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 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 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 this article which omitted the author's consideration of the (which it conceded must be considered separately in the

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 Í which would be relied on by the j 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 j the applicant to be equivalent to the

funding is provided in order to allow the Legal Aid Board to meet the additional demand. While the High Court, at least in S. -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. 9 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 be pleased to accept Instructions generally Irom Irish Solicitors In the lormatlon and adminis- tration ol Exempt Turks and Calcoa Island Companies and Non - Resident Isle of Man Companies as well as Trust Administration G. T Office Tsl: 809 946 2818 Fax: 808 948 2819 I.O.M.Offlce:- 1M: 0824 822210 Telex : 828285 Samdan 0 Fax: 0624 823799

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 j Legal Aid Board will now be required to grant legal aid in more cases 1 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

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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

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