218 / 462
GAZETTE
mandamus, this does not necessarily
imply any right to legal aid under the
Scheme but simply a right to have the
I Scheme implemented correctly.
The Recent Cases
i In
M.F.
v.
Legal Aid Board\
the
applicant wished to defend judicial
separation proceedings brought by her
husband who had himself been granted
legal aid by the Board. She had been
refused legal aid to defend the judicial
1
separation by the Board on the basis of
i paragraph 3.2.3 (6) of the Scheme, i.e.,
Í that 'having regard to all the
| circumstances of the case including the
probable cost of taking or defending the
proceedings measured against the likely
benefit to the applicant, it is not
unreasonable to grant it.'
She applied again for legal aid in June,
1992 but was again refused this time
under paragraph 3.2.3 (4) of the
! Scheme, namely, that she had not made
a case for being granted legal aid such
as to warrant the conclusion that she
í was likely to be successful in the
I proceedings. The applicant challenged
this decision by way of judicial review
and, although only on appeal to the
Supreme Court, was granted leave to
| apply,
i
j O'Hanlon J referred to the purpose of
the Scheme, set out in paragraph 1.2.1,
; which was:
i
to enable any person whose means
are within the limits specified in the
Scheme to obtain legal services in
the situation where -
|
(1) a reasonably prudent person
I
whose means were outside those
limits would be likely to seek such
|
services at his own expense, if his
means were such that the cost
involved while representing a
j financial obstacle to him, would not
be such as to impose undue financial
hardship, and
(2) a competent lawyer would be
likely to advise him to obtain such
services.
j
O'Hanlon J stated that:
|
'In my opinion it was inappropriate
!
for the Board to base their deduction
on those provisions of the Scheme
[i.e., paragraph 3.2.3 (4)], having
I
regard to the nature of the
1
proceedings in which the applicant is
involved and the matters which may
be dealt with by the Court on the
hearing of those proceedings.'
This was compounded by the fact that
the applicant's husband had
successfully applied for legal aid which
entitled him to be represented.
O'Hanlon J referred to the very
extensive range of ancillary orders
which could be made by the court on an
application for judicial separation.
These included orders concerning
barring or protection, custody or access,
maintenance and the family home. In
custody and access proceedings the
Court must have regard to the welfare
of the child as the first and paramount
consideration.
Having regard to this, O'Hanlon J was
j
of the opinion that proceedings under
the Judicial Separation and Family Law
| Reform Act, 1989 and other
! proceedings having to do with the
welfare of children of a marriage were
in a completely different category from
I 'conventional' disputes between
litigating parties. He went on:
'In a sense it may be said that in
matrimonial proceedings there are no
winners and no losers. The husband
and wife have reached the painful
stage in their marital relationship
where one or other or both of them
have reached the stage where they
can no longer tolerate the
continuance of the relationship, and
the court is called upon to decide
whether the legal bond should be
severed and if so, what consequences
must follow for the partners to the
marriage and for any dependant
children of the union who are still
under age.'
Accordingly he did not think that one
could speak of either party being
'reasonably likely to be successful in
the proceedings' particularly in relation
to the best interests of the children.
Therefore he held that
'In relation to these matters and
particularly in relation to questions
as to custody, access to and
maintenance of infant children, once
it is established that one or other or
both spouses have not the means to
be legally represented before the
court, I think it would only be in
wholly exceptional circumstances
which I cannot now envisage, and
which do not, in my opinion, exist in
the present case, that legal aid could
be denied in reliance on the matters
referred to in paragraph 3.2.3 (2),
3.2.3 (4) or 3.2.3 (6) of the Scheme."
Accordingly he quashed the decision of
the Board and referred the matter back
to it to be dealt with in the light of the
judgment.
This case was followed shortly
afterwards by the broadly similar case
of
R.S.
v.
Landy and Ors
.
6
In these
proceedings the applicant challenged
the refusal by the Board of her
application for legal aid to defend
wardship proceedings brought by the
Eastern Health Board in respect of her
son. This application had been refused
on the basis of paragraph 3.2.3 (4) (i.e.,
not reasonably likely to be successful).
The applicant, relying on
M.F.
v.
Legal
Aid Board,
argued that as the wardship
proceedings involved the custody of her
child the Board were obliged to grant
her legal aid. Lardner J was unable to
accept that there was an automatic right
to legal aid.
However, he accepted that the
requirement of a reasonable likelihood
of success was not particularly aptly
expressed to apply to wardship
proceedings. Counsel for the Legal Aid
Board informed that Court that the
Board in cases of this kind have
interpreted paragraph 3.2.3 (4) as
requiring that the applicant must make a
case that a benefit of reasonable
substance is likely to accrue to him or
her. Lardner J considered that this was a
proper interpretation in so far as it went.
He went on to say that
'in cases where the applicant is a
partner and the issues are concerned
with the future custody or the general
welfare of the child and a case is
made which warrants the conclusion
that such case is likely to be of
assistance to the court in determining
such issues, in my opinion . . . legal
aid should be granted.'
He did not think that it was acceptable
that legal aid should be refused in cases
such as the instant case having regard to
the family status, the relationship of
mother and child and the importance to
I them of decisions which profoundly
196