Friday 19 October 2018

Man who admitted fathering a child with his daughter loses costs challenge in High Court

The High Court, Dublin
The High Court, Dublin

Tim Healy

A MAN who opposed interim care orders for three children - one of whom was born to his daughter as a result of his alleged sexual abuse of her - has lost his High Court challenge to refusals to give him legal costs of the care proceedings.

The man's daughter, in interviews with the Child and Family Agency (CFA), alleged she was sexually abused by him when she was aged between 7 and 18, with sexual intercourse commencing when she was aged about 11, Mr Justice Michael White noted. 

The daughter also alleged she bore a child by her father and that other grandchildren of his were the children of her sisters.

In High Court judicial review proceedings, the man challenged separate refusals by two District Court judges to grant him his legal costs of interim care proceedings on different dates concerning three children, two females and one male. Two of the children have special needs. 

After a DNA test, the man had admitted one of the three children - the complainant daughter's child - was his.

In seeking judicial review, he argued he should have been granted his costs on grounds including it was in the "best interests" of the children, and in the "interests of justice", for him to be represented in the interim care order proceedings.

He also argued he was entitled to costs because he agreed to the DNA test during the care proceedings which exposed him to self incrimination in respect of incest.

In his High Court judgment, Mr Justice White said this judicial review related to care proceedings  brought by the Child and Family Agency (CFA) under the 1991 Childcare Act.

During the care proceedings, a private care arrangement for one of the three children was agreed to between the sides and the application for interim care orders for the other two proceeded, the judge noted.

The man had agreed, during the proceedings, to provide a DNA sample and later acknowledged he was the father of one of the children.

Mr Justice White said the practice in care proceedings is the CFA does not seek a costs order against a parent, guardian or a person in loco parentis when a care order is applied for.

The guiding principles for costs orders also provide there should be no costs orders in favour of parent respondents in District Court proceedings unless there are distinct features in a case, for example, the Agency acted unreasonably in taking or maintaining the proceedings.

The reason for the first District Court refusal of costs to the man was "obvious" as the District Judge did not consider there were any exceptional circumstances to justify granting him costs of the interim care order proceedings before her, Mr Justice White said.

The second District Court case was also under the Child Care Act and concerned the welfare and best interests of children, he said.  The man was not in custody, was not charged with any criminal offence, was not legally obliged to provide a sample for DNA analysis and had not argued in those proceedings the DNA issue was an exceptional reason to merit granting him his costs.

The second District Judge was entitled to take the man's conduct into consideration when deciding costs issues and his refusal of costs contained no deficiency in law or jurisdiction.

The costs refusal was based on the merits and the man, if dissatisfied, could appeal the refusal to the Circuit Court but was not entitled to judicial review, Mr Justice White concluded.

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