District Court dismisses father's costs claim against HSE for failing to apply for Legal Aid Board representation.

[2011] IEDC 3

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

MB & PM

RESPONDENT

IN THE MATTER OF CHILD 1

8 February 2011

1. Child 1, who is the subject of these proceedings, is a girl born in January 2005. She was made the subject of a full care order on 11

May 2006 and remains the subject of that order.

2. On 3 December 2009, the father issued an application for access to the child. The said application was returnable for 10 December

2009. The matter came before the court on seven occasions, and was disposed of following hearing on 20 July 2010, save as to

costs. The father’s application for costs was heard on 8 February 2011.

3. The father’s solicitors issued the initial application on the father’s behalf and appeared on his behalf on each date the matter was

before the court.

4. 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.

5. The HSE submits that the father was entitled to apply for and (presumably) to obtain representation from the Legal Aid Board and

that, in circumstances where such representation was available to him, the HSE ought not be required to pay the costs of the legal

representation engaged by him. The HSE submits that it is not open to the father to choose to engage a private solicitor and have

the costs of that solicitor met by the HSE. The HSE submits that if there were difficulties in the past between the father and the

Legal Aid Board, nevertheless it is incumbent on the father to re-apply for legal aid. If it then transpired that the Legal Aid Board were

unwilling or unable to provide legal aid to the father (including circumstances where such unwillingness or inability might arise as a

result of father’s own difficulties in availing of such legal aid), then the matter of alternative representation funded by the HSE might

fall to be considered; however, that situation had not been reached or even explored in this case as no application for legal aid had

been made.

6. The father confirms that he did not make an application to the Legal Aid Board for legal aid in respect of this matter.

7. The father has considerable personal difficulties, including past difficulties in engaging with personnel of the HSE, Legal Aid Board,

and others. He spent considerable time in the care of the HSE or its predecessors. It was submitted that he effectively is prevented

by disability from engaging with the HSE. It was submitted that during his dealings with the HSE, he built up a significant relationship

with his solicitor. His solicitor was appointed to act on his behalf pursuant to section 25 of the Child Care Act 1991. It was submitted

that in light of the particular relationship between the father and his solicitor, and the particular circumstances of the case, the

father’s costs ought to be allowed against the HSE.

8. It is in the interests Child 1, who is the subject of applications in this court, and of her parents, that the parents have access to

legal advice and representation.

9. 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 father in this case had he pursued an

application. There is nothing to suggest that the Legal Aid Board would have refused his application, or that the Legal Aid Board would

have dealt with his application any differently from any other applicant. If an application had been made to the Legal Aid Board for

legal aid, and if it was refused or if there was any inadequacy in the representation provided by the Legal Aid Board, this might give

rise to grounds for the father to be allowed his costs against the HSE; however, this stage was never reached as the father did not

apply for legal aid.

10. I accept that there is a significant relationship between the father and his solicitor, which has been built up over a considerable

period of time in the particular circumstances of the father being himself the subject of applications by the HSE. I do not accept that

the existence of such relationship entitles the father to recover his costs of instructing that solicitor. Where representation is

available from the Legal Aid Board to the father in a timely manner and at little or no cost, there is an onus on him to avail of such

representation. Where there is no compelling reason as to why the father could not have availed of representation by the Legal Aid

Board, then if the father chooses not to avail of such representation, I am of the view that he must bear the costs of his

representation himself.