The Gazette 1993

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GAZETTE NWJUNE 1993
affect their future. He referred to the
statement of O'Higgins C.J. in State
(Healy) v. Donoghue1 in which the
Chief Justice had held that, where a
man's liberty is at stake or where he
faces a severe penalty which may affect
his livelihood, justice may require that
he should have legal assistance.
O'Higgins CJ asked himself
'In such circumstances, if he cannot
provide such assistance by reason of
lack of means, does justice under the
Constitution also require that he be
aided in his defence? In my view it
does.'
Lardner J. was of the view that these
dicta were applicable mutatis mutandis
to the wardship proceedings. He went
on
'Paragraph 3.2.3 (4) must be inter-
preted in relation to the particular
issues arising in each case. Where, in
cases concerning the welfare of
children, a court is concerned to hear
evidence and submissions and then
determine what particular orders
would be best for the welfare of the
child, an applicant parent who wishes
to make a case which it appears
likely will be of assistance to the
court in reaching its decision, may
properly be regarded as being
successful within paragraph 3.2.3 (4).
He has a worthwhile contribution to
make to the hearing of the case. It
seems to me that this approach is
more in accordance with the require-
ments of the Constitution in regard to
the administration of justice.'
He respectfully agreed with the conclus-
ions of O'Hanlon J in M.F. v. Legal Aid
Board in respect to proceedings
I concerning the welfare of children.
The Supreme Court has since heard an
appeal in the M.F. case." The Court
upheld the decision of the High Court.
Finlay CJ stated that the rule concerning
the reasonable likelihood of success
should be interpreted and implemented
on the basis that
'it is only necessary that the Board
should conclude there is a reasonable
likelihood the point of view and
submissions of the person concerned,
with regard to the welfare, custody
and upbringing of the child
concerned, should be among the
material which would be relied on by
the judge in determining the issues
concerning the child.'
As concerns the rule that legal aid
should only be granted where it is
reasonable to do so having regard to all
the circumstances of the case, including
the cost of the proceedings measured
against the likely benefit to the
applicant, Finlay CJ held that, in cases
brought under the Judicial Separation
and Family Law Reform Act, 1988, the
Board should interpret the benefit to the
applicant to be equivalent to the
interests of the applicant in the welfare
of the child.
The effect of the decisions
The effect of the Supreme Court
decision would appear to broaden the
interpretation of the Scheme of Civil
Legal Aid and Advice so that the Legal
Aid Board will now be required to grant
legal aid in more cases involving
custody disputes. However, while the
High Court, at least in S. v. Landy,
appeared to suggest a constitutional
right to legal aid, it appears that the
decision of the Supreme Court is
confined to an interpretation of the
Scheme itself. Thus clarification as to
whether any legal or constitutional right
to legal aid exists must await further
decision of the courts or the long
promised Legal Aid Bill.
1. See, for example, the editorial in this
journal of October, 1992.
2. [1982] ILRM 497.
3. [ 1991] 2 IR 43. This decision was given
on 1 October, 1990. It was appealed by
both the Legal Aid Board and the appli-
cant but at the time of writing the appeal
has yet to be heard by the Supreme
Court.
4. Unreported, High Court 4, December,
1992.
5. Paragraph 3.2.3 (2), which had not
previously been mentioned in the
judgment, provides that the applicant
must, as a matter of law, have reasonable
grounds for taking, defending or being a
party to proceedings.
6. Unreported, High Court, 10 February,
1993. Landy and others are the
Chairman and 12 (male) members of the
Legal Aid Board.
7. 119761 IR 325 at 350.
8. 31 March, 1993, see Irish Times 1 April,
1993.
*Mel Cousins is a barrister.
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