Health Service Executive -v- DD & anor (Costs)

• Judge: Toale J.
• Judgment Date: 05 January 2011
• Neutral Citation: [2011] IEDC 1
• Case Outcome: Approved
• Date: 05 January 2011
• Court: District Court (Ireland)

[2011] IEDC 1

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

DD & MF

RESPONDENT

IN THE MATTER OF CHILD 1

5 January 2011

1. This is an applicat ion for cost s on behalf of t he Respondents. T he Respondents’ solicitors first appeared on t he Respondents’ behalf

on 22 June 2010, and the application for c osts is in respect of representation on t hat and subse quent dates.

2. This matter first c ame before the c ourt on 4 Ma rch 2010, when the HSE applied for, and were granted, a Supervision Order to

expire on 4 June 2010. The Respondents were present and unrepresented in Court on that date.

3. On 18 May 2010, the HSE applied for, and was grante d, an Emergency Care Order to expire on 22 May 2010.

4. On 25 May 2010, the HSE applied for, and was grante d, an Interim Care Order to expire on 22 June 2010. The Respondents we re

not present in Court. At the hearing on that dat e, the Applicant gave evidence that a ta xi had been sent by t he Applicant and had

collect ed the respondent mother but that s he had not c ompleted the journey to Court. The Court wa s also informed that the

respondent father w as incarcerat ed.

5. On 22 June 2010, the HSE applied for, and was granted, a n extension of the Interim Care Order to expire on 20 July 2010. The

Respondents were represented on t hat dat e.

6. The Interim Care Order was subsequently extended further on se ven occ asions, to 5 January 2011. On 5 January 2011, a

Supervision Order was made.

7. The Respondents s tate that a t the initial stages of t hese proceedings, from March to June 2010, their lives were chaot ic due t o

drug abuse. The Respondent mother cont act ed the Legal Aid Board, and was informed that a payment of €50 was required in order

that represent ation be provided to her. She state s that she was unable t o raise that amount owing t o her chaot ic life at that t ime.

The respondent f ather stat es that owing to his chaotic life at t hat t ime, he was also unable to raise €50 payment required for a

contribution to the Legal Aid Board in connect ion with any application for (c ivil) Legal Aid. He also states that his incarceration made

it difficult t o access (civil) Legal Aid.

8. The Respondents’ solicitors were engaged by t he Respondent father in relation to c riminal matters (presumably assigned under the

Criminal Legal Aid sc heme). The respondents asked thes e solicitors to act for them in these proc eedings, which the s olicitors agreed

to do. T he said solicitors f irst appeared on 22 June 2010 and have cont inued to represent bot h respondents in these proceedings

since then.

9. The Applicant stat es that on 4 March 2010, t he Respondents were informed of the possible availability of Legal Aid and the

advisability of being represented in respect of t he proceedings then bef ore the c ourt. The Applicant stat es that the Respondents

were informed by correspondence of t he addresses of Legal Aid Board law centres.

10. The Applicant submits t hat this Court does not have the power t o award costs in thes e proceedings. For reasons that t his court

has previously given in HSE and SK & CP [2010] IEDC 2, I am of the view that this Court may award cos ts.

11. The Applicant submits t hat the Respondents were entitled t o apply for and (presumably) to obtain representat ion from the Legal

Aid Board, and that in circumstanc es where suc h representation was av ailable to them, the Applicant ought not t o be required to pay

the c osts of the legal representat ion engaged by the Respondents.

12. It is in the interest s of the children who are the subject of applications in this c ourt, and of t heir parents, that the Respondents

have ac cess t o legal advice and representation.

13. It is a matter fo r the Stat e to provide a system whereby persons who c annot afford to pay for legal representation can

nevertheless have a cc ess to such representat ion. The syst em provided by the stat e in cases of t his nature is provision of legal

representation by t he Legal Aid Board. Such representation would have been available to the respondents in this case had they

pursued the applications whic h they ac knowledge that t hey made and paid the c ontribution that is required by the Legal Aid Board.

There is nothing to suggest that the Legal Aid Board would have refused t heir applications, or that the Legal Aid Board would have

dealt with t heir applications any differently from any other applicant. Nor is it suggested t hat there was any delay by the Legal Aid

Board in dealing with their applications. Nor is it suggest ed that there was or would have been any inadequac y in the representat ion

that w ould have been provided to t hem by the Legal Aid Board. The only reason advance d for inability of the respondents to pay t he

required contribution is the chaot ic nat ure of their lifestyle at the relevant date. If the payment of t he contribution requested was

beyond the means of t he respondents, t hey could have applied for it to be reduc ed or waived, and t here is no evidence t hat t hey did

so.

14. Where representation is available from the Legal Aid Board to the respondents in a timely manner and at little or no c ost, and

where there is no c ompelling reason as to w hy the respondents could not hav e availed of representat ion by the Legal Aid Board, then

if the respondents choose not to av ail of such representat ion, I am of the view t hat they must bear the c osts of suc h representation

themselves.