a respectable case on the merits and would be deterred from participating further without protection.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Health Service Executive v. D.K. [2007] IEHC 488 |
Description of the dual function and duties of a guardian ad litem (placing the child's views before the court; giving views as to best interests; ensuring constitutional rights of minor). |
Used to explain and confirm the proper scope of a guardian ad litem's role, as relevant to whether the guardian may make legal submissions in the judicial review. |
| A.O'D. v. Judge O'Leary [2016] IEHC 555 |
Held that the guardian ad litem represents the child and promotes the child's interests and the interests of justice; should take role beyond being a witness. |
Cited to support the proposition that a guardian ad litem may participate substantively and make legal submissions in court proceedings. |
| V.Q. v. Judge Horgan [2016] IEHC 631 |
Characterisation of the far‑reaching jurisdiction of the District Court under section 47 of the Child Care Act 1991. |
Relied upon to show that section 47 gives broad powers to the District Court and to assist provisional assessment of the merits of the guardian’s position. |
| Child and Family Agency v. M.D. [2019] IEHC 397 |
Authority cited in support of a broad reading of the District Court's powers under section 47. |
Referenced as part of the line of authority supporting a broad interpretation of section 47. |
| J.T. v. Child and Family Agency [2025] IECA 189 |
Practical account of Company A's sequencing in decision‑making on special care orders. |
Used as an example of Company A’s established practices when assessing the scope for disagreement about procedure under the Act. |
| Village Residents Association Ltd v. An Bord Pleanála [2000] 4 IR 321 |
One of the leading authorities on criteria for protective costs orders (public importance, public interest, no private interest, fairness given resources, likelihood of discontinuance). |
Identified as part of the precedent line that informed the criteria adapted for protective costs orders under the statutory regime. |
| Friends of the Curragh Environment Ltd v. An Bord Pleanála [2006] IEHC 243, [2009] 4 IR 451 |
Further statement of the principal criteria relevant to protective costs orders. |
Relied on, together with Village Residents, as formative authorities describing factors relevant to protective costs orders. |
| Little v. Chief Appeals Officer [2024] IESC 53 |
Clarified that sections 168 and 169 of the Legal Services Regulation Act 2015 regulate and confer a costs awarding power; balanced costs‑following‑the‑event with protection for public interest litigation. |
Principal modern authority used to analyse statutory basis for protective costs orders and to frame criteria and balancing considerations under the 2015 Act. |
| Tearfund Ireland Ltd v. Commissioner of Valuation [2020] IEHC 621 |
Discussed whether the verb "pay" in section 168 precludes protective costs orders. |
Referred to as part of the discussion on textual interpretation of section 168; court noted the issue arose in that case. |
| Browne v. An Taoiseach [2023] IEHC 205 |
Obiter discussion on the same issue as Tearfund regarding the verb "pay" in section 168. |
Noted in relation to the textual argument about whether section 168 allows protective costs orders. |
| B. v. Child and Family Agency [2025] IESC 33 |
Recognition at Supreme Court level that guardians ad litem must not be discouraged from participating by fear that their legal representatives will not have costs discharged. |
Applied by analogy to support the conclusion that guardians should not be deterred and that costs protection may be appropriate. |
| J.S. v. Minister for Education [2023] IEHC 80 |
Held nothing supported expanding protective costs jurisdiction to proceedings commenced for individual benefit that later became moot and only hypothetically beneficial to others. |
Distinguished on the facts; the court held the present case was live and not hypothetical. |
| C.D. v. B.B. [2022] IEHC 381 |
Refusal of a pre‑emptive costs order; court emphasised alternatives and narrowness of pre‑emptive orders. |
Distinguished: court noted the present case sought only a protective (shield) order, not a pre‑emptive order, and that alternatives in C.D. were not present here. |
| Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 |
Confirmed entitlement of a party with a vital interest to defend judicial review proceedings and emphasised the High Court’s role as ultimate arbiter; recognised need for a legitimus contradictor in certain challenges. |
Used to reject Company A’s submission that there is no value in a legitimus contradictor; court treated the authority as supporting the guardian's role to defend. |
Court's Reasoning and Analysis
The court began by identifying the statutory source of the costs power in sections 168 and 169 of the Legal Services Regulation Act 2015 and proceeded with a textual and purposive analysis. The court held that the wording of section 168 ("at any stage in") permits interim or advance costs orders and that the verb "pay" does not preclude making an order that effectively leaves each party to bear its own costs (the lesser included step of denying recovery of costs).
The court adapted principles from Little v. Chief Appeals Officer and the earlier protective costs jurisprudence to formulate an illustrative, non‑exhaustive list of criteria for protective costs orders, including: (1) involvement of a State actor; (2) a point of law of general public importance; (3) the strength of the point on a provisional assessment; (4) relative financial resources; (5) whether the party has a personal interest; (6) fee arrangements with lawyers; and (7) consequences of refusing protection.
Applying those criteria to the facts, the court concluded that: the proceedings raise a point of law of general public importance (scope of District Court powers under section 47); there is a respectable/substantive argument supporting the guardian's position; the financial relationship is asymmetrical (section 26 obliges Company A to meet guardian's costs in the District Court context) and Company A can better bear costs risk; the guardian is acting in a professional capacity without a disqualifying personal interest; and, absent protection, the guardian would likely be deterred from participation, undermining adversarial resolution and the public interest. The court rejected Company A's submissions that the guardian's participation was unnecessary or merely personal opinion, and it emphasised the guardian's role as legitimus contradictor when the decision‑maker cannot be joined.
The court made a distinction between a protective costs order (a shield against an adverse order) and a pre‑emptive order (directing recovery of costs irrespective of outcome), granting only the former. The court also provisionally awarded the guardian the costs of the protective costs application itself, noting Company A's late offers.
Holding and Implications
HOLDING: The court granted a protective costs order shielding the guardian ad litem from an adverse costs order in respect of the within judicial review proceedings (i.e., no order for costs shall be made against the guardian ad litem at this stage).
Implications:
- Direct effect: The guardian ad litem is protected from exposure to an adverse costs order in the judicial review proceedings; the protection is confined to a shield (not a pre‑emptive entitlement to recover costs against Company A), and the guardian is provisionally entitled to recover the costs of the protective costs application.
- Guidance: The judgment provides an illustrative set of criteria and analytical framework for protective costs orders under the Legal Services Regulation Act 2015, which may inform future applications in analogous contexts.
- Limitations: The court expressly made no determination on whether section 26 of the Child Care Act 1991 (the statutory obligation for Company A to pay guardian costs in District Court care proceedings) extends to High Court judicial review proceedings arising out of such care proceedings.
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