The Gazette 1993

GAZETTE

NW JUNE 1993

affect their future. He referred to the statement of O'Higgins C.J. in State (Healy) v. Donoghue 1 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.'

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37 Fenian Street, Dublin 2 Tel: 01 676 4601. Fax: 01 676 7093. DX I Dublin

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. 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. The effect of the decisions The effect of the Supreme Court

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Mail from any of 37 exchanges arrive in the Law Library by 9.00am next working day NORTHERN IRELAND AGENT * Initial Consultation Free * All forms of work undertaken * Competitive Rates * Consultation in Dublin if requested * Legal Aid Available Contact: Kevin J. Neary BCL Donnelly Neary & Donnelly Solicitors 1 Downshire Road, Newiy, County Down T O L E T - OF F I CES Excellent First floor offices over EBS Building Society at 345 Ballyfermot Rd„ D. 10, c, 508 sq.ft. 2, St. Agnes Rd., c, Crumlin c, 606 sq.ft. 111 Cabra Rd., D. 9, c, 519 sq.ft. Brendan J. Walsh & Associates Tel: 6607733 EXPERT WITNESS Specialising in all types of Road Traffic Acc idents including * Consultations * Reports * Court Appearances 30 Years Experience Contact: John Walsh Irish School of Motoring Ltd. Tel: 334262 Tel: (080693)64611 Fax: (080693) 67000

*Mel Cousins is a barrister.

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