Homeless woman entitled to costs after legal aid system reached its monthly quota, court rules

By Ann O'Loughlin

A homeless mother who successfully fought an attempt to take her newborn baby into care is entitled to her legal costs after her lawyers had to work for her for free because the State's legal aid system had reached its quota in the month she applied.

The High Court ruled the District Court must reconsider its refusal to pay the legal costs incurred by her lawyers after they continued to work for her for free, resulting in the Child and Family Agency (CFA) withdrawing its application to put the baby in care.

The CFA had sought the care order after one of its social workers said the baby was at risk of suffering or neglect due to the mother's homelessness and her lack of preparation for the birth which took place in April 2016.

The social worker said the baby would also be at risk by reason of allegations of numerous incidents of physical abuse which had been made against the woman and members of her extended family by the woman's niece and nephew. There were also allegations by the niece and nephew of sexual abuse.

Ms Justice Mary Faherty said the District Judge took into account the fact that the woman had applied for free legal aid before the care hearing began and was refused.

This was not something the District Judge was entitled to do in the exercise of her jurisdiction particularly having regard to previous High and Supreme Court rulings on this matter, she said.

The judge said in April 2016, the woman asked her solicitor Pól Ó Murchú to represent her and he applied for a free legal aid certificate but was told the quota for such certificates had been exceeded for that month and the Legal Aid Board would not be in a position to provide aid.

Mr O'Murchú, who the judge described as a professional with "an expertise and a dedication in these particular matters", along with her barrister, decided that given the seriousness of the situation facing their client that they had no option but to continue to act for her.

Mr O'Murchú, among other things, got a psychologist to prepare an expert report on the credibility of the abuse allegations made by the niece and nephew.

On April 19, the CFA withdrew its care order application after the woman's sister offered to take her and the baby in. The woman also agreed to a supervision order and safety plan put forward by the CFA.

Mr O'Murchú then applied for the woman's legal costs but the CFA opposed it saying it was not an exceptional case. The District Judge agreed.

In quashing that decision, Ms Justice Faherty was satisfied that the frailty which attached to that decision "impacted upon its lawfulness". She sent the matter back to the District Court for fresh consideration.


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