District Court dismisses HSE costs claim against parents who declined Legal Aid Board representation due to inability to pay contribution.

[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 application for costs on behalf of the Respondents. The Respondents’ solicitors first appeared on the Respondents’ behalf

on 22 June 2010, and the application for costs is in respect of representation on that and subsequent dates.

2. This matter first came before the court on 4 March 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 granted, an Emergency Care Order to expire on 22 May 2010.

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

not present in Court. At the hearing on that date, the Applicant gave evidence that a taxi had been sent by the Applicant and had

collected the respondent mother but that she had not completed the journey to Court. The Court was also informed that the

respondent father was incarcerated.

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

Respondents were represented on that date.

6. The Interim Care Order was subsequently extended further on seven occasions, to 5 January 2011. On 5 January 2011, a

Supervision Order was made.

7. The Respondents state that at the initial stages of these proceedings, from March to June 2010, their lives were chaotic due to

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

that representation be provided to her. She states that she was unable to raise that amount owing to her chaotic life at that time.

The respondent father states that owing to his chaotic life at that time, he was also unable to raise €50 payment required for a

contribution to the Legal Aid Board in connection with any application for (civil) Legal Aid. He also states that his incarceration made

it difficult to access (civil) Legal Aid.

8. The Respondents’ solicitors were engaged by the Respondent father in relation to criminal matters (presumably assigned under the

Criminal Legal Aid scheme). The respondents asked these solicitors to act for them in these proceedings, which the solicitors agreed

to do. The said solicitors first appeared on 22 June 2010 and have continued to represent both respondents in these proceedings

since then.

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

advisability of being represented in respect of the proceedings then before the court. The Applicant states that the Respondents

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

10. The Applicant submits that this Court does not have the power to award costs in these proceedings. For reasons that this court

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

11. The Applicant submits that the Respondents were entitled to apply for and (presumably) to obtain representation from the Legal

Aid Board, and that in circumstances where such representation was available to them, the Applicant ought not to be required to pay

the costs of the legal representation engaged by the Respondents.

12. It is in the interests of the children who are the subject of applications in this court, and of their parents, that the Respondents

have access to legal advice and representation.

13. It is a matter for the State to provide a system whereby persons who cannot afford to pay for legal representation can

nevertheless have access to such representation. The system provided by the state in cases of this nature is provision of legal

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

pursued the applications which they acknowledge that they made and paid the contribution that is required by the Legal Aid Board.

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

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

Board in dealing with their applications. Nor is it suggested that there was or would have been any inadequacy in the representation

that would have been provided to them by the Legal Aid Board. The only reason advanced for inability of the respondents to pay the

required contribution is the chaotic nature of their lifestyle at the relevant date. If the payment of the contribution requested was

beyond the means of the respondents, they could have applied for it to be reduced or waived, and there is no evidence that they did

so.

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

where there is no compelling reason as to why the respondents could not have availed of representation by the Legal Aid Board, then

if the respondents choose not to avail of such representation, I am of the view that they must bear the costs of such representation

themselves.