Poor mother same right as wealthy to chose own lawyers in childcare cases - High Court

A poor mother whose children were taken into care has the same right as a wealthy individual to choose her own lawyers in a bid to get her children back rather than seek legal aid, a High Court judge has ruled.

In an important judgment with implications for legal costs in childcare proceedings, Ms Justice Iseult O'Malley rejected the HSE's argument the mother's decision to hire her own lawyers rather than seek legal aid in her successful bid to get the children back should lead to the mother being refused her legal costs against the HSE.

The mother was entitled to choose her own lawyer, was not obliged to apply for legal aid and her eligibility for legal aid, whether established or presumed, had no bearing on her entitlement to seek her costs against the HSE, the judge ruled.

The HSE and Attorney General appeared to oppose the mother's claim for costs of the District Court child care proceedings on the basis of her being poor, the judge said.

While the HSE and AG would sincerely disclaim such discriminatory intent, there was "no way round" the fact the consequence of their arguments meant persons of limited means would have to justify their choice of lawyer in a way wealthier people would not despite, or because of, the fact they were not seeking State assistance.

While an enquiry into a person's means might be justified where they did seek legal aid, there was "no justification for such an intrusive process" when a person did not see legal aid.

While the AG would apparently prefer that childcare cases be dealt with by the Legal Aid Board, which had impressive expertise in that area, there was no precedent for the proposition a judge could use their discretion on costs issues to either compel or even encourage litigants to abandon their choice of lawyer, she said. That would amount to an "impermissible interference" with that choice.

The HSE had argued a person was not free to have unlimited choice of legal representation in all circumstances. To allow persons like this mother who were "manifestly" eligible for legal aid but who chose private lawyers to then seek their costs against the HSE was contrary to public policy and "catastrophic" for the HSE's finances, it argued.

The judge rejected those arguments and agreed with the mother's lawyers - John Rogers SC, with Margaret Farrelly - the case was "not about legal aid" or an attempt to indirectly establish a right to legal aid in civil cases.

The case was about the right of an individual litigant who is not on legal aid, and has not applied for legal aid, to be treated in the same way as any other litigant not on legal aid "without arbitrary, capricious or invidiuous discrimination" that, on the arguments of the HSE and Attorney General, "could be based only on her supposed lack of means", the judge said.

The mother had chosen her lawyers, was entitled to do so and now sought her costs as would any litigant who won their case. The judge added she knew nothing about the merits of the mother's costs claim or if she would get her costs in the District Court. All that appeared to have been put up in opposition to that claim was effectively "the proposition that she is poor".

She was giving her reserved judgement on legal issues referred to the High Court for determination after the mother applied in the District Court for the costs of proceedings arising after her children were taken into care but later returned to her.

The children were made subject of an emergency care order at a District Court hearing in late April 2011 when the mother had no legal assistance and was not present. She was notified the HSE would be seeking an interim care order in early May 2011 when she attended court, represented by Eamon Bennett Solicitors who represented her at nine more hearings before a final supervision order expired in March 2012. Her lawyers then sought their costs in the District Court against the HSE.

Ms Justice O'Malley ruled, when deciding costs issues, the District Court cannot take into account the mother may have been entitled to legal aid. She also ruled the District Court has jurisdiction, based on statute and the District Court rules, to award costs in proceedings under the Child Care Act 1991.

She also found no statutory basis for the HSE's claim that legislative policy is that costs should not be awarded in child care proceedings. From the Civil Legal Aid Act, the contrary appeared to be the case, she said.