The Gazette 1993

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 -

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.' '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 Accordingly he did not think that one could speak of either party being

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

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(1) a reasonably prudent person whose means were outside those limits would be likely to seek such

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| 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

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regard to the nature of the

proceedings in which the applicant is

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