High Court ruling on legal costs in childcare proceedings

On 12 April 2013, the High Court made a significant ruling which may have implications for legal costs in childcare proceedings.

In April 2011, the Health Service Executive (HSE) applied to the District Court for an emergency care order in child care proceedings. The mother of the children who were the subject of the proceedings was not present and was not represented. In May 2011, the HSE applied for an interim care order. The mother engaged a private solicitor who represented her in that hearing and in a further nine District Court hearings. Her lawyers then sought costs from the HSE in the District Court.  The District Court refused to award the mother her costs on the basis that she may have been entitled to legal aid and as such she was not entitled to costs for a private solicitor.

Before the High Court, the HSE argued that the mother’s decision to hire her own lawyers, rather than seek legal aid, in her bid to get her children back should preclude her from seeking legal costs from the HSE. The HSE argued that allowing people to seek their costs, where they were clearly eligible for legal aid but had chosen private lawyers, was contrary to public policy and was “catastrophic” for the HSE’s finances.

The High Court rejected this argument and held that:

  • the mother was entitled to choose her own lawyer;
  • she was not obliged to apply for legal aid;
  • the mother’s eligibility for legal aid, whether established or presumed, had no bearing on her entitlement to seek her costs.

Ms Justice O’Malley considered the HSE and the Attorney General’s arguments centred on the wealth of the mother and said that poor mothers have the same right as the wealthy to choose their own lawyers in childcare cases.

Click here to read an article from the Irish Times 

**Ed - after the bulletin went to press, PILA located a copy of the judgment. Please click here to view the judgment in full 

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