The motions were not heard or determined and the substance of the issues was not ventilated in Court by the parties. Each GAL decided for good reason that it was no longer necessary to pursue the motions. In all of the circumstances the Court considers that the justice of the situation requires that it consolidate both motions in each case and that they be treated as one in so far as costs and any adjudication of costs are concerned.
The CFA has referred to the helpful decisions in Cunningham v The President of the Circuit Court [2012] IESC 39 and in Hughes v The Revenue Commissioners [2021] IECA 5 . While these decisions arose in circumstances and litigation very different to these two cases they are of assistance as they set out the law on the issue of costs in moot cases. The continuum involved in child care proceedings and the importance of a focus on the outcome illustrates some difficulty in fitting the two cases the Court is dealing with neatly into the category of proceedings which have become moot due to entirely external events, on the one hand, or due to the unilateral action of one of the parties, on the other hand. In these two cases the objective of each GAL was to get each child a bed. The motions issued because the CFA was not giving effect to the special care orders and was not complying with its statutory duties. The motions became redundant or moot when this changed and beds were provided to both children. The CFA provided the beds and its actions in doing so meant that the motions did not need to proceed. While the CFA was free to exercise its powers in accordance with its legal obligations and did so in providing the beds to the two children, this represented a seismic shift in its position. If it had done so when the orders were made or before the motions issued then the motions would not have been necessary.
The Court must also be careful to avoid treating the legal position as illustrated in the above cases, and referred to in them, as a set of fixed or rigid rules. The case law emphasises that the Court has an over-riding discretion in relation to the awarding of costs. The framework provided in the decisions is a guide to the exercise of the Court's discretion when dealing with costs - and should not be applied inflexibly or in an excessively prescriptive manner.
The CFA in its written submissions states that " Since the event in both cases has gone the way of the Agency, it should not be necessary to address the frailties in both motions but should it be necessary counsel will explain to the Court why both motions were on a substantive basis bound to fail". On this it is necessary to say ; -
(a) The Court gave adequate time for the preparation and circulation of written submissions. The inclusion of such a paragraph is unacceptable as it is unfair to the other parties preparing for the hearing - and lacks the precision required and expected.
(b) The assertion that the event in both cases has gone the way of the Agency is an opinion not shared by the Court and is over simplistic. As already pointed out the GALs objective in each case was to agitate for a bed for each child until a bed was provided.
(c) The CFA was, when the motions were issued, not giving effect to the special care order in each case. It is not known what the Court would have decided if the motions did proceed to hearing. It is the position that the Court would have expected an explanation for the special care orders not being given effect in each case. Whether or not the CFA would have been successful in defending the motions in each case is an unanswered question - but the fact that the special care orders were not given effect when they should have been is clear. Both children should have been received into a special care unit once the order was made and as soon as they were located. To assert that the motions were bound to fail is an argument which is untested.
(d) The " frailties in both motions " referred to would likely have generated considerable argument in the event of the motions having proceeded. Perhaps the CFA arguments would have prevailed - perhaps not. Perhaps the CFA would have been partially but not fully successful.
(e) It seems to the Court that a debate as to the likely outcome and merits of the motions is neither wise nor warranted - as the focus should really be on the cause of the mootness.
(f) The actual circumstances in each case are such that the issue remains one to be decided by reference to the requirements of justice.
On behalf of the GAL in each case it is asserted that the allocation of the beds to the children in which contempt motions were being brought was not an occasion of coincidence or happenstance .
On this the evidence of the CFA in the affidavit of Mr. Y sworn on 8/5/24 is that the fact that a contempt motion or motions had been issued in the proceedings or in any other proceedings did not play any role whatsoever in the allocation of the beds. This is the sworn evidence before the Court on this specific issue. Notwithstanding the coincidence referred to by each GAL the Court will proceed on the basis of this sworn evidence.
The matter does not end there. The Court must have regard to the particular nature and circumstances of each case. It is worthwhile reflecting on certain aspects common to each case;-
(a) These children were in such a vulnerable and dangerous place in life that they both needed a bed in special care - and the CFA applied for special care orders for that reason.
(b) The CFA did not give effect to the orders.
(c) The reason for non-effect appears to be or is said to be staffing issues in the Special Care Units - and they are long standing. While no affidavit on the substantive issue was filed in these proceedings by the CFA this difficulty concerning staffing has been mentioned many times by the CFA in the Special Care List.
(d) The situation of each child continued to deteriorate while the order ran with no effect. It is clear that both children suffered harm as a result of no bed being provided to them in special care when it should have been.
(e) The CFA offered no light at the end of the tunnel in terms of bed availability - thus compelling each GAL to act decisively - by pursuing a remedy which appeared to be worthwhile pursuing - and which was probably the only remedy in sight.
(f) Each GAL was entitled to feel duty bound to so act.
(g) Each child was entitled to have a fearless advocate.
(h) Each child needed and needs a fearless advocate.
(i) The CFA was entitled to decide how to defend the motions. However, the Court constantly requests a level of collaboration between all participants in the Special Care List. This is essential when all should have the one objective - safeguarding the welfare of children in significant need. The Court reminded the parties at an early stage of this need and has frequently emphasised the desire for a "kind hands - kind words" approach by all in the interests of the welfare of the vulnerable children involved. The Court considers that the CFA did not give adequate weight to this need in responding to the complaints, concerns, and motions of the guardians. The Court is not blind to the fact that the CFA had to take a serious view of the "Contempt applications" but doing so surely did not eliminate the option of a more conciliatory and measured approach than that adopted - particularly when each GAL had been very clear in the objective being pursued. A consequence of the highly combative defence strategy was that both sides became polarised and any opportunity for desirable collaboration was lost. Another was the delay which might and probably would have been avoided if the substance of the complaints and escalating concerns were addressed at an early stage by communication/correspondence and affidavit evidence. The Court has been left without any good explanation as to why the substance of the complaints and concerns - no bed being made available for each child - was not addressed early on in the motion history in each case in circumstances where the CFA has in several other cases and instances aired its explanation to the Court for the beds not being available.
(j) Each GAL acted bona fide and responsibly throughout.
(k) Parity or Equality of arms is a consideration in the Special Care list. When dealing with extremely vulnerable children - often from chaotic family backgrounds, from impoverished homes and abounding neglect - a Court should be slow to hinder or discourage the existence and availability of any scaffolding that may assist the child. The resulting cost is no more than a fair and just effort by a civilised society to give a chance to children born into homes where there is none. The stuff of the Special Care List is largely helpless traumatised children often with no one to speak up for them and who are usually slow to trust anyone.
It should be acknowledged that not all of the children in the Special Care List are from dysfunctional backgrounds although the majority usually are.
And in any event, all of these vulnerable children deserve every chance that can be provided to them - including the availability of a GAL willing and able to act tenaciously in their best interests. A GAL so acting should not have an order for costs made against him/her. On the contrary, a GAL so acting should have his/her costs.
(l) This Court would be leaving something that needs to be said unsaid if it did not compliment the extra-ordinary work of the CFA staff in the Special Care Units in the state - Coovagh House, Ballydowd and Crannóg Nua. As the parties are aware the Court makes a point of visiting these Special Care Units and the children in them who wish to meet. Children in need of special care who get it almost always benefit from it - and at least are normally kept safe. Children in respect of whom special care orders are made which orders are not given effect immediately are suffering as a result. The Court cannot comprehend the view that the efforts of the guardians in each of these cases to alleviate that suffering and to help these children should be criticised or in some way penalised.
(m) It is also true that Section 26 of the 1991 Act pursuant to which the guardian was appointed in these proceedings makes no provision for the award of costs against a Court appointed guardian. The section allows for the payment of those costs by the Agency [s.26(2)] or on application by the Agency for those costs to be paid by another party to the proceedings [s.26(3)]. It is true that the situation in these cases is probably something never contemplated by the legislature in the sense of action being taken by a guardian by reason of the CFA not giving effect to a special care order. Yet, there is some force in the submission that it must be the case that the legislative intention in drafting the section was to prevent the scenario arising here - whereby the Agency might seek an award of costs against a Court appointed guardian and thus potentially grossly inhibit the role of such a Court appointed professional in cases such as these. It might however be conceivable, albeit unlikely, that a case would arise where a GAL appointed for a child in respect of whom a special care order is made might expose himself or herself to an order for costs against him/her [e.g. a person so appointed after completely and deliberately misrepresenting his/her qualifications and experience - or perhaps a GAL making wholly unmeritorious applications or duplicating applications/proceedings]. Whatever of such possibilities, these are not such cases.
The position of the Child and Family Agency is that it is seeking an order for costs in each case against the Court appointed guardian of the child - each of whom the Court is satisfied acted properly and professionally.
The GAL submits that " this has a chilling effect. The message that this sends to persons seeking to vindicate the rights of children suffering real and actual harm as a consequence of the Agency's inaction is that they may be subject to sizeable financial risk. This entirely and unequivocally serves to fetter the discretion of the independent voice of the children in these cases, or indeed parents who may wish to bring about the same outcome for their very vulnerable children assessed by the very same Agency as being in need of special care."
It is obviously of great concern to the Court when the CFA does not give effect to special care orders. Of concern also is the CFA decision to seek an order for costs against each GAL in the circumstances we are dealing with here. That decision suggests a fundamental and ominous failure to realise, or worse perhaps a decision to ignore, how completely unacceptable the CFA failure to give effect to special care orders actually is - this in a country where the rule of law is expected to prevail and when the life, health, safety, development and welfare of children is at risk.
The Court will not award costs against the guardians. In all of the circumstances the Court will instead make an order for costs in favour of each GAL as doing so is appropriate and just for all of the reasons outlined above. The Court will also direct that the two motions in each case be consolidated and treated as one and that the costs be adjudicated in default of agreement.