The Gazette 1993

JULY/AUGUST 1993

Legal Aid in Custody Proceedings -

Update

In last month's Gazette (Vol. 87 No.

5 p.195) we published an article by

Mel Cousins entitled "Legal Aid in

Custody Proceedings". Inadvertently

we published a penultimate draft of

this article which omitted the

author's consideration of the

judgement of the Supreme Court on

an appeal of the decision of the High

Court in the case of MF -v- Legal

Aid Board. The correct version of

the final section of the article dealing

with the decision of the Supreme

Court is published below:

The Supreme Court has since heard an

appeal in the

M.F.

case." The Legal

Aid Board had granted legal aid to the

applicant in the instant case but

appealed against the High Court's

interpretation of the Scheme which it

considered would have important

implications for other applications for

legal aid. The Board argued that the

decision of the High Court had gone

too far and had, for practical purposes,

excused an applicant for legal aid in

custody proceedings from having to

satisfy the conditions as to the merits

of the case laid down in the Scheme.

The Board argued that the correct

approach was that, in custody cases

(which it conceded must be

considered separately in the

implementation of the Scheme), the

requirement that there be a reasonable

likelihood that the point of view of the

parent concerned would be a factor

that the Court would be likely to

consider, and that it could not

effectively be put forward by any

other method which would be

satisfactory, other than by legal

representation.

Finlay CJ, speaking for the five judge

Court, described the High Court

judgement as 'couched, to some

extent, in black and white terms'. He

stated that, in proceedings under the

Judicial Separation and Family Law

Reform Act, 1989 which involve

questions of the custody, guardianship

and welfare of an infant, 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 that 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, j

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 1989 Act, the

Board should interpret the benefit to

the applicant to be equivalent to the

I interests of the applicant in the

welfare of the child. He also held,

obiter

, that these same principles

would apply in the case of an

application to vary or an appeal from

an originating hearing.

The effect of the decision

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 as it is to

be expected that the point of view and

submissions of one of the parents will

almost always be amongst the

material which would be relied upon

i by a judge in determining issues

: concerning the child. However, a

more expansive interpretation of the

Scheme as a result of this decision in

; custody cases may simply lead to even

longer waiting lists unless additional

funding is provided in order to allow

the Legal Aid Board to meet the

additional demand.

While the High Court, at least in

-v-

Landy,

appeared to suggest a

constitutional right to legal aid, the

decision of the Supreme Court is

confined to an interpretation of the

Scheme itself.

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.

8. Unreported, Supreme Court, 30 March, 1993.

9. Unfortunately, the decision of the Supreme

Court, in this the first civil legal aid case to be

considered by the Court, is notable for the

absence of any detailed reasons for its decision

on the interpretation of the Scheme.

TURKS AND CAICOS ISLANDS

AND

THE ISLE OF MAN

Samuel McCleery

Attorney - at - Law and Sofickor ol PO Box 127 In

Grand Turkjurks and Calcoa Islands, British West

Indies and at P. O. Box 7, Castletown. Isle ol Man

will

pleased to accept Instructions generally

Irom Irish Solicitors In the lormatlon and adminis-

tration ol Exempt Turks and Calcoa Island

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Companies as well as Trust Administration

T Office

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