The costs of a case where a child had been detained under the Mental Health Act were awarded by Dublin District Court to the child’s parents and guardian ad litem against the HSE because of the exceptional circumstances of the case, involving the child’s detention.
The HSE solicitor informed the court that the child had been discharged from the specialist facility she was in and that she no longer met the criteria for being detained under Section 3(1)(a)(c) of the Mental Health Act 2001. The court was told that the child was doing very well.
When the case came before the court the previous month, the question of costs was adjourned, pending the child’s discharge. The child had now been discharged so the HSE solicitor said the costs matter could be finalised.
She said under Section 25 (13) and Section 26(2) the guardian ad litem was entitled to their costs. She referred to jurisprudence of the courts set out in the Supreme Court case of OA (CFA v OA [2015] IESC 52) and said the decision had been adopted by Judge Simms in the past in the Dublin Metropolitan District court.
In the Supreme Court, Mr Justice MacMenamin said that, in general, parents in District Court child care cases should not be granted an order awarding costs, unless distinct features were present in the cases in question. Such distinctive features were:
“(i) A conclusion that the CFA had acted capriciously, arbitrarily or unreasonably in commencing or maintaining the proceedings;
(ii) Where the outcome of the case was particularly clear and compelling;
(iii) Where a particular injustice would be visited on the parents, or another party, if they were left to bear the costs, having regard to the length and complexity of the proceedings;
(iv) In any case in which a District Court seeks to depart from the general default position, and to award costs, it is necessary to give reasons. These reasons must identify some clear feature or issue in the case which rendered the case truly exceptional. It is true all cases are distinct, but not all cases are exceptional. The reason for the distinction rendering a costs order justified must go to whether or not there was some unusual or unprecedented issue, or issues, which required determination or whether the case properly, and within jurisdiction, determined a point that had application to a range of other cases.”
The HSE solicitor said that in order to be awarded costs there had to be “exceptional circumstances” and the court was told that there had been exceptional circumstances in this case which had involved an element of detention, therefore the criteria had been met and the HSE were not contesting any costs application of the GAL.
The solicitor for the parents confirmed to the court that the parents had been worried as there had been ten previous admissions and a robust wraparound support had been necessary.
The child was now back home with a plan in place and there had been some improvement in the situation.
The judge granted the order for costs given the exceptional circumstances and the jurisprudence supporting such an order. The costs were to be measured in default of agreement.