Flac news vol17 no2 apriljune

flac NewsI S S N 0 7 9 1 4 1 4 8 l V O L U M E 1 7 l N U M B E R 2 l A P R I L - J U N E 2 0 0 7

Child poverty must begovernment priority

State must restore universal Child Benefit

P rior to May 2004, Child Benefitwas a universal non-contributo-ry payment paid to the par-

ent/guardian of every child in Ireland.The uncomfortable prospect of so-called Ôwelfare tourismÕ surrounding EUenlargement in 2004 led to the intro-duction of an additional qualifying pro-cedure for all social assistance pay-ments: the Habitual Residence Condition.Despite being found to be in breach ofEU law in relation to family payments, itcontinues to create financial hardshipfor some of the most vulnerable peoplein Ireland’s diverse community.

Guidelines are available to determinewhether an applicant may be consid-ered habitually resident. These areloosely drawn from EU caselaw, andinclude such factors as length and con-tinuity of residence, length and purposeof absence, nature and pattern ofemployment, applicantÕs main centre ofinterest and future intentions. Theseconsiderations are not exhaustive andthe presumption of non-compliance inthe Social Welfare Act 2007 makes iteven more difficult for people to accesstheir entitlement.

The Irish government made a commit-ment in the National Anti-PovertyStrategy of 2003 to eliminate childpoverty by 2007 and lift children out of

a state of social deprivation.The oper-ation of the HRC since May 2004 inrelation to Child Benefit, therefore,appears to be contradictory in that ithas the effect of driving certain chil-dren into poverty. It has created ananomaly in the law and engendereddelays and inconsistent decisions onapplication and appeal due to unevenapplication within the Department ofSocial and Family Affairs.

It is a central objective of FLAC thatsocial welfare law be reformed to pro-tect the most vulnerable people in theState. Child poverty diminishes lifeopportunities and creates social prob-lems into the future.This issue is how-ever a matter of policy and principle;any change would require very little inthe way of legislative amendment.

In a Dail debate in January 2006, AnTaoiseach Bertie Ahern TD defended theimportance of Child Benefit as a mecha-nism to combat child poverty. Whenfaced with the prospect of denying thispayment to qualifying migrantsÕ children-who were resident abroad in order tosave Û1 million out of a Û350 millionbudget, he said:

So we were going to be realScrooges and change a 36-year-oldregulation to save Û1 million in acalendar year. We did not do that.

If we did, there would be people inhere calling me the biggest racistthat ever was.

Yet surely the same principle is appli-cable when we speak of the 864 chil-dren in Ireland denied the payment in2006 on the basis of their parentsÕimmigration status. If the numbers areso small, why continue to penalise chil-dren who arrive in Ireland involuntari-ly? Is it merely to save the State someÛ1.5m out of a Û350m budget?

The pre-election manifestos of themajor political parties this past springare interesting in this regard. TheLabour Party warns that Òchild povertyresults in incalculable loss of humanpotential, and stores up problems forwhich society continues to pay fordecadesÓ, but remain silent on the issueof universal Child Benefit. Only theGreen Party takes a solid stance, mak-ing an unequivocal statement of theirintention to reintroduce Child Benefitas a universal payment. The Fianna Failelection manifesto states a commit-ment to quadruple the Child Benefitpayment. This clearly shows that it isnot a lack of funds which perpetuatesthe current system and may be anotherindication that the new government willrevisit the issue.

[continued on page 2]

F R E E L E G A L A D V I C E C E N T R E S

flac News Vol. 17, No. 2

F L A C N E W S l A P R I L – J U N E 2 0 0 722

iinn tthhiiss eeddiittiioonn......

Child poverty must be government priority 1 & 2

Lawyer calls for support for ruleof law in Pakistan 3

Advocacy:A legal lifeline, but no legal aid available 4-5

ICCPR shadow report in progress 5

Creating a place for all: SICCDAconference in July 5

Treoir conference highlights needto refocus on child rights 6-7

FLAC seminar on amicus curiaeinterventions held in Dublin 8-9

Volunteer training seminar centres on legal practice,children, RTOs 10-11

Focus on FLAC staff:Catherine OÕDonovan 12

2006 annual statistical report showsstate still neglecting civil legal aidneeds of population 13-15

Editorial:Election Ô07 - analysis & prospects for change 16

FLAC News is published quarterlyby Free Legal Advice Centres Ltd.,13 Lower Dorset Street, Dublin 1.

Editing & Layout: Yvonne Woods

Contributors: David Burke, RuthDowling, Katie Hayes, CatherineHickey, Gillian Kernan, ChristinaMcGranaghan, Elizabeth Mitrow,Kathryn Norris, CatherineOÕDonovan,Yvonne Woods

ISSN 07914148

Photos: FLAC, Elizabeth McCann,Derek Speirs,Treoir

The views of individual contributorsdo not necessarily represent theviews of FLAC.

FLAC News — ISSN: 0791 4948

Child poverty must be government priority

[continued from front page]

The Department of Social and FamilyAffairs estimates that 1% of applicationsare denied at the appeal level becausethe claimant does not satisfy the HRC.On the issue of asylum seekers beingdenied Child Benefit, the Departmentunfortunately provides very little in theway of concrete numerical data.

The integrity of the Child BenefitRegister must be ensured for reasonsother than solely the needs of recipi-ents. Research to be carried out overthe next seven years which will influ-ence future government policy on chil-dren living in Ireland intends to drawinfant study participants exclusivelyfrom the register. This will exclude thevoices, needs and opinions of specificgroups of children and parents residentin this country.

ÔGrowing Up in IrelandÕ is a study com-missioned by the Department of Healthand Children in association with theDepartment of Social and Family Affairsand the Central Statistics Office. It is tobe carried out by a consortium ofresearchers from the Economic &Social Research Institute and TrinityCollege Dublin. The information, gath-ered by following the progress of18,000 children of various ages overseven years, is designed to assess theirsocial, economic and cultural develop-ment. Former Minister for Children(and newly appointed Minister ForJustice) Brian Lenihan TD said of thestudy that it Òis an exciting and impor-tant project which will provide us withinformation to improve our under-standing of childrenÕs livesÕ.

The commissioning of the first evernational longitudinal study of children isto be commended if it provides a soundevidence base for the development offuture policy. Unfortunately recognitionis not given to the fact that using thecurrent Child Benefit Register as a Ôran-domÕ child selection mechanism willprovide only skewed evidence as itdenies participation to children and par-

ents who are not on the register andlikely to be most affected by change inpolicy.Again the same children who paya high price for maintaining our immi-gration policy are those deemed suffi-ciently irrelevant to take part in theresearch. In effect these are the childrenof almost all asylum seekers, of undocu-mented and exploited workers, of thoseawaiting a decision on their residencystatus and other vulnerable groups.

The recently announced programmefor government includes a commitmentto fully implement the UN Conventionon the Rights of the Child. Article 26states that every child has Òthe right tobenefit from social securityÓ.This right,in accordance with Article 2 applies toall children without exception. Further,Article 3.1 requires that Òthe best inter-ests of the child shall be a primary con-siderationÓ where children are to beaffected by a decision.

Child Benefit must be restored as a uni-versal payment without discrimination.It is time to see whether political prom-ises are to be honoured, and if so,whether serious efforts are to be madeto put childrenÕs rights first. In thewords of childrenÕs author JK Rowling(who is quoted by the Labour Party inits manifesto),Òpoverty is a bad place tolive on your own, but the worst placeon earth if you have a child with youÓ.

Here in Ireland our record of protect-ing children and childhood ranks amongthe worst in Europe. Surely it is timethat, in this country, childrenÕs rights nolonger have to be contingent on thoseof their parents. Denial of Child Benefitleads to exclusion and discriminationand forces children into poverty; ittherefore must be restored immediate-ly as a universal payment.

See also: www.oireachtas.ie

www.welfare.ie/publications/napswww.growingup.ie

F L A C N E W S l A P R I L – J U N E 2 0 0 7 33

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Lawyer calls for support for rule of law in Pakistan

On Friday 27 April Sardar LatifKhosa, an Advocate of theSupreme Court of Pakistan

and a Senator with the PakistanPeopleÕs Party, addressed a group oflawyers and others interested in inter-national human rights at a lunchtimeseminar in the Law Society buildings inDublin. The event was supported byFLACÕs Public Interest Law Networkand the Law SocietyÕs Human RightsCommittee.

Senator Khosa has been deeplyinvolved in the protests against theremoval from office of Chief JusticeMohamed Iftikhar Chaudhry in March2007. PakistanÕs president, GeneralPervez Musharraf, attempted to forceChief Justice Chaudhry to resign inMarch, accusing him of Òmisuse ofofficeÓ. When the Chief Justice refusedto comply, he was placed under housearrest and dismissed from office.

Lawyers took to the streets to protestthis treatment of the Chief Justice, butthe demonstrations were violently sup-pressed, with many of the protestinglawyers — including Sardar Latif Khosahimself — being beaten by the police.Up to eighty lawyers were arrested andcharged with terrorism and publicorder offences.

At the seminar, Sardar Latif Khosaemphasised the need to see the eventsin Pakistan in a global context andspoke passionately about the need forthe rule of law to be supreme for thesake of civilisation.

The supreme status of the rule of lawhas been eroded in recent times, par-ticularly post 9/11 with the invasion ofIraq without a UN resolution, and theassertion of a Òpre-emptive right ofself-defenceÓ by the US and UK.Senator Khosa feels that the whole ofhumanity is affected when the rule oflaw is not respected and sees lawyersas having a particular duty to unite anddefend the rule of law wherever itcomes under threat.

Turning to the situation in Pakistan,Senator Khosa drew attention to the(il)legal means through which PresidentMusharraf has attempted to strengthenhis hold on the presidency. Thesemeasures included:

8 holding a referendum to give legit-imacy to his presidency, but pre-senting no alternative candidate;

8 having the Supreme Court givethe President a mandate to amendthe Constitution, when in law theSupreme Court does not have thepower to delegate power to

amend the Constitution;8 and, finally, the PresidentÕs sus-

pending the Chief Justice, despitehaving no legal power to do so, asthe Chief Justice is not subordi-nate to the President.

In the months leading up to his dis-missal from office, the Chief Justice hadangered the government by raisingquestions regarding Òthe disappearedÓ— people abducted and held withouttrial by the security forces — and byoverturning the privatisation of a state-owned steel mill due to allegations ofcorruption.

Senator Khosa underlined, however,that the protesting lawyers in Pakistanwere not fighting for just one man andhis position, but for a nobler cause: thatof the independence of the judiciary.

Sardar Lhatif Khosa concluded by call-ing on the Law Society to petition forthe re-instatement of Chief JusticeChaudhry and the dropping of allcharges against those arrested duringthe protests against his dismissal.

SStteepphheenn CCoolllliinnss,, ssoolliicciittoorr aanndd SSaarrddaarr LLhhaattiiff KKhhoossaa,,aaddvvooccaattee ooff tthhee SSuupprreemmee CCoouurrtt ooff PPaakkiissttaann

SSaarrddaarr LLhhaattiiff KKhhoossaa aanndd AAllmmaa CClliissssmmaannnn,, SSeeccrreettaarryy ooff tthhee LLaaww SSoocciieettyy

HHuummaann RRiigghhttss CCoommmmiitttteeee

See also: www.liberalforumpakistan.org/

www.supremecourt.gov.pk/www.lawsociety.ie/


When people hear the wordÒadvocateÓ they usuallythink of a lawyer — some-

one formally trained in the law who willstand up in court to put forward yourcase. However there is a new breed ofadvocates in Ireland today, trained in allmanner of disciplines with the commongoal of enabling their clients to effec-tively voice their needs and wishes, toaccess their entitlements and to asserttheir rights.

Advocacy has developed from a recog-nition that people are entitled to be incontrol of their own lives. However thismay not always be possible, perhapsdue to financial constraints, disability orsocial attitudes.Thus some people findthemselves in need of an intermediary,someone who will help them to identi-fy their needs and enable them to fulfilthem.

Advocacy involves a range of activities,from providing people with the neces-sary information to be able to speak forthemselves, to actually speaking ontheir behalf. Generally their role is towork in partnership with the personthey represent and to take their side.

However, non-legally trained advocatesfrequently have to carry out what is,technically, legal representation, asthere is a shortfall between the needfor representation in legal matters andthe availability of legal representativesfor those of limited means.The primaryreason for this shortfall is the limita-tions on our current system of civillegal aid.

Civil legal aid is not available in Irelandfor certain types of cases which areexcluded by law from the remit of theLegal Aid Board, such as some types ofdisputes involving a right or interestover land. Many landlord and tenantissues are excluded.

Also, legal aid is currently only availablefor cases which are due to come beforethe District, Circuit, High or Supreme

Courts. This scheme can also beextended to proceedings before anyprescribed tribunal. However this hasonly been done in respect of theRefugee Appeals Tribunal.Thus civil legalaid is not available in proceedingsbefore any administrative tribunals,most notably the Social WelfareAppeals Tribunal, the Equality Tribunaland the Employment Appeals Tribunal.

The rationale for this is that adminis-trative tribunals should be relativelyinformal, and thus legal representationis not only unnecessary, but unhelpful,in that it drives up the tribunal costsand leads to the increased legalisationof proceedings.

Nonetheless many participants in thesetribunals do engage legal representa-tion. For example, in the 2005 annualreport of the Employment AppealsTribunal, the total number of casesinvolving claims under the UnfairDismissals Acts 1977-2001 is given as1,414:8 769 employee parties (84.41%)

were represented (126 by tradeunions, 586 by legal representationand 57 by other persons).

8 655 employer parties (71.9%)were represented (44 by employ-ersÕ associations, 488 by legal rep-resentation and 123 by other per-sons.

This creates an inequality of arms,working against those who cannotafford legal services. The balance istipped further in favour of alreadystronger parties, and to the disadvan-tage of potentially vulnerable groups,such as lower paid employees andsocial welfare dependents. To remedythis, a number of groups have devel-oped advocacy services on their owninitiative.

The Citizens Information Board (for-merly Comhairle), for example, is cur-rently involved in improving the avail-ability of advocacy services. It has devel-oped accredited training, commissioned

research, coordinated projects alreadyin operation and resourced advocacyprojects.

Threshold is an example of a non-prof-it, independent organisation that hasdeveloped advocacy services.Thresholdrepresents tenants in the private rent-ed sector. It intervenes on behalf oftenants in their dealings with landlordsand, since 2004, with the PrivateResidential Tenancies Board (PRTB)which now has responsibility for deal-ing with cases involving landlord/tenantdisputes.Typical PRTB hearings concerna threatened eviction, invalid notice,rent arrears or the standard of accom-modation.

The PRTB applies the law laid down inthe Residential Tenancies Act 2004 andthe underlying legal concepts of land-lord/tenant law.The format of the hear-ings is the same as that in a court hear-ing, with opening submissions, examina-tion-in-chief, cross-examination andclosing submissions. PRTB hearings areintended to be informal, i.e., do notrequire the parties to have legal repre-sentation. For example, the PRTB isflexible on procedural matters, to thepoint of admitting evidence and submis-sions that would not be accepted in aÔnormalÕ court.

Nonetheless, a party with legal repre-sentation is in a stronger position,according to ThresholdÕs Legal Officer,Kevin Baneham. ÒThey will be moreaware of the relevant legal principleinvolved, they will ask the right ques-tions and say the right things and, final-ly, they will have obtained the best sup-porting evidence.Ó But it is often onlylandlords who can afford legal repre-sentation. This is the imbalance thatThreshold seeks to correct by repre-senting tenants at hearings.

In order to assist Threshold adviceworkers in preparing for and conduct-ing hearings, Threshold has prepared aPRTB Handbook and provides relevantlegal training. Threshold workers are


Advocacy: A legal lifeline, but no legal aid

55F L A C N E W S l A P R I L – J U N E 2 0 0 7

More information:

http://www.threshold.ie/http://www.citizensinformation.ie/

http://www.prtb.ie/http://www.legalaidboard.ie/

also supported by the in-house LegalOfficer. This support covers the evi-dence and legal issues arising in theparticular case and on-going advice ongeneral principles used by the PRTB indispute resolution.

The Threshold advice worker thenuses this information to represent ten-ants at hearings.They are expert in therelevant law (but not trained lawyers)and experienced at conducting hear-ings.They have also built up close rela-tionships with the tenant and this trustis essential during the hearing and anynegotiations.

However, in certain cases, a tenantneeds to make a referral to the CircuitCourt or High Court, as provided forin the Residential Tenancies Act. Butsince civil legal aid is unavailable inmost cases involving an interest in land,tenants are often unable to make thesereferrals. This restricts the ability oftenants to challenge interpretations ofthe PRTB of the Residential TenanciesAct and general landlord/tenant law.

The development of advocacy servicesby Threshold and many other non-profit organisations and communitygroups is crucial in ensuring equality ofaccess to courts and tribunals.However there is still a largely unmetneed for representation in certain cat-egories of cases, such as cases involvingsocial housing. Housing cases usuallyinvolve a right or interest over land andare thus excluded from the remit ofthe Legal Aid Board. Low-cost repre-sentation or advocacy services areessential in these circumstances, sincethe outcome of cases can impact great-ly on peoplesÕ lives.

ICCPR Shadow Report in progress

Creating a place for all

FLAC, along with the Irish Councilfor Civil Liberties (ICCL) and theIrish Penal Reform Trust (IPRT),

has commissioned an independentresearcher to conduct research on civiland political rights in Ireland. We will beproducing a Shadow Report to respondto the Irish governmentÕs third reporton IrelandÕs implementation of theInternational Covenant on Civil andPolitical Rights (ICCPR).

Under Article 40 of the Covenant, allStates Parties are required to submitregular reports on how the rights pro-vided for in the Covenant are beingimplemented. This international humanrights treaty sets out extensive rightsincluding the right to life; freedom fromtorture and the right to a fair trial.

The research involves consultationwith groups such as migrants, asylumseekers, Travellers, ex-prisoners andcertain family groups about their expe-riences of civil and political rights inIreland. It further involves an assess-ment of how these rights impact thework of key stakeholders who operatein relevant areas in relation to theICCPR, as well as criminal justice, immi-

gration and credit/debt lawyers.

Previously many of the concerns raisedby non-governmental organisations(NGOs) have been reflected in the rec-ommendations of the UN Human RightsCommittee, which monitors state signa-toriesÕ implementation of ICCPR.

For example, the CommitteeÕsObservations/Recommendations in rela-tion to IrelandÕs first and second reportsshow that they took on board the con-cerns of NGOs. With this in mind, weare holding a consultation with NGOs oncompletion of the draft Shadow Reportin June 2007.

The Irish government has already sub-mitted its report to the UN HumanRights Committee.When the date is set,the ICCL, FLAC and the IPRT will travelto Geneva to present the final jointShadow Report, to lobby Committeemembers and to explain the civil andpolitical rights situation in Ireland todayfrom an independent point of view.

A leaflet describing the project isavailable to download from theFLAC website.


available

SICCDA — the South Inner CityDevelopment Association — isorganising a seminar on its expe-

rience with growing sustainable com-munities in a changing urban environ-ment through the development of anintegrated rights-based strategy.

The event, entitled ÔA Home for AllÕ,willtake place in the Guinness Storehouse,Dublin 8 on 3 July from 9.30am to 3pm.Minister for the Environment JohnGormley has been invited as guest andthe conference will be chaired by PhilipFlynn, CEO of the Digital Hub.

According to organiser Marie Bennett,Òthe Irish urban environment has and is

experiencing rapid major social, eco-nomic and cultural changes, some posi-tive but many negative, over the pastdecade. The physical, psychological andeconomic impact of the Celtic Tiger onfamily and community life both for Irishand migrant people needs to beassessed.Ó

The event will examine at the rightsand responsibilities of all concerned intackling such negative impacts and inpromoting the positives of the situa-tion.

Contact SICCDA by telephone at01-4536098 or by e-mail at [email protected]


Amulti-disciplinary seminarentitled ÒThe Legal andPractical Implications of the

ÔBaby AnnÕ CaseÓ was held on 6 June2007 by Treoir, the national federationof services for unmarried parents andtheir children.

The Supreme Court provoked wide-spread and heated debate in Novemberlast year, when it ruled that the familywho had cared for ÔBaby AnnÕ for almosttwo years after she was placed foradoption must surrender her to theappellants, her natural parents. TheCourt held that a child may only beadopted from the natural, marital familywhere there had been a serious failureof parental duty. Placing the child foradoption did not constitute such a fail-ure. The judicial reasoning in this case,reported as N. & anor. -v- Health ServiceExecutive & ors. [2006] IESC 60 reflectsthe vulnerable status of children in Irishlaw.

Proving legal perspectives at the semi-nar were solicitor Geoffrey Shannon, anexpert in family law and childrenÕsrights, and two specialists in the field ofsocial work, Berit Andersen and EilishCraig.

Mr Shannon outlined the facts of thecase. In 2004 a young unmarried moth-er had, after counselling, decided to giveher baby up for adoption. (The babywas assigned the pseudonym ÒAnnÓ bythe Courts.) She signed a VoluntaryCare Agreement Admission to Care,placing Ann into the care of Òpre-adop-tiveÓ foster parents. In the routine prac-tice of adoptions in Ireland, there areeffectively two ÒconsentsÓ required ofthe birth mother — the agreement toplace the child for adoption, and then afinal, binding consent upon the makingof an Adoption Order.

The initial agreement signed by thebirth mother stated that Òconsent maybe withdrawn at any time before themaking of an adoption order.Ó The formexplained that where a person who has

consented to the placing of a child foradoption later refuses to give consentto the making of an adoption order, orwithdraw their consent, it is open tothe prospective adopters to apply tothe High Court for an order under sec-tion 3 of the Adoption Act 1974. TheHigh Court, if it is satisfied that it is inthe best interests of the child so to do,may make an Order giving custody ofthe child to the prospective adopters.

This is what did in fact occur. InSeptember 2005, the birth motherwrote to the Adoption Board to saythat she no longer wished the adoptionto proceed. In January 2006 the birthparents married. Fennelly J said in theSupreme Court judgement that Ò[i]tseems reasonably clear that (the birthparents) were acting on legal advice tothe effect that their marriage wouldimprove their prospects of recoveringthe custody of Ann.Ó

The foster parents then sought anorder from the High Court that theiradoption of the child, by then two yearsold, be allowed to proceed. This orderwas granted.

The natural parents appealed to theSupreme Court pursuant to article40.4.2 of the Constitution, seekingreturn of their child. The appeal wasallowed, premised on the constitutionalposition that the family unit, based onthe institution of marriage, is the bestplace for the upbringing of a child. Thecourt held that, under the Constitution,there are only two circumstanceswhere the adoption in a case like thismay be allowed to proceed — if therehas been a failure of parental duty underArt 42 (5) of the Constitution, or ifthere are other Òcompelling reasonsÓ,neither of which had been proven in theappeal.

In the original High Court case broughtby AnnÕs foster parents, Re GH, an Infant,from 2005, McMenamin J said that therisk of psychological harm to the baby ifshe was to be taken away from her fos-

ter parents, with whom she had bond-ed, displaced the constitutional pre-sumption that the best place for her tobe brought up was with her naturalfamily. The child had formed a verystrong attachment to the foster parentswho wished to adopt her. In the opinionof Geoffrey Shannon, the weight weattach to this factor, as a society, isimportant.

The judgement of Hardiman J of theSupreme Court has attracted muchcomment. ÒThe Constitution does notprefer parents to childrenÓ, he said, Òitprefers parents to 3rd parties, official orprivate, priest or social worker, asenablers and guardians of childrenÕsrightsÓ. But the reality is not that simple.What about the position of foster par-ents? Also, it is misleading to suggestthat parents will always act in keepingwith the welfare and best interests oftheir children.

Mr Shannon referred to another Irishcase where issues of parental care wereexamined, the ÒPKUÓ case, NorthWestern Health Board v HW and CW[2001] IESC 90. In that case theSupreme Court held that the autonomyof a childÕs parents prevented the Statefrom intervening to enforce a diagnostictest which the Health Board haddemonstrated was strongly in the childÕsinterests.

The parents believed that the testwould cause harm to the child. It washeld by the Court that no matter howunreasonable or irrational this belief,there is a Constitutional presumptionthat the welfare of a child is best pro-tected by its natural parents. FinlayGeoghegan J held that this presumptioncan only be rebutted where the Courtis satisfied that the welfare of the childcan not be found within the naturalfamily, and that the natural parents havefailed and will continue to fail to providefor the educational, moral or physicalwell-being of the child.

There is an extremely high threshold to


Treoir conference highlights


meet before the State can intervene ina child welfare case. According to MrShannon, this threshold must be low-ered in the interests of providing arobust, effective system of child protec-tion. Moreover, legislation can go no fur-ther without constitutional amend-ment. The Guardianship of Infants Act1964 s.3, states that in any proceedingsconcerning the custody, guardianship orupbringing of an infant, the welfare ofthe infant shall be the first and para-mount consideration.Yet by the CourtÕsreasoning in AnnÕs case and others, thislegislation may be inconsistent with ourConstitution.

Treoir has long campaigned for the spe-cific insertion of childrenÕs rights intothe Constitution and for these rights tobe paramount, nothwithstanding anyother article in the Constitution. Thiswould create equality between childrenborn within and outside marriage.

The Baby Ann case reminds us that cur-rently the Constitution recognises onlythe family based on marriage.Geoghegan JÕs judgement, in particular,emphasised that the fact that the appli-cants were married was fundamental tothe case and radically changed thenature of the decision. Different stan-dards apply to married and non-marriedcouples.

There must be greater emphasis placedon the rights and interests of children inproceedings concerning them. Therehas been some attempt by the judiciaryto protect the natural and imprescript-able rights of the child, (which can findsupport in Article 40 (iii) of theConstitution, relating to the personalrights of the citizen).

In the unusually positive example of F.N.E.B. v CO, HO and EK [2004], a HighCourt family law (guardianship and cus-tody) matter, Ms Justice FinlayGeoghegan gave strong support to theConstitutional rights of children to havetheir wishes considered. In this case thejudge met with the two children

involved (aged 14 and 13) in her cham-bers, finding that they were both of anage and maturity where it was appro-priate to take their wishes into account.Their wishes formed the basis of thejudgment which was then handed down.The significance of this case can not beoverlooked in the context of theEuropean Convention on Human Rightsand Brussels II Convention (a)/bis whichnow form part of Irish law. Under theECHR we have an obligation to protectand promote the voiceless in society.

In AnnÕs case, the childÕs rights wereentirely subsumed by otherConstitutional factors.There is a press-ing need for Constitutional change toensure consistency, otherwise hundredsof children who have been adopted orplaced in foster care in Ireland will con-tinue to have an uncertain legal status.In a memorable part of the SupremeCourt judgment, McGuinness J said thatthe only voice that had not been heardin the course of the proceedings wasthe voice of the child:

It is perhaps striking that the one per-

son whose particular rights and inter-ests, constitutional and otherwise,were not separately represented,whether by solicitor and counsel orthrough a guardian ad litem, was thechild herselfÉ It would be disingenu-ous not to admit that I am one of theÒquartersÓ who have voiced criticismof the position of the child in theConstitution. I did so publicly in thereport of the Kilkenny Incest Inquiryin 1993.The present case must, how-ever, be decided under theConstitution and the law as it nowstandsÉ . With reluctance and someregret, I would allow this appeal.

need to refocus on child rights

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A copy of the judgement in N. & anor. -v- Health

Service Executive & ors. can be found at

http://www.courts.ie/ under

Judgements by Year > 2006.

88 F L A C N E W S l A P R I L – J U N E 2 0 0 7


FLAC hosted a seminar on the useand potential of amicus curiaeinterventions on 30 April. Amicus

curiae briefs are filed in court proceed-ings by individuals or groups who are notparty to a lawsuit, but who have a stronginterest or expertise in the issues in thecase and are invited by the court, are per-mitted by law or petition the court tomake an intervention in the action. Theamicus is considered to be a "friend ofthe court".

Speakers for the event, introduced byFLACÕs Michael Farrell, were Phil Shiner, asenior solicitor with UK-based firmPublic Interest Lawyers, Karen Quinlivan,a practicing barrister in Northern Irelandwho has acted in a number of interven-tions on behalf of the Northern IrelandHuman Rights Commission, and EilisBarry, Senior Legal Advisor with theEquality Authority,who has experience of amicus curiae applications in Ireland.

Phil Shiner: The Importance ofThird - Party Interventions inPublic Law & Human RightsCasesPhil Shiner gave an account of his exten-sive experience of interventions in caseswhere human rights are being violated.He focused on cases that raised impor-tant constitutional law and internationallaw dimensions. His work encroacheson unknown legal territories by challeng-ing the current political climate.

In many cases there are no existingprecedents that can be relied on, asdomestic,European,and International lawcan be lacking. Al Skeini and Gentle &Others are two examples of PhilÕs case-work.

Al Skeini:The Al Skeini case focuses ona British national, Baha Mousa, who wastortured to death while in detention inBasra, Iraq in 2003. Photographsshowed that detainees there were verybadly abused. In this case Phil acted totest vital points of law: Did the HumanRights Act apply extra-territorially inSouth East Iraq? Did the EuropeanConvention on Human Rights apply?

Before Phil ShinerÕs team initiated thejudicial review, the authorities hadclosed the investigation. Only one sol-dier pleaded guilty to inhumane treat-ment. It is clear from the judgment thatMousa died from attacks by multiplesoldiers who have not been chargedbecause, as the judge put it, the rankshad closed.

(As an update, on 13 June 2007 theHouse of Lords ruled that the HumanRights Act applies to British soldierswho imprison detainees during militarycampaigns abroad. The full implicationsof this judgment are only emerging, butPhil has described it as Òa breakthroughdecisionÓ.)

Gentle & Others:The families of sol-diers killed in Iraqare taking this case.They contend thatArticle 2, the right tolife, carries with itprocedural obliga-tions to have aninquiry which willanswer the funda-mental question ofwhether their lovedones died in circum-stances where themilitary orders wereillegal.

Gentle & Others is an example whereintervention was actively discouraged.Phil felt that the strength of the casewas that he was acting for soldiers notIraqis. Thus there was a desire to pre-vent groups coming in with all sorts ofdifferent agendas, which would ulti-mately be unhelpful to the familiesÕcase.

Essential to PhilÕs work is bringing togeth-er the relevant organisations to argue theintervention. For example, he is in nego-tiations with Greenpeace to intervene inthe governmentÕs nuclear programme.He believes passionately that NGOs andother bodies have something different tobring to the argument, such as the weightof public opinion. He does not believe inintervention for the sake of it but ratherthat intervention should come in a smallnumber of cases so as not to bring thetechnique into disrepute.

Karen Quinlivan: Third Part yInterventions — the NorthernIreland ExperienceKaren Quinlivan gave an overview ofhow amicus curiae interventions havedeveloped in Northern Ireland. She con-centrated on its effectiveness as a strate-gy and whether interventions should beoral or in writing. She outlined caseworkin which she has been and some mile-stones in the development of amicus curi-ae in Northern Ireland.

Karen rates the cases taken prior to theHuman Rights Act and the EuropeanConvention as successful overall. Theseearlier cases were an opportunity for theHuman Rights Committee (HRC) tointroduce European law concepts andcomparative law standards to theCourts. This heightened the awarenessof judiciary and practitioners as to howinternational standards can be used toassist cases. Karen explained that Òthereis now comparative openness to the con-cept of interventionÓ in NorthernIreland.

The case of Treacy & MacDonald wastaken by two successful applicants to thesenior bar who were challenging the obli-

FLAC seminar on amicus curiae

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gation to make a declaration of loyalty tothe Queen. The HRCÕs submissionsfocused exclusively on internationalhuman rights standards, while the appli-cantsÕ submissions were broader ranging.

At the same time, the HRC intervened inthe case of Adams v DPP in which a HighCourt judge had determined that policeofficers had assaulted an individual in cus-tody. He was awarded £30,000 in dam-ages due to injuries sustained. The DPPdecided not to prosecute despite thedecision that the police were liable.While the focus of the case was on thefailure of the DPP to give reasons for itsdecision not to prosecute, the HRCfocused on issues to do with Article 3rights: the right not to be tortured andthe right to a proper and effective inves-tigation of the circumstances in whichsomeone sustains ill treatment at thehands of the security forces.

The upshot of the inquest into the 1998Omagh bombing was that, fromSeptember 2000 through to June 2002,the HRC could not intervene. But thereis now comparative openness to the con-cept of intervention. This is undoubtedlybolstered by the House of Lords judg-ment giving sanction to the concept andby the fact that the House of Lords itselfregularly welcomes intervention inimportant cases, especially by NGOs.

Eilis Barry: Amicus Curiae — TheExperience of a Statutory Body

Eilis Barry provided a factual account ofthe experience of the Equality Authorityin relation to amicus curiae interventionsand gave a backdrop to the developmentof amicus curiae in Irish law.Unfortunately amicus curiae is not asdeveloped here as it is in the UnitedKingdom, or Northern Ireland, but thecomparisons between the jurisdictionscould assist in furthering its use in thisjurisdiction.

Eilis split the concept of amicus curiaeinto two models: the individual enforce-ment model and the adversarial model.The individual model draws strengthfrom developing concepts of equality, inparticular European anti discriminationlaw. The individual case can have exten-sive legal and social effects as it tests andclarifies the content of existing laws, itraises issues publicly and prompts nation-al debate. This in turn heightens aware-ness of the legislation and, hopefully,encourages compliance with it, stressingthat Òit raises issues publicly and promptnational debate.Ó

However, Eilis stated that whether thepotential will be realised depends on anumber of factors, such as the opennessand willingness of the courts to allowamicus curiae applications, the strength ofopposition by potential respondents,recognition that opposing the applicationwill result in considerable delay to theplaintiff, and obviously the quality andeffectiveness of the amicus curiae. Lastly,

she cited the capacity and resourcesavailable so that individual cases can bebrought forward and pursued.

EU directives recognise the need for ami-cus curiae type applications. However, atpresent there is no system of notifyingrelevant NGOs or bodies like theEquality Authority about the possibility ofintervention. Eilis suggested that theEquality Authority and the LabourCourts themselves could notify the rele-vant body. Also, there are no statutoryprovisions for the granting of leave tointervene as an amicus curiae, except inrelation to the Irish Human RightsCommission and s8 of the Human RightsAct 2000.

Overall, the speakersÕ expertise providedan excellent insight into the concept ofamicus curiae interventions. Feedbackfrom attendees has been very positive,with delegates commenting that theinputs clearly demonstrated thestrengths and weakness of such interven-tions, highlighting obstacles that can cropup for the intervener. It is hoped that thisseminar will help evolve the use of publicinterest law in Ireland.

interventions held in Dublin

For more information see:www.publicinterestlawyers.co.uk

www.equality.iewww.nihrc.org


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FLAC Volunteer training in criminal law

I t may not be the ambition of everylawyer to practice criminal law, butit is an area which most people

regard with curiosity if not fascination. Itis also an area of practical importance toFLAC volunteers. The latest trainingseminar for FLAC Volunteers wasdevoted to this area of law and was heldon 16 May in the Distillery Building,Dublin 7.The three speakers dealt withtheir respective topics expertly and theseminar was extremely well attended byvolunteers.

Mary Rose Gearty BL gave an excellentoverview of criminal law for FLAC clin-ics, answering many queries which hadcome in from volunteers in advance ofthe seminar. She stressed the need for acommon sense approach when dealingwith FLAC clients. It is often a good ideato advise the client to discuss a criminalcharge with the Garda�. This will rarelydo harm to a clientÕs case and if theclient is calm, reasonable and apologisesfor the behaviour, it may lead to a minorcharge being dropped, particularly if it isa first offence.

However, Mary Rose said that in gener-al it is usually advisable for a client to getlegal representation in a criminal case.Criminal Legal Aid is widely and readilyavailable if the charges are at all seriousand there is a risk of either a custodialsentence or a reasonably large fine. Aperson who is on a very low income,e.g. €150-€200 per week, will be verylikely to get Criminal Legal Aid even fora minor offence.

In relation to bail, Mary Rose remindedvolunteers that generally speaking bail isan entitlement and not a privilege.However, bail can be refused on twogrounds:

8 if it is believed that the accused willnot appear in court for the trial; or

8 if it is believed that the accused willcommit a serious offence while onbail. If a person is refused bail, theymay appeal to the High Court.

Alleged abuses of G�rda powers may bedealt with by the new office of the

G�rda Ombudsman.The best advice to aclient alleging mistreatment or miscon-duct by the Garda� is that they make awritten complaint to that office and tokeep a copy of the letter. Mary Rosehighlighted the six-month time limit formaking a complaint, although this may beextended by the Ombudsman in appro-priate cases.

FLAC clients often present with querieson sentencing but given the sheer num-ber of variables involved, it is difficult toprovide specific answers. The bestapproach is to determine the maximumpenalty for the offence charged and thenexplain the various mitigating or aggra-vating factors that may apply, such aswhether they have children, act as acarer for someone, or whether theyhave previous convictions.

Catherine Ghent, solicitor with Dublinfirm Kelleher OÕDoherty, spoke on chil-dren / young people and criminal law.She explained that the legislation gov-erning this area is the Children Act 2001with the amending Act of 2006.Catherine explained that since 16October 2006, the age of criminalresponsibility is 12 for most offencesand 10 for some serious offences (e.g.sexual assault).The doctrine of doli inca-pax [literally, Ôincapable of crimeÕ, usuallyreferring to minimum age of criminalresponsibility] no longer applies.

Catherine outlined the features of theGarda Diversion Programme (GDP)which was put on a statutory basis bythe 2001 Act. A child charged with anyoffence must be allowed to avail of thisscheme before the case is heard by thecourt — otherwise the case will bestruck out. To participate, the child oryoung person must take responsibilityfor the offence for which they are cau-tioned.The parents or guardian(s) mustagree to the terms of the caution and,since the 2006 Act, evidence of involve-ment in the GDP can now be used incourt if the child is charged with a sub-sequent offence. More information canbe obtained on the web athttp://www.garda.ie/angarda/juveniles_diversion.html.

Catherine also detailed the rights ofchildren and young people when beingquestioned by police. If a child (definedas age 17 and under) goes to the G�rdastation for questioning, they must betold of their rights.The most importantof these are the right to a solicitor(which should always be requestedspecifically, if not provided) and the rightto have an Ò appropriate adultÓ presentduring questioning. Under the 2006 Act,children may be held for questioning forup to 7 days. In general, it is best toadvise that children not be pressuredinto answering questions; they can latergive a statement to their solicitor.

The session also covered the law relat-ing to Anti Social Behaviour Orders, orASBOs. Children and young peopleaged 12-18 can be issued with aÒBehaviour WarningÓ which lasts for 3months. If the young person does notobey the warning, the next step may bea ÒBehavioural ContractÓ. This Òcon-tractÓ is made at a meeting between thechild, the parent/guardian of the childand the Garda�, and must be called by asuperintendent in charge of a district.The Òbehavioural contractÓ lasts up to 6months and can be renewed for anoth-er three months. If the ÒcontractÓ isdeemed to have been broken by theyoung person, then the G�rdaSuperintendent may refer the child tothe G�rda Juvenile DiversionProgramme, or apply to the ChildrenÕsCourt for a ÒBehavioural OrderÓ, lastingup to two years. Behavioural Orderscan be appealed within 21 days of theperson receiving the order.

If the young person does not complywith the order, the penalty will be a fineof up to €800 and/or detention in achildrenÕs detention school for a maxi-mum of 3 months, or both.These penal-ties can be challenged, and if a youngperson is in this situation he or sheshould be urged to obtain representa-tion through the Criminal Legal Aidscheme.

Finally, Eoghan Cole, BL addressed theseminar in relation to a subject oftenencountered in FLAC clinics — Road


centres on legal practice, children, RTOs

Volunteers receive Unsung Heroes awards

Traffic Offences (RTOs). He explainedthat, generally, the best advice to a clientfacing an RTO is to turn up to court andif responsible, admit to the charge.Those who come to court for theirscheduled hearing usually receive a less-er penalty than those who do not. Theclient may be able to put forward a goodexcuse!

In relation to penalties, usually a personwill not receive a custodial sentence forRTOs, especially for first offences.However, if a person is charged unders112/113 (joy-riding), s53 (dangerousdriving) or s56 (driving without insur-ance), a custodial sentence is possibleand they should be strongly advised toengage legal representation. Eoghan alsoadvised that if a client brings a summonsfor a minor offence with them to theFLAC clinic, the volunteer should checkwhether the summons was issued with-in 6 months of the offence as this isrequired.

If a client has been issued with a chargesheet then they are technically on bailand will need urgent legal advice. Peoplewho have been charged can sometimesmisinterpret the bail bond payable as afine and not realise they are actually on

bail.Thus if the person does not turn upin court, a bench warrant may be issuedfor their arrest.

Once a person has been found guilty ofan RTO and a penalty imposed by theCourt, they can apply to appeal the deci-sion or have it set aside. An appeal canbe made to the Circuit Court within 14days of conviction, and this decision willbe full and final. A person has 21 daysfrom notification of a penalty to applyfor the decision to be set aside.This is asimpler process — applications can bemade by filling in a form at çras U�Dhalaigh in the Four Courts. If the mat-ter is successfully set aside, it is as if theconviction was never imposed and thecase goes back to the District Court.The person then still has a right ofappeal if convicted again.

As regards the imposition of penaltypoints, a fixed charge notice detailing thepenalty or fine imposed must be issuedin the first instance, unless the offencecharged requires a mandatory courtappearance. The accused person thenhas 28 days to pay the fine. If he/she pays,he/she is accepting the charge and allow-ing the points to be endorsed on his/herlicense record. If the fine is not paid

within 28 days, the person has a further28 days to pay an increased fine andavoid court proceedings. If the clientdoes not pay within this period, he/shemay be summonsed and may run the riskof a higher number of penalty points anda larger fine. If the client did not receivea fixed charge notice, then this fact willusually be accepted as a full defence tothe summons (according to the RoadTraffic Act). Eoghan pointed out that if aperson commits a number of penalty-point offences at the same time, they willreceive only the number of points forthe offence which carries the highestnumber of points (more information canbe found at http://www.penaltypoints.ie).

Proposals for the subject of the nextFLAC Volunteer training event areemployment law, the G�rda Ombudsmanand how to advise clients facing debtenforcement procedures. Suggestionsregarding topics and expert presentersare always welcome!


If you are interested in volunteer-ing for FLAC, please contact us by

phone at 01-874 5690 or by e-mail at [email protected]

Dublin City Council runs an annual ÔUnsungHeroesÕ award to honour volunteersnominated for their work with voluntary

organisations. Selected nominees are enrolled intothe Unsung Heroes Roll of Honour in the MansionHouse on Dawson Street.

FLAC nominated several of its dedicated volun-teers who were then invited to the award cere-mony in the Mansion House on 5 June.These were:Aoife McCann, Aileen Fleming, Paddy Keogh, JoePower, John Langan, Caragh Cunniffe, Kevin Duffy,Kevin Baneham, Niall Buckley, Kim Walley, MichaelDeasy, Noel Doherty, John Hussey, David Kent,Kenneth O’Sullivan, Peter Murray, John O’Connell,Maurice O’Connor, Marissa O’Keefe and MarianPyne.

Congratulations to all those involved!

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Catherine has been an internwith FLAC for almost a year.Interns take on various roles

within the organisation, from adminis-trative duties to assisting the full-timestaff and research work. Not all internshave a legal background, for examplethere is also a library intern and a sta-tistical intern.The aim of the internshipprogramme is to allow graduates toexperience work in the NGO sector; inreturn FLAC is provided with supportand assistance.

Catherine studied law at UCD andcame to FLAC shortly after graduation.Looking back, she says that she had notrealised how far the study of law in col-lege is removed from the reality ofpractice.

ÒWhat FLAC has shown me is how touse law as a tool to achieve real bene-fits for people. And FLAC extends theuse of this tool to those who do notusually have the means to wield itÓ, shesuggests. Because her legal work nowisnÕt as theoretical, she thinks thatFLAC has imparted to her an interestin social policy and campaigning thatshe had previously not explored.

At present her day is quite varied buttasks change throughout the internship.She spent a few months providinginformation to the public on the tele-phone information and referral line.Catherine says that this forced her Òtoquickly pick up information on a broadrange of legal subjects, particularly onthe practical side of law.Ó She hasworked on articles for FLAC News andresearched the recently publishedseries of legal information leaflets.

She has particularly enjoyed assistingPaul Joyce in his study into the Irishdebt enforcement procedure, which isto be published in the autumn.Currently she is involved in FLACÕscampaign to improve the system of civillegal aid, where she gives advice to peo-ple who have trouble applying for legalaid. She has also worked on test cases

that FLAC has brought in this area.

She feels the most positive thing abouther internship work has been been theability to work on her own initiative, aswell as the variety of work and theunexpected legal queries FLACencounters which are passed aroundthe office — these create an Òenergy-ballof knowledge and perspectivesÓ.

As she comments,Òone thing about theinternship is that because of the smallworking environment you have the abil-ity to work alongside experts and availof guidance, yet your input is as valuedas anyoneÕs.Ó

One of the aims of the internship is toprovide opportunities for the intern tofurther their legal knowledge and train-ing. To this end, FLAC encouragesattendance by interns at conferencesand events, such as those organised bythe Law Society and the NGO commu-nity. Catherine completed a course onsocial welfare law and also attendedvarious credit and debt law confer-ences as this is of special interest toher.

Where would Catherine like to seeFLAC developing in the future? Shecontends that she would like to see thedevelopment of the Public Interest LawNetwork (PILN) and the taking ofmore strategic cases, not just by FLAC.Hopefully FLACÕs initiatives will provefruitful in this area.

Prior to her internship, Catherinethought that she would pursue a careeras a solicitor or work in a corporatelegal department. However, in part dueto her experience at FLAC, she hasdecided to pursue the route of becom-ing a barrister. She is currently prepar-ing for the KingÕs Inns exams.

We wish her all the best with this andwho knows, we hope to have Catherinevolunteer for FLAC as a barrister in thefuture!

Focus on FLAC staff: Catherine O’Donovan

If you are interested in joiningFLAC as an intern,

please contact us by phone at 01-874 5690 or by e-mail at

[email protected]


2006 Annual Statistical Report shows state stillneglecting civil legal aid needs of population

One of the core principles ofFLAC is to ensure that disad-vantaged people can effective-

ly access legal services.Thus it is essen-tial that FLAC have an accurate pictureof its service provision and of the legalneed of its callers.The Data CollectionProgramme started in January 2004 andthe information collated from FLACÕsnetwork of centres has greatly assistedFLAC in its ongoing research and cam-paigning efforts to improve the provi-sion of civil legal aid in Ireland.

The main findings from the 2006Statistical Report are summarised here.FLAC would firstly, however, like totake this opportunity to express ourgratitude to the volunteer legal advi-sors for their assistance and commit-ment to the programme. The volun-teers returned a total of 4,353 data col-lection forms to us in 2006.

The Data Collection Programme pro-vided us with information from 30Legal Advice Centres during 2006. Inthe Dublin area, participating centresincluded Adelaide Road, Ballyboden,Ballyfermot, Ballymun, Blanchardstown,Clondalkin, Crumlin, Dundrum, Finglas,North King Street, Prussia Street,Pearse Street, Rathmines, Tallaght,Whitehall/ Beaumont and the NationalAssociation for Deaf People (NAD).

Among the participating centres fromthe rest of the country were Bantry,Ballina, Castlebar, Cork City, Clonmel,Listowel, Navan, Naas, Newbridge,Sligo, Thurles, Tralee, Tullamore andWexford.

Areas of law discussed withclientsOne-third of all callers to FLAC centresduring 2006 called to discuss family lawmatters, while the remaining almosttwo-thirds of callers sought legal infor-mation on non-family civil legal matters(see Fig. 1). Yet the figures from theLegal Aid BoardÕs Annual Report for2005 indicate that 91.25% of litigationservices and 70.53% of the cases involv-

ing legal advice provided by the LAB toits clients were in the area of family law.

For this reason, FLAC is concerned thatthere is a vast area of unmet need inthe StateÕs provision of civil legal aid inIreland.

The most common non-family law mat-ter was employment law, with one inten callers to FLAC centres in 2006seeking legal information in this area.Approximately one in every twelvecallers sought legal advice on succes-sion/probate and similar numberssought advice on housing and propertylaw.

Whether callers have a solicitorMore than three out of every fourcallers to FLAC centres in 2006 did nothave a solicitor. Of the less than one-quarter of callers who had a solicitor,the majority had a private solicitor —only one-fifth of those who had a solic-itor were clients of a Legal Aid Boardlaw centre.

Finding out about FLACCallers found out about FLAC througha broad range of different sources.Citizens Information Centres (CICs),where FLAC centres operate on a reg-ular basis, were the main source of


20040

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2004

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Family Law Non Familycivil matters

Criminal Law

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Legal InfoPrivate SolicitorLegal Aid BoardAnother AgencyFamily MediationFLAC OfficeMoney Advice & Budgeting Service

1% 2%

33%

32%

14%

16%

2%

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referrals for FLAC. Word of mouth(which includes clients who previouslyused FLAC service and referrals fromfriends and a family member) was thesecond most cited way of learningabout FLAC.

How FLAC helpedCallers to FLACÕs network of centrescan get access to first stop legal infor-mation about general rights and enti-tlements (see Fig. 2). In 2006 one inthree callers were provided with legaladvice and information by FLAC vol-unteer advisors.The remaining callers,as well as being informed about theirlegal query, were referred on to theLAB Law Centres, other statutoryand/or voluntary organisations, a pri-vate solicitor and/or FLAC HeadOffice.

Exploring callersÕ experience inaccessing legal aid8 One in five callers to FLAC cen-

tres in 2006 who answered thisquestion had previously experi-enced difficulty in accessing legalassistance.

8 Callers were asked whether theyhad ever heard about the LegalAid Board (see Fig. 3). in order toassess general awareness of theLABÕs existence. Of the 1,622respondents who answered thisquestion in 2006, just over half(53.1%) stated that they had neverheard of it while 46.9% said theyhad. This shows that by 2006almost one in two clients calling toFLAC centres did not know thatthe State provides civil legal aid insome cases.

8 The 210 callers who had previous-ly been through the legal aid sys-tem were asked how long theyhad had to wait before they got tosee a solicitor. Figures for 2006show that over 70% of the appli-cants got to see a solicitor within4 months, this was up from justover 50% in 2004 (see Fig. 4).

8 Over 80% of those who hadapplied for legal aid before hadapplied in relation to family law(see Fig. 5).

8 The majority of those who appliedfor legal aid for family law matterswere successful. The resultsshowed that all of the applicantsapplying for legal aid for an immi-gration or refugee law matterwere granted legal aid, while noneof the respondents who hadapplied for legal aid for housing,credit, criminal or property mat-ters were successful (see Fig. 5 forall areas).

8 Of those who were refused legalaid, the main reasons given werethat the client failed the meanstest (30%) or that their matterwas not covered by the statescheme (24%).A number of callershad failed on the grounds of themerits test (14%), but most clients(32%) did not know or had notbeen given a reason.

8 Of the callers who had heardabout the LAB but had neverapplied to the service before, themajority claimed that there wasno particular reason or that theydid not deem it necessary. Only 8clients stated that they did notapply because they thought theywould not qualify, while 5 chosenot to apply due to the waitingtime involved.

FLAC callersÕ demographic profileCallers dropping in at FLAC legal advice


2006 Annual Statistical Report shows state still[continued from page 13]

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Waiting times 2004 (%) 2005 (%) 2006 (%)

Within 4 months 51.5 60.3 71.7

5 to 12 months 25 21.4 10.9

Over 12 months 8.8 6 5.8

Not aware/still on list 14.7 12.3 11.6

Total 100 100 100

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Yes

No


centres come from a wide range ofbackgrounds. Over half of callers indi-cated that they were working either ina full or part-time job, as self-employed,or participating in a CommunityEmployment (CE) Scheme. In relationto the callersÕ household income, inyear 2006 one in three callers said theyhad a gross annual household incomeover Û20,000. One in four was a socialwelfare recipient and almost one in fivehad an income between Û13,000 andÛ20,000 (see Fig. 6).

In 2006, 22% of FLAC callers lived in ahouse or apartment which they ownedoutright without a mortgage. Just over26% of callers lived in a dwelling thatthey own with a mortgage. Just overone-quarter of the callers lived in theprivate rented sector, while just over12% lived in local authority housing.Most callers (83%) to FLAC centres in2006 were Irish nationals.

ConclusionsThe data collected in 2006 showed thattwo-thirds of callers to FLAC centressought legal advice on non-family law

matters. Considering that the Legal AidBoard deals mainly with family law mat-ters, FLAC is concerned that there is agreat deal of unmet legal need.The DataCollection Programme will continue tomonitor this concern in 2007.

One in five callers to FLAC centres in2006 had experienced difficulties inaccessing legal aid.

Two thirds of callers to FLAC centresduring 2006 had a gross annual incomeof less than Û20,000 per year, and wouldface considerable affordability problemsin accessing a private solicitor.

The statistics for 2006 found that justover half of callers to FLAC centreswere not familiar with the LAB services.On a more positive note, we found thatwaiting times with the LAB dropped in2005, and again further in 2006.

FLAC continues to promote equalaccess to justice for all, and to campaignfor the improvement of civil legal aid inIreland. We plan to conduct a surveylater in 2007 to test callerÕs awarenessand perceptions of civil legal aid andexplore their experiences, if any, in deal-ing with the LAB. We look forward todiscussing the findings in 2008.


neglecting civil legal aid needs of population

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Was legal aid granted? Yes No Waiting list No response Total

Family law 82 30 10 13 135

Immigration/refugee law 12 - - - 12

Housing - 3 1 - 4

Credit/debt law - 2 1 - 3

Criminal law - 2 - - 2

Property - 1 - 1 2

Other 2 1 - - 3

Total 96 39 12 14 161

2004

2005

2006

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35

30

25

20

15

10

5

0

2004

2005

2006

I n the last edition of FLAC News, wepublished a call to politicians to bringabout changes which would drive

forward FLACÕs work. These included:

8 Recognition of the right of access tojustice

8 Improvement of Civil Legal Aid8 Reform of debt enforcement

procedures8 Restoration of Child Benefit as a

universal payment.

FLAC compared and contrasted theelection manifestos of the main politicalparties to analyse where our call forchange was supported in the run-up tothe election.

Concretely, as regards access to jus-tice, the Green Party proposed to 8 increase funding for FLAC and

existing community law centres;8 examine the expansion of commu-

nity law centres;8 address barriers to access to the

legal professions, specifically amongdisadvantaged, minority communi-ties.

Only one other party mentioned accessto justice specifically: Sinn Fein proposedto legally recognise the right to accessjustice and indeed the right to legal rep-resentation.

As regards civil legal aid, again theGreens were to the fore, suggesting areview of the cut-off levels currentlyused when means-testing free legal aidfor civil cases. The Labour Party prom-ised to review the current structure ofthe Legal Aid system so as to improveaccess to the courts, explaining thatÒ[w]e believe that wherever possible,child custody and access cases should bedealt with through mediation and thatthe state should develop appropriatemediation structures.Ó Sinn Fein verynotably undertook to legally recognisethe right to access justice and the rightto legal representation, and to expandthe fund for Civil Legal Aid accordingly.They would introduce Legal Aid reformsin keeping with recommendations byFLAC to enable more people to chal-

lenge violations of their economic andsocial rights. Labour undertook toreview the current structure of the LegalAid system to improve access to thecourts.

All parties failed to address consumercredit as an election issue, which is sur-prising given the unprecedented level ofconsumer debt in Irish society — thisthreatens to spiral into a major nationalcrisis in the coming months unless meas-ures are taken now to avert it. Similarly,there was no specific mention ofreform of the law on fines in anyof the partiesÕ manifestos. However, thegovernment did introduce a fines bill thispast January which went nowhere butindicates there might be a chance of leg-islative change in this area in the nearfuture.

The area of reform of deb tenforcement procedures featuredFianna FailÕs sole concession to FLACpolicy, with regard to the Money Adviceand Budgeting Service (MABS).The partyacknowledged the success of MABS andpledged to bring in legislation for a newstructure with Ònational leadership forthe 21st century which maximises andrecognises the current local voluntaryinvolvement together with a strong pro-fessional role aimed at continuing toprovide strong and confidential supportfor its clients.Ó It also promised to giveMABS a central role in increasing accessto affordable credit for low incomeearners and social welfare customers.However, MABS has been waiting to beput on a statutory footing since itsestablishment 15 years ago in 1992 andsuch promises have been heard before. Itremains to be seen whether the maingovernment party will now live up tothis undertaking.

FLACÕs latest campaign is aroundrestoring Child Benefit as a uni-versal payment (see cover article formore details).This is a direct way of tack-ling child poverty and the organisationhas had some very positive responsesfrom individuals across the political spec-trum. In the election manifestos, however,while there were some moves towards

tackling child poverty it was not alwaysvery concrete. Most promisingly, theGreen Party pledged to make child ben-efit a universal entitlement for all, not justEU citizens and have progressive policiesto tackle child poverty. Labour decriedchild poverty as an Òincalculable loss ofhuman potentialÓ that Òstores up prob-lems for which society continues to payfor decades.Ó Sinn Fein planned to intro-duce a standard statewide school break-fast and lunch programme to supplynutritious food free of charge to school-children — the party also has progressivepolicies to tackle child poverty, such asextending the new early childcare sup-plement to include children aged 6 to 12.

Given the final election outcome yieldinga coalition government of Fianna Fail,Progressive Democrats and the GreenParty, with the support of some inde-pendents, it is interesting — and hopeful -to note that one of the ruling partieswas strongly behind many of our pro-posals in its pre-election platform. TheGreen PartyÕs election manifesto cov-ered many issues that coincided withFLACÕs submissions. If access to justiceand real change in the areas identified byFLAC are to become a reality, it is crucialnow that the Greens push through theiragenda.

While there was much to praise in thevarious party platforms, there were alsomany gaps, which is a major cause forconcern. It shows that there is a lot ofground to make up before the main polit-ical parties in Ireland even take cogni-sance of some of the most serious issuesaffecting society today. Regrettably, itseems that only those issues that regu-larly make the media headlines attractedsome partiesÕ attention. For those whoare struggling to access justice or toovercome obstacles such as child pover-ty or consumer debt, sadly it appears thiswill continue for the foreseeable future.

FLAC will continue to press for reformand calls on all those who want to seereal change in Irish society to getinvolved — check our website atwww.flac.ie or call us at 01-874 5690.



EEddiittoorriiaall ::

Election Ô07 — analysis & prospects for change

Documents

Flac news vol17 no2 apriljune