The Gazette 1993

GAZETTE

JUNE 1993

Winners and Losers? Legal Aid in

Custody Proceedings

by Mel Cousins*

Despite the trenchant criticism which

j has been levelled at the limitations of

! the Scheme of Civil Legal Aid and

Advice

, there have been relatively few

legal challenges to the operation of the

Scheme. This article outlines two recent

; successful challenges in the High Court

and Supreme Court. However, we first

look at two earlier cases in which the

status of the Scheme was considered.

E . v . E .

In this early case, the respondent

husband argued that he was entitled to

; legal aid in accordance with the

decision of the European Court of

! Human Rights in the

Airey

case.

However, O'Hanlon J did not accept

| that this contention was correct. He said

that any dispute as to whether or not the

State had met its obligations under the

Convention of Human Rights by

establishing the Scheme of Civil Legal

Aid and Advice should be determined

by the procedure provided for in the

European Convention. Thus he held that

the Convention was not directly

applicable in Irish law.

M.C. v. Legal Aid Board

There was a considerable gap until the

next reported challenge to the Scheme

M. C.

Legal Aid Board

in 1990\ In

this case the Board had refused to

adjudicate on Mrs C's application for

legal aid. Due to the pressure of

applications and the inadequate funding

received by the Board, only the most

urgent applications were considered.

The applicant's husband had petitioned

for a nullity but as the proceedings were

not yet listed for hearing the Board

considered that there was insufficient

urgency about the application to warrant

considering it at that stage.

The applicant argued that she was

entitled to have her application

considered under the terms of the

Scheme itself and that her constitutional

right of access to the courts had been

infringed. Gannon, J was of the opinion

that while Mrs C. was apprehensive that

she might not have legal aid when the

petition for nullity came for hearing, she

had not established this as a probability

and had not suffered any wrong

attributable to the Board. As there was

no probability of an imminent risk of

harm she was not entitled to an order of

mandamus requiring the Board to

adjudicate on her application. He held

that the fact that she was a respondent to

a nullity petition did not create any duty

owed to her by any of the respondents.

The validity or otherwise of her

marriage did not involve the State

which simply provided a forum for the

resolution of such disputes. It did not

oblige her or the petitioner to have

recourse to the courts. In contrast,

criminal matters could only be resolved

in the courts as the investigation of

crime was 'a matter of public duty.'

Thus there was no 'obligation on the

! State to intervene in any private civil

litigation so as to ensure that one party

! is as well equipped for the dispute as is

! the other.' Gannon J was of the opinion

that the adoption of the Scheme of Civil

Legal Aid and Advice

'does not impose any duty on the

State or on the Legal Aid Board to

any litigant involved in civil

litigation other than to ensure that the

scheme is implemented fairly to all

persons and in a manner which fulfils

its declared purpose.'

| i

| However, Gannon J did grant a

declaration that the Board was obliged

to consider her application within a

reasonable time, that it had failed to do

so and that the Board had unlawfully

fettered its discretion by failing to

consider the application. He held that

'The duty which the Legal Aid

Board has under the Scheme is a

public duty the performance of

which can be enforced if necessary

and if appropriate at the instance of a

person such as this applicant

Thus the court strongly rejected the

Mel Cousins

argument that there was a constitutional

right to financial support for civil

litigation involving another citizen.

Gannon J's decision on the

constitutional point was probably

unnecessary since he had already found

that the applicant had not established an

imminent risk of harm and thus, even if

a constitutional right to legal aid

existed, it is unlikely that State could

have been considered to be in breach of

any duty to the applicant. However, the

distinction drawn between the State's

involvement in criminal and civil

litigation can be criticised. The courts

are the only forum in which the validity

of the applicant's marriage could be

decided on and once the validity of the

marriage was called into question she

was obliged to go to court. If the State

provides that issues can

-only

adjudicated on in court (as it does in

relation to nullity), it is somewhat

unreal to say that the State has no

involvement in subsequent litigation.

The question as to whether there was a

right to legal aid under the Scheme was

somewhat unclear from the judgment.

The Board had argued that the scheme

was discretionary. While Gannon J held

that the duty of the Board to operate the

Scheme correctly was a public duty

enforceable where necessary by

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