MC v Legal Aid Board

JudgeMr. Justice Noonan
Judgment Date17 January 2017
Neutral Citation[2017] IEHC 26
CourtHigh Court
Docket Number[2015 No. 439 J.R.]
Date17 January 2017

[2017] IEHC 26



Noonan J.

[2015 No. 439 J.R.]




Family – Practice & Procedures – Enforcement of breach of access orders – Request for legal aid – Denial – Nature of proceedings – S.27 of the Civil Legal Aid Act, 1995 – Courts (No. 2) Act, 1986 – Guardianship of Infants Act, 1964

Facts: The applicant sought an order for quashing the decision of the first named respondent for refusing legal aid to the applicant. The applicant applied for legal aid for prosecuting an application against the mother of his child under s. 5 of the Courts (No. 2) Act, 1986, which was denied by the first named respondent.

Mr. Justice Noonan refused to grant any relief to the applicant as the proceedings had become moot by the introduction of s.60 of the Children and Family Law Relationships Act, 2015, which provided various enforcement measures for breach of excess orders by introducing new s. 18 A-D into the Guardianship of Infants Act, 1964. The Court, however, held that there was no absurdity in the interpretation of s. 5 of the Civil Legal Aid Act, 1995 as it clearly stated that legal aid should be given in civil proceedings and not criminal, which the applicant intended to bring against the mother of the child. The Court noted that there was no point in rendering the decision when the decision had no effect of resolving the dispute between the parties. The Court rejected the fundamental contention of the applicant who attempted to construe the expression ‘legal aid’ to include a prosecution under s. 5 of the Courts (No. 2) Act, 1986. The Court held that the statutes must be read as a whole while construing its provisions and the long title of the Act of 1995 made it clear that it was enacted to assist those who had insufficient means in civil cases and a prosecution under s. 5 could not be termed as a ‘civil case.’

JUDGMENT of Mr. Justice Noonan delivered on the 17th day of January, 2017

The applicant's claim herein relates to a decision of the first named respondent (‘the Legal Aid Board’) made on or about the 15th May, 2015, to refuse legal aid to the respondent in respect of certain proceedings arising from an alleged breach of an access order made in the applicant's favour in the District Court on the 5th March, 2015. The applicant seeks an order quashing this decision together with ancillary declaratory reliefs. The applicant also claims damages.

Background Facts

The applicant is the father of a minor child born in 2007. He is not married to the child's mother. The applicant is an unemployed labourer whose means are limited. He left school at the age of sixteen years following completion of his Junior Certificate examination. In 2010, the applicant brought proceedings under the Guardianship of Infants Act, 1964 in the District Court. He applied for and was granted legal aid in respect of these proceedings in which he was represented by Dundalk Law Centre. On the 28th October, 2010, the District Court made an order appointing the applicant guardian of his son. Access orders were made by the District Court in 2010 and 2011 in favour of the applicant.


In October 2014, the mother made an application for a safety order under the Domestic Violence Act, 1996 against the applicant which was returnable before the District Court on the 27th November, 2014. On the 29th October, 2014, the applicant applied to the Legal Aid Board for a legal aid certificate in respect of representation in these proceedings. On the 30th October, 2014, the applicant was advised by the Legal Aid Board that he was financially eligible for legal aid and he was offered an appointment with a solicitor at the Dundalk Law Centre, Mr. John Cooke, on the 6th November, 2014. On the latter date, the applicant advised Mr. Cooke that he was currently having access with his son each weekend from Friday to Sunday on foot of an existing court order.


Mr. Cooke attended before the District Court on behalf of the applicant on the 27th November, 2014, when the matter was adjourned pending an application by the mother for legal aid from the Monaghan Law Centre. The matter was subsequently further adjourned and came on for hearing before the District Court on the 5th March, 2015. In addition to the application for a safety order by the mother, she also sought variation of the access provisions.


Following a full hearing by the District Court on the 5th March, 2015, the court made a safety order against the applicant for a period of five years and reduced the applicant's access to Saturday at 6pm until Sunday at 6pm. Following the conclusion of the hearing, Mr. Cooke advised the applicant of his right of appeal to the Circuit Court and the applicant indicated that he did not wish to bring such an appeal.


Mr. Cooke formally wrote to the applicant the next day, the 6th March, 2015, informing him of the terms of the order that had been made by the District Court and that any appeal had to be brought within a period of fourteen days from the 5th March, 2015.


Thereafter, the applicant alleges that on the 21st March, 2015, the mother failed to provide access to his son as required by the terms of the District Court order. As a result, on the 23rd March, 2015, the applicant telephoned Mr. Cooke indicating that he now wished to appeal the order of the District Court, albeit that the time for doing so had now expired. The applicant also indicated to Mr. Cooke that he wished to prosecute the mother for breach of the access order and Mr. Cooke advised him that legal aid could not be provided for such a prosecution.


However, as no information was available as to the reasons why access had not been provided, Mr. Cooke advised the applicant that he would write to the other side to establish why access had not taken place and the applicant agreed to this course. When a response was forthcoming, further consideration could be given to the next step. Subsequent to this telephone conversation, the applicant later the same day attended at the Dundalk Law Centre to complete the forms for an extension of time to appeal to the Circuit Court. Since the applicant's legal aid certificate did not extend to cover this application, he agreed to apply to the District Court office himself for the extension of time.


On the 25th March, 2015, Dundalk Law Centre wrote to the mother's solicitor at Monaghan Law Centre seeking an explanation as to why access had not taken place. Before a response to that letter was received, scheduled access was in fact afforded to the applicant on the 28th March, 2015. On the 1st April, 2015, the applicant left a telephone message for Mr. Cooke advising that satisfactory access had in fact taken place on the previous date. On the 8th April, 2015, the mother's solicitor wrote to Mr. Cooke to advise that she had been fifteen minutes late for the access appointment on the 21st March, as she had been collecting the child from a children's party to make him available to the applicant but the applicant had not waited.


Thereafter, the applicant alleges that prearranged access was refused by the mother on the 11th April, 2015, although he did not advise Dundalk Law Centre of this fact. On the 15th April, 2015, Mr. Cooke wrote to the applicant sending him a copy of the letter of the 8th April, 2015, from Ms. Stephanie Coggans of the Monaghan Law Centre on behalf of the mother. Mr. Cooke asked the applicant for instructions in relation to the content of this letter and also for a copy of the appeal document so that he could process an application for legal aid on the applicant's behalf for the appeal. The applicant never replied to this letter.


Subsequent to this date, the applicant alleges that he was refused access by the mother on the 25th April, 2nd May and 9th May, 2015. Dundalk Law Centre was not advised of these facts. In or about this time, the applicant consulted private solicitors, Mssrs. MacGuill & Company about the matter. They wrote to Mr. Cooke on the 14th May, 2015, expressing the view that the appropriate course was a further application to the court potentially granting custody to the applicant and reversing the access provisions. They indicated that this was a matter for the Legal Aid Board.


This letter was received by Mr. Cooke on the following day, the 15th May, 2015, following which he telephoned the applicant. The applicant advised Mr. Cooke that he wished to prosecute the mother arising out of the breach of the access order and that he wished his file to be transferred to MacGuill & Company. Mr. Cooke requested a written authority from the applicant for this purpose.


Following this conversation, Mr. Cooke wrote on the same day to the applicant advising that the next step appeared to be to prosecute the mother for breach of the order but advising that Mr. Cooke could not act in this matter ‘as there is an element of criminal proceedings in it’. He noted the applicant's instructions to forward the file and confirmed that he would do so on receipt of the applicant's written instructions. Mr. Cooke also wrote to MacGuill & Company the same day advising that he could not deal with a breach of access case as such cases are not covered by statute and the party concerned would have to instruct a private solicitor in such circumstances. He again indicated that he would forward the file on receipt of the applicant's written authority.


Thereafter, the applicant alleges that on the 20th June, 2015, access was again denied him. On the 25th June, 2015, a summons was issued pursuant to s. 5 of the Courts (No. 2) Act, 1986 naming the applicant as complainant and the mother as defendant alleging that the mother failed to comply with the terms of the order of the District Court of the 5th March, 2015.



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