The High Court has held that a parent who participates in special care proceedings with the benefit of legal aid is entitled to seek, and have determined, an application for costs in the same manner as any other litigant.
The decision arose from special care proceedings in which the Child and Family Agency obtained an order under section 23 of the Child Care Act 1991 committing a child to special care. At the conclusion of the proceedings, costs were awarded to the child’s father and the guardian ad litem. The child’s mother, who had participated throughout as a respondent and was legally aided, also applied for her costs. Her application raised an issue with an existing practice of declining to award costs to respondents in receipt of legal aid.
Mr Justice John Jordan rejected the proposition that receipt of legal aid disentitles a party from seeking costs. He held that, under section 33 of the Civil Legal Aid Act 1995, the court must adjudicate on an application for costs by a legally aided party in the same way as it would for any other party. The fact that a respondent is legally aided does not remove the court’s discretion to make an appropriate costs order.
The judge emphasised that special care proceedings are complex, engage the constitutional rights of the child and parents, and often require parents to participate with the benefit of expert legal representation. He noted that the mother was not merely a notice party but had been named and treated as a respondent from the outset, had participated fully and appropriately, and had assisted the court in determining issues affecting her child’s welfare and best interests.
Mr Justice Jordan further observed that while special care proceedings do not involve a clear “event” or successful party in the conventional civil litigation sense, that does not preclude the making of costs orders. Parents who engage responsibly and constructively in such proceedings are entitled to apply for their costs, regardless of whether they are legally aided.
Accordingly, the High Court awarded the mother her costs, including reserved costs, to be adjudicated in default of agreement.