Costs awarded where legal aid had not been authorised, exceptional circumstances cited – 2023vol1#55

A judge in a provincial town awarded a solicitor her costs for representing a mother at short notice, in the hearing of an application for an interim order, where legal aid had not been authorised.

The application for costs was made by the solicitor for the mother at the end of the interim care order hearing. The interim care order had been made and the application for costs was opposed by the solicitor for the Child and Family Agency (CFA). The judge adjourned the costs application and had asked for submissions from both solicitors. (Submissions are papers admitted to court for the judge to read which outline the respective positions of each party).

The mother’s solicitor had filed her submissions in the court late and the CFA had not responded. Both solicitors made oral arguments in court. Both referred to a case called Child and Family Agency (formerly Health Service Executive) v O.A. [2015] IESC 52 known as the ‘OA case’, a Supreme Court decision that stated a District Court should not make an award of costs to the solicitors of parents in childcare proceedings unless there are exceptional circumstances for doing so.

The solicitor for the mother.

The solicitor for the mother said that whilst the ‘OA case’ stated costs should not be awarded, in this particular case exceptional circumstances did exist. She said the mother had made an application for legal aid, but that form had not been submitted to the Legal Aid Board by the social worker. The mother had extreme difficulties of criminality, addiction, dire familial circumstances, little if any support network and the one person who was of help to her died during the course of the proceedings. The solicitor said that after the first interim care order hearing a new legal aid certificate was issued and she [the mother’s solicitor] was only claiming for her costs of that first interim care order application.

The solicitor for the CFA

The solicitor for the CFA said that he opposed the application for costs and that the ‘OA case’ stated that costs should not be awarded. He said there was no authority that costs could be awarded, and costs had never been awarded in this particular district before. He said when the interim care order had been heard, a new legal certificate was submitted, and the mother’s solicitor had received that certificate.

He said it was not possible to award costs where only an interim care order was heard, and the full care order hearing had not yet been heard. He said that the submissions made by the solicitor’s mother had been received late and he had not had time to reply.

The judge said she would be happy to adjourn the application if he [the CFA solicitor] would like more time to reply to the submissions of the mother. The CFA solicitor said that his submissions would be the same as what he already had told the court, which was the Supreme Court authority stated that costs should not be awarded, and the District Court was obliged to follow the Supreme Court’s reasoning and decision.

The decision

The judge noted that the CFA solicitor had not looked for extra time to submit submissions, so she made her decision. She said she had reviewed the ‘OA case’ with care and could distinguish this case on the following grounds.

The mother was the sole guardian, she had a more than significant issue of addiction, there were significant criminal issues, she was homeless, and her own mother, who was the one and only support to her, had recently died. The engagement of the mother with the Child and Family Agency (CFA) was poor, however, there was evidence that when the mother did engage with the CFA access with her children was good. The solicitor had made every effort to engage the mother and all these combined would give rise to the exceptional circumstances that the ‘OA case’ permitted.

The judge made an award for costs for the mother’s solicitor.