Forrest v Legal Aid Board

• Jurisdiction: Ireland
• Judge: O'Hanlon J.
• Judgment Date: 04 December 1992
• Neutral Citation: 1993 WJSC-HC 530
• Docket Number: No. 208 J.R./1992
• Court: High Court
• Date: 04 December 1992

1993 WJSC-HC 530

THE HIGH COURT

No. 208 J.R./1992

FORREST v. LEGAL AID BOARD

Judicial Review

BETWEEN

MARY FORREST

APPLICANT

-and-

THE LEGAL AID BOARD CORK CIRCUIT COURT JUDGES THE MINISTERFOR JUSTICE THE ATTORNEY GENERAL

RESPONDENTS

Citations:

CIVIL LEGAL AID & ADVICE SCHEME PARA 3.2.3(4)

CONSTITUTION ART 34

CONSTITUTION ART 40

CONSTITUTION ART 41

AIREY V IRELAND 1979 2 EHRR 305

CIVIL LEGAL AID & ADVICE SCHEME PARA 1.2.1

CIVIL LEGAL AID & ADVICE SCHEME PARA 1.2.2

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S11

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S13

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S14

FAMILY HOME PROTECTION ACT 1976 S4

FAMILY HOME PROTECTION ACT 1976 S5

FAMILY HOME PROTECTION ACT 1976 S9

FAMILY LAW (PROTECTION OF SPOUSES & CHILDREN) ACT 1981 S2

FAMILY LAW (PROTECTION OF SPOUSES & CHILDREN) ACT 1981 S3

GUARDIANSHIP OF INFANTS ACT 1964 S11

E V E 1982 ILRM 497

HAYES, STATE V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1982 ILRM 210

SHATTER FAMILY LAW IN IRELAND 2ED 57, 58, 60, 44

CIVIL LEGAL AID & ADVICE SCHEME PARA 3.2.3

CIVIL LEGAL AID & ADVICE SCHEME PARA 1.2

CIVIL LEGAL AID & ADVICE SCHEME PARA 3.2.4

CIVIL LEGAL AID & ADVICE SCHEME PARA 3.2.5

CIVIL LEGAL AID & ADVICE SCHEME PARA 3.2.6

CIVIL LEGAL AID & ADVICE SCHEME PARA 3.2.3(2)

CIVIL LEGAL AID & ADVICE SCHEME PARA 3.2.3(4)

CIVIL LEGAL AID & ADVICE SCHEME PARA 3.2.3(6)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S16

GUARDIANSHIP OF INFANTS ACT 1964 S3

Synopsis:

LEGAL AID

Application

Dismissal - Grounds - Validity - Challenge - Husband's claim to judicial separation - Wife sought same substantive relief - Wife's application for legal aid dismissed on ground that she was unlikely to succeed - Husband's claim involved several subsidiary issues - (1992/208 JR - O'Hanlon J. - 4/12/92)

|Forrest v. Legal Aid Board|

1 Judgment delivered the 4th day of December, 1992,by O'Hanlon J.

2 The Applicant, on appeal to the Supreme Court from the High Court, was granted leave to apply for judicial review for the purpose of seeking an Order of Certiorari to quash a decision of the Legal Aid Board refusing to grant her legal aid in pending proceedings before the Circuit Court in Cork, brought under the Judicial Separation and Family Law Reform Act 1989, between Jeremiah Forrest, Plaintiff, and Mary Forrest, Defendant.

3 Leave to apply for judicial review was granted on the following grounds-

4 (a) that the refusal of legal aid consititutes an impairment of the Applicant's right of access to the Courts

5 (b) that the refusal of legal aid to the Applicant in the said proceedings while granting legal aid to her husband constitutes discrimination against the Applicant.

6 In the pending proceedings before the Circuit Court in Cork, the Applicant's husband is seeking a decree of judicial separation against the Applicant, and it appears that he has been granted legal representation by the Legal Aid Board for the purpose of the saidapplication.

7 During the pendency of the said proceedings it appears that the husband applied for and obtained a barring order against the Applicant which has had the effect of excluding her from the family home over the past two years and that this barring order is still continuing.

8 The Applicant deposed that there were two children of her marriage to Jeremiah Forrest - a son, Paul, now aged approximately 20 years, who has left home and gone to live in London, and a daughter, Treasa, now aged about 15 years, of whom the husband has been granted custody on an interim basis.

9 The proceedings in the Cork Circuit Court have been adjourned pending the determination of the present application for judicial review. The Applicant applied initially for legal aid in 1990 but received notification in January 1991 that her application had been refused. She received notice of refusal through the Law Centre, Cork, which read as follows -

10 Your application for a Legal Aid Certificate to defend your husband's action has been refused on the grounds that having regard to all the circumstances of the case including the probable costs of taking or defending the proceedings measured against the likely benefit to the Applicant, it is not reasonable to grant it.

11 She appealed against that decision but was again unsuccessful. The grounds for refusing the appeal were expressed in the same terms as the original decision. This decision came through on the 24th January, 1991. The Applicant claims that her son, Paul, had to leave the family home and go to live in London because of differences which arose between him and his father and in the case of her daughter, Treasa, she has this to say -

12 I say that in or around the summer of 1991 my daughter Treasa, then aged 13 years had suffered greatly by not living with me and that she plucked up enough courage to tell my husband that she wanted to live with me and not him. I say and believe that he took her to his solicitor where she repeated what she had said. I say and believe that the said solicitor said that nothing could be done about it until the case got a hearing, when the Judge would probably take her feelings into account.

13 I say that with the lapse of time my daughter has become estranged from me, as my husband was putting her in fear and was refusing to let her come and visit me.

14 The Applicant renewed her application for legal aid in the early part of 1992, relying on change in circumstances occurring since she had applied previously, but was again refused - this time on the followinggrounds:-

15 Your application for Legal Aid has been refused under paragraph 3.2.3 (4) of the Scheme, namely, that youhave not made a case for being granted a Certificate which is such as to warrant the conclusion that you are likely to be successful in theproceedings.

16 She appealed against this decision, but was notified as follows by letter of 5 June, 1992, from the Legal Aid Board:-

17 This application was considered by the Appeal Committee of the Board on 3 June 1992. The Appeal Committee affirmed the decision of the Certifying Committee and legal aid is accordingly refused.

18 The Applicant challenges that decision in the present judicial review proceedings and in doing so she relies on the provisions of the Constitution of Ireland, Articles 34, 40 and 41.

19 Following upon the decision of the European Court of Human Rights in the Airey case ( Airey v Ireland, 9th Oct. 1979/6 Feb. 1981) a Scheme of Civil Legal Aid and Advice was drawn up by the Irish Government and laid before the Houses of the Oireachtas. It came into operation on December 8, 1980.

20 The Introduction to the Scheme reads as follows at Section 1.2:

Purpose of Scheme

21 1.2.1 The purpose of this Scheme is to enable any person whose means are within the limits specified in the Scheme to obtain legal services in a situation where -

22 (1) a reasonably prudent person whose means were outside those limits would be likely to seek such services at his own expense, if his means were such that the cost involved while representing a financial obstacle to him, would not be such as to impose undue financial hardship, and

23 (2) a competent lawyer would be likely to advise him to obtain suchservices.

24 1.2.2...