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The Challenge of Change

FLAC’s call to politicians 2007I n light of the forthcoming general

elections, FLAC is calling on politi-cians to examine a few key points

that will help create a more just andequal Ireland.

In the run-up to the elections — as oftime of writing, no date has been set butthey are widely expected to take placein late May — FLAC has prepared a posi-tion paper on issues that the organisa-tion believes are of crucial importanceto Irish society. In particular, theseissues are fundamental for those whohave been marginalised and made extravulnerable through the denial of accessto justice. FLAC has been asking all themajor opposition parties to considerincluding these issues in their policiesand programmes for government.

The recommendations revolve aroundone central issue — access to justice forall people in Ireland — while focusing ona number of areas in particular. FLAChas asked politicians to promote thefundamental human right of access tojustice and has pointed out inequalityand discrimination in the law aroundcivil legal aid, consumer debt and creditlaw and social welfare law that have a particularly damaging effect on

vulnerable groups of people.

Recognition of the right of accessto justiceWhile it is a fundamental and interna-tionally recognised human right,enshrined in our own constitution and inEU law and policy, access to justice is notalways well acknowledged or respectedin Irish governmental planning — which isa short-sighted and, in the long-term,costly policy mistake. It can lead not onlyto societal injustice, but to greater socialexclusion as law become more distancedfrom people who cannot afford to accessit. Marginalised and disadvantaged com-munities historically do not or cannotaccess lawyers and legal mechanisms inthe ways open to more privileged sec-tors of the community.

Improvement of Civil Legal AidFLAC also raised the continued inequali-ties in access to legal services. Civil LegalAid, as opposed to criminal legal aid, isstill not available for many who need it inorder to vindicate their right of access tojustice. The state body responsible, theLegal Aid Board, does not receive thefunding it needs to provide the servicethat is required and many people do notknow about the service that is — or

should be — on offer. Some importantareas of law are statutorily excludedfrom the state scheme while there is anoverwhelming emphasis on family lawalmost to the exclusion of all other areasof civil law where there is substantialunmet legal need. It is unfair that a per-son can get legal services for some legalproblems, but not others.

Reform of debt enforcementproceduresAs well as warning that there are still gapsin the laws on consumer credit, FLAC ishighlighting the deficits in legislationaround debt enforcement. While it haswidely been acknowledged that con-sumer debt is a growing national prob-lem, underlined by the stark rise in thenumber, profile and amount of indebt-edness of clients of the Money Adviceand Budgeting Service (MABS) and callsto FLACÕs telephone line and advicecentres, the legal system in relation todebt enforcement remains unchanged —in the words of FLACÕs senior policyresearcher Paul Joyce on a recent RTEPrime Time programme, Òa 19th centu-ry debt enforcement procedure in a21st century consumer credit marketÓ.

(continued on back page)

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. 1

F L A C N E W S l J A N U A R Y - M A R C H 2 0 0 722

iinn tthhiiss eeddiittiioonn......The Challenge of Change: FLACÕscall to politicians 2007 1 & 16

KAL case - SupremeCourt appeal lodged 2

FLAC takes pensioners case to Europe 3

New legal informationleaflets available 3

Interculturalism - An Integration Approach 4

Restore Universal Child Benefit! 5

Athy womenÕs network launch 5

One Family: Children ÔinvisibleÕ in IrishFamily Law proceedings 6-7

Lydia Foy case starts again 8

Proposed new legal aid arrangementsin childcare proceedings 9

Legal aid exclusions 9

TCD student seminar on Travellersand Public Interest Litigation 10

Remembering Dave Ellis 11

Dealing with vulnerable clients - law reform in sight? 12-13

Amicus curiae seminar 13

A letter from India 14-15

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

Editing & Layout: Yvonne Woods

Contributors: Noeline Blackwell,Michael Farrell, Paul Joyce, EdelHackett, Jackie Heffernan, CatherineHickey, John McDaid, ElizabethMitrow, Kensika Monshengwo,Marcela Rodriguez-Farrelly, RitikaVaderaa,Yvonne Woods

ISSN 07914148

Photos: Irish Independent, KALInitiative, Peter Kwasnik, One Family,Printwell, Derek Speirs, RitikaVaderaa

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

Appeal to Supreme Court lodged for recognition of same-sex marriage

Drs Katherine Zappone and AnnLouise Gilligan lodged theirAppeal to the Supreme Court

on 22 February 2007 on the groundsthat their High Court case for recogni-tion of their Canadian marriage waswrongly decided.

They are hopeful that the SupremeCourt case could be heard before theend of 2007.

Ò We believe that it is in our interest andin the public interest to have this issueclarified in the highest court of the land,ÓDrs Zappone and Gilligan stated.

In her High Court judgment on theircase, Ms. Justice Elizabeth Dunne foundthat the Irish Constitution meant thatmarriage was to be confined to personsof the opposite sex. She also found thatthe refusal to permit same-sex couplesto marry in Ireland did not breach theEuropean Convention on Human Rights.During and following the High Courthearing, some of the main points madeby the plaintiffs were:

8The constitution is a living docu-ment, which is interpreted in lightof social change. Thus the constitu-tion is open to new interpretation.

8Since the adoption of theConstitution there has been therecognition and scientific acknowl-edgment of the normalcy of homo-

sexual identity. This is independentof any perceived need for a socialconsensus on the meaning of mar-riage.

8That the right to marry is a person-al right which derives from Article40.1.3 of the Constitution ÔTheState guarantees in its laws torespect, and as far as practicable, byits laws to defend and vindicate thepersonal rights of the citizenÕ aswell as being derived from Article41 (The Family).

8The institution of marriage shouldinclude same sex couples, becauseof the personal right to marry, andinherent nature of the institution ofmarriage itself. There is no identifi-able harm to ÔmarriageÕ if same sexcouples are allowed to marry.

Writing in the Irish Times following theHigh Court Case, Ursula Kilkelly, SeniorLecturer in Law at University CollegeCork, stated that the judgment did notaddress the issues at the heart of thecase. In particular, she said, it offered noclear evidence of what legitimate aim isbeing served by denying same-sex couples the right to marry, and more-over, whether excluding them from mar-riage is a proportionate way of achievingthat aim in all circumstances.

Edel HackettKAL Initiative

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FLAC and the InternationalFederation of Human Rights(FIDH) have taken the first ever

complaint against Ireland on an eco-nomic/social welfare issue under theRevised European Social Charter. TheCharter is the economic and socialequivalent of the European Conventionon Human Rights and its implementa-tion by member states is monitored bythe European Committee on SocialRights.

The complaint is over theGovernment’s refusal to extend thefree travel scheme for people over 66to Irish pension holders who are notresident in Ireland during their periodicvisits to this country.

The free travel scheme was introducedin 1967 for all holders of Irish old agepensions. Over the years it was extend-ed to cover other persons over 66 liv-ing in Ireland but it was always inextri-cably linked to the Irish old age pensionand free travel passes were given auto-matically to recipients of the Irish oldage pension on reaching 66. However,people who have paid pension contribu-

tions and are in receipt of Irish contrib-utory pensions, but who live abroad, areexcluded from the scheme when theyreturn on holiday or for family visits etc.This is a significant grievance, especiallyfor Irish pensioners who live in Britain,many of whom are in poor circum-stances and cannot afford the cost ofinternal travel here on top of the fare toIreland. It is Government policy toencourage emigrants and non-citizenswho have lived in Ireland to return tovisit family and friends and the 2002Report of the Taskforce on Emigrantscalled as a matter of urgency for thefree travel scheme to be extended toinclude them.

The Government has argued that if theyextended the free travel scheme to Irishsenior citizens living abroad, they wouldhave to extend it to all senior citizens inthe EU, which would be bankrupt thepublic transport system. However, anEU Commission spokesman saidrecently that if the scheme was extend-ed to holders of Irish contributory pen-sions, regardless of nationality, thatwould not cause any problems.

The FLAC complaint was filed inFebruary last. Complaints under theSocial Charter must be lodged througha recognised international trade unionor NGO, so the Paris-based FIDHjoined with FLAC to lodge it and hasprovided FLAC with valuable assistanceand advice about the process. TheCommittee on Social Rights will nowseek a response from the Government,after which they will decide if the com-plaint is admissible and, if so, go on toconsider its merits.

This is an exciting development asaccess to the Committee on SocialRights is relatively cheap and easy.There is no provision for costs orders,so there is no risk of incurring a massivebill for the state’s costs if the complaintis unsuccessful. And there is no require-ment to go through the domesticcourts before lodging a complaint, so itis a lot quicker than applying to theEuropean Court of Human Rights.Hopefully, other groups which want topursue social or economic complaintswill also make use of this new mechanism in the future.

FLAC takes pensioners case to Europe

Law for everyone - new legal information leaflets available


FLAC has produced a range of information leaflets on var-ious areas of law.These cover basic information in eacharea, explaining how the law works and providing a step-

by-step approach to the issues involved where appropriate.

"We believe the law should be for everyone - and this meanseveryone should be able to understand how it works,"explains FLAC’s Director General Noeline Blackwell.

The leaflets are funded by the Citizens Information Board andwritten in clear, accessible language.They cover areas such asDivorce and Wills as well as explaining how to change yourname by Deed Poll or take out an enduring Power of Attorney.

"FLAC’s aim is to open law up to people," says Blackwell, "andwe are grateful to have had the chance to put these leafletsout there for the public - we hope that people will find themuseful."

The leaflets are available to download from the FLAC websiteand in print format from Citizens Information Centres aroundthe country and the FLAC office.

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Whether one looks at itthrough Irish binoculars orthrough European tele-

scopes, we are already living in a multi-ethnic society. This large entity calledEurope, with its 27 different nationalities,is by definition a multi-cultural, multi-faith, multi-lingual and multi-ethnic space.Now the issue is not to force people toembrace this diversity, but to acknowl-edge its existence.

Some would evidently welcome thatdiversity and some would certainly rejectit, but the fact remains that ethnic diver-sity will be the feature of European andby extension Irish life in the years tocome. The challenge is to find a way tolive or work in this multi-cultural, multi-faith, multi-lingual and multi-ethnic space.Minority ethnic groups includingTravellers have been asked time and againto integrate into Irish society. What dowe mean by integration? Integration canmean different things to different people.LetÕs look at three main approaches tointegration:8 Assimilation8 Multiculturalism8 Interculturalism.

AssimilationFor many people, the word integrationmeans assimilation; to assimilate impliesto become as similar as the majority eth-nic group. ÒWhen in Rome, do as theRomansÓ is the popular phrase used inthis context, or one size fits all! If theycould just behave like us, the majority,then everything would work out fine forus and them.When one applies that logicto the other areas of diversity, such asdisability, family status or skin colour, theshortcomings of this viewpoint becomeapparent.

In this approach, ethnic diversity is oftenseen as a problem or a cause of discom-fort. It is expected that minority ethnicgroups learn to become like the majorityethnic group; the idea is to make minori-ty ethnic groups as invisible as possible.This view may appear disturbing to cer-tain people because of the implicationthat the culture of the minority ethnicgroup has nothing to offer and that itshould disappear to give way to the

majority culture. If Travellers could justlive in housesÉ

MulticulturalismMulticulturalism considers different cul-tures, ethnic and religious groups sharingthe same territory as positive and seeksto make their lifestyle as visible as possi-ble by recognising and celebrating cultur-al diversity and supporting their econom-ic and social integration into society.Many European countries, such as UnitedKingdom or The Netherlands did adopt amulticultural; integration of minority eth-nic groups was expected to happenalmost naturally. Unfortunately, in manyrespects, it did not.

In a nutshell, this approach was focusingon cultural differences, but did not putemphasis on policies that promotesinteraction and shared values. Sometimesseparate and isolated communitiesemerge from that process.

InterculturalismInterculturalism is about interaction. Itappears to be a more thought outapproach. It is about ensuring that cultur-al diversity is acknowledged and cateredfor. It is about inclusion for minority eth-nic groups by design and planning, not asa default or an add on. The concept ofInterculturalism underpins theGovernmentÕs National Action PlanAgainst Racism (NPAR) and is also wide-ly advocated by the EuropeanCommission in its policy statements andthrough specific programmes.

An intercultural approach recognises thatpeople should have the freedom to keepalive, enhance and share their culturalheritage. Interculturalism suggests theacceptance not only of the principles ofequality of rights, values and abilities butalso the development of policies to pro-mote interaction, collaboration andexchange with people of different cul-tures, ethnicity or religion living on thesame territory. FurthermoreInterculturalism is an approach that seesdifference as something positive that canenrich a society and recognises racism asan issue that needs to be tackled in orderto create a more inclusive society.

ConclusionInterculturalism acknowledges that inte-gration is a Ôtwo way streetÕ and placesresponsibilities on both the majority eth-nic group and minority ethnic groups tocreate the conditions for appropriateintegration. Here is a framework to con-sider in relation to diversity:8 Recognise8 Negotiate8 Accommodate

Talking about Interculturalism means thatpolicies and structures would be put inplace to ensure that interaction is hap-pening between the various ethnicgroups occupying the same space, with-out glossing over the form of discrimina-tion called racism. An interculturalapproach implies tackling the barriers,personal or institutional, that are pre-venting certain groups to access themainstream opportunities.

LetÕs consider the European Union.Which country represents the majorityculture that others should imitate? Whoshould integrate into what? Is it not anexample of different cultures, languages,ethnicities and nationalities sharing thesame space?

If we were to apply the above mentionedframework to the European Union, wewould find out that the diversity ofnationalities, legislations, cultures and his-tories are:8 recognised,8 negotiated through the parliament

and other structures8 accommodated through the adop-

tion directives

Even the common currency retains fea-tures of cultural identities on the tail ofthe coinsÉ If integration can happen ona large scale at a European level, it canalso happen on a small scale in Ireland.

Kensika MonshengwoTraining & Resource Officer, NCCRI


For more information on NCCRIand its work, see the website at

http://www.nccri.ie/

Interculturalism: An Integration Approach


A s part of FLACÕs focus on thereform of social welfare law tobenefit the lives of particularly

vulnerable groups, FLAC launched acampaign to Restore Universal ChildBenefit in November 2006. Since thenthe campaign has successfully obtainedthe support of many organisations,including the Migrant Rights Centre,Integrating Ireland, Immigrant Council ofIreland, Irish Refugee Council, Akidwa,SIPTU, ASTI, USI, INTO, Congress,Vincentian Refugee Centre, to name justa few.

Politicians have also echoed FLACÕs cam-paign. Promoted by Councillor MaryMurphy (Labour), the Social InclusionMeasure Group of the Dublin CityCouncil passed a motion to endorse thecampaign to restore universal ChildBenefit. Nationwide, there has been avery good response from the public andthe media too. FLAC campaign co-ordi-

nator Ms Marcela Rodriguez-Farrelly hasbeen meeting with local groups to speakabout the campaign in different counties,including Monaghan, Sligo, Cork andKildare where the general public gavetheir support to end this discriminatorypolicy and to restore a situation wherechildren are treated equally in respect ofChild Benefit.

Child Benefit (also known as childrenÕsallowance) used to be a universal pay-ment paid to every child living in Ireland,regardless of family income or immigra-tion status. In response to the enlarge-ment of the European Union, on 1 May2004 the Government introduced theÒHabitual Residence ConditionÓ, endingthe policy of universal Child Benefit pay-ment to all children in the State.

This has created an inequality betweenchildren living in Ireland. It shows clearlythat government immigration policy

takes priority over childrenÕs rights. Itgoes against international human rightslaw and even the governmentÕs own stat-ed policy on ending child poverty. FLAChas worked extensively with familiesseeking Child Benefit. This is whatMonica, an asylum seeker told MsRodriguez-Farrelly: ÒIf we got ChildBenefit, I would buy a pair of shoes formy daughter Marina. Her shoes brokethree months ago, and I cannot buy anew pair yet. She goes to school with herbroken shoes.Ó

FLAC invites everyone to join its cam-paign and call upon the government torestore Child Benefit as universal pay-ment for all children in the State. If youare interested in learning more abouthow to support FLAC campaign, pleasecontact FLAC at [email protected] andweÕll be happy to send you the campaignmaterial.

Restore universal Child Benefit FLAC campaign continues

On 22 March, FLACÕs campaign co-ordinator MarcelaRodriguez Farrelly and interns Fiona Brady andNnenne Ibezim, attended the launch of WomenÕs

Integrating Network in Athy, Kildare.

WIN, as it is more commonly known, is a local initiative setup by the community under the direction of Frances

Sooney-Ituen. It aims to unite and cel-ebrate the diversity of women in thearea and create links and integrationfor immigrants within the local com-munity. The day itself began with apanel of speakers including AnneBrennan from Integrating Ireland andSalome Mbugua from Akidwa, theAfrican WomenÕs Network. Marcelaspoke about FLACÕs campaign torestore universal Child Benefit.

Following this was an informal talkwhere members of the audience wereinvited to speak about their countryof origin demonstrating the diversityof the network. This was followed bya fantastic lunch prepared by members

of the organisation. In the afternoon, discussion groups wereheld on various issues affecting women in the area withFLAC chairing the group on health and welfare.

The day finished with both Irish and African music and danc-ing and was a fitting end to a celebration of modern multi-cultural Ireland in which FLAC was delighted to take part.

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Giving children a voice in familylaw proceedings was the themeof a recent seminar organised by

One Family, the national organisation ofone parent families.

Entitled ÔDivorce and Children 10 YearsOn: Lessons to learn for the futureÕ andheld on 24 March last, it brought togeth-er legal experts in the area of family lawand childrenÕs legal issues.

T�naiste and Minister for Justice, Equalityand Law Reform Michael McDowell TDopened the conference. He said that sep-arate representation for children in fami-ly court matters, while an attractiveprospect, brings its own problems. Hereferred to the well established proposi-tion that the best interests of the childshould be the decisive factor in mattersconcerning them, with the rider thatthose interests may come into conflictwith, and be overridden by the rights of aparent or other interested party. TheTanaisteÕs words provided a reminder ofthe limitations of the rights afforded byour Constitution where Courts apply aÒhierarchy of rightsÓ approach.

Dr Fergus Ryan, One Family Chairperson,spoke of the Ògrave concernsÓ held by hisorganisation, members of the legal pro-fession, and others about the structure ofIrish family law. He referred to the uncer-tainty involved in advising clients becauseof the wide discretion of judges and thefact that there are few Òguiding principlesÓof family law. He said that the currentcourts system rewards Ò mud-slinging andpoint-scoringÓ over conciliatory resolu-tion of disputes and co-operation in mak-ing provision for children.

Dr Ryan said that as well as law reform,we need further social and family sup-ports to ensure justice. Even if a child, inprinciple, has a right to access with one ofher parents, adequate facilities for thatparent to entertain and interact with thechild may not be available. He recom-mended that a programme set up in theUK to provide Òcontact centresÓ to facil-itate access should be run here also. DrRyan added that Ireland is in breach of itsinternational commitments in its failureto afford children and young people a

voice in all proceedings concerning them.

The presentation by journalist Dr CarolCoulter, detailing her current CourtsServices reporting project, seemed tosupport these concerns.The project facil-itates the reporting of a number of courtproceedings, without identifying the par-ties - providing a ’snap shot’ of Irish fami-ly law. Dr Coulter told the seminar that inthe majority of these cases whichinvolved children and young people,judges refused to hear evidence disclos-ing their wishes. This was often the caseeven when the issue in dispute was cus-tody, which has a fundamental impact onthe childÕs life, and even if the young peo-ple involved were teenagers.

Inge Clissman SC, a specialist in family lawmatters, described the various ways inwhich the Irish legal system has tried torepresent the interests of children, suchas with the guardian ad litem scheme,which is used in public law matters wherethe state is involved as a party.

A Guardian Ad Litem is a person appoint-ed by the Court to consult with the child,the family and other parties, and advisethe Court on the best interests of thechild. The scheme has not yet beenbrought into force in the private law area,despite existing legislation to allow it.

Ms Clissman explained that guardians adlitem are not true representatives of chil-dren, because they owe a duty to theCourt to advance the legal solutionwhich is in the best interests of the child.This may be distinct from the wishes ofthe child. In her view, a child should havefull legal representation in guardianship,custody and access matters as a matter ofcourse. In most cases Courts will refuseto direct this, unless it can be demon-strated that there has already been someform of abuse or damage to the child.

Existing legislation provides that childrenmay be consulted directly when decidingissues of guardianship, custody orupbringing, if they are of Òsufficient ageand maturityÓ. However, echoing DrCoulter, Ms Clissman said that these pro-visions are rarely invoked. There is noobligation or requirement on judges, in

the form of legislation or PracticeDirections, to elicit the views of children.As a consequence, most cases are settledwithout the childÕs voice being heard.

Article 40.3 of the Irish Constitution hasbeen invoked to support a childÕs right tobe heard in legal proceedings.An individ-ual in respect of whom a decision is to bemade has a personal right to have thatdecision made in accordance with princi-ples of Constitutional justice. Althoughthis principle has been identified by ourCourts, Ms Clissman said that, with theexception of rare cases, it has not beenfollowed.

Ireland also has similar obligations underthe European Convention. The Courtsare obliged to have regard to theConvention in statutory interpretation.The European Court of Human Rights, inthe case of Sahin v Germany, has statedthat the ascertaining of a childÕs views inproceedings concerning them was anÒindispensable prerequisiteÓ for any courtin making a binding order. Ms Clissmanconcluded that our legal system, and oursociety generally, is failing children.

Geoffrey Shannon, solicitor andGovernment-appointed SpecialRapporteur for Children, added aEuropean perspective on Irish family law.He agreed with other speakers that inIreland, children are excluded from thedecision-making process and are largelyÒinvisibleÓ in family law proceedings. Hereferred to recent research on the impactof divorce on children and the new ideawhich has emerged — that children needto participate in the process if they are tocope with family separation.

The limitations of Irish laws have increas-ingly been placed in the spotlight byEuropean Union law. The Brussels IIRegulations provide that matters ofparental responsibility, such as custody,access and guardianship, are cross-juris-dictionally enforceable.

However, judgements of a Court will onlybe recognised and enforced if the Courthas complied with significant principles ofprocedure, as laid down in European law.One of these requirements is that the


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children are heard in the proceedings, ifthey are of sufficient age and maturity.This means that, for example, an Irishaccess decision would only be recognisedin Belgium if the Irish judge had held ahearing with the child concerned, in per-son.At present, no procedures have beenput in place to enable the Irish courts tocomply with this procedural obligation.

Further complicating the matter, thereare divergent views between states inrelation to age based restrictions on chil-dren giving evidence. Shannon says thatwhile the Òold psychologyÓ dictated thatyounger children (generally, those agedunder 12 years) lacked sufficient maturity,it is now recognised that even very youngchildren are able to articulate their feel-ings and should have the chance to beheard. Mr Shannon said that in the emerg-ing Òglobalisation of relationship break-downÓ, these issues must be urgentlyaddressed by the Irish government.

Concluding the seminar, Rachael Kelsey,solicitor and family law expert fromScotland, gave an instructive perspectivefrom her jurisdiction, which has seenmany changes in recent years. In order toimplement the UN Convention on theRights of the Child, Scotland enacted leg-islation in 1995 providing that childrenmust be given the opportunity to beheard in all proceedings affecting them.Scottish sheriffs and judges are obligedto ascertain whether a child wishes toexpress a view and then take account ofthat view.

In matters involving a child over the ageof six, a special form written in Òchild-friendly languageÓ is given to the child,explaining the issues in dispute and askingthem to indicate whether they would liketo express their opinions. They are alsoprovided with the telephone number ofthe Scottish Child Law Centre Helpline.Ms Kelsey explained that children can

apply to become parties to their parentsÕlegal proceedings, can engage a solicitorand apply for legal aid in their own right.While admitting there is still much to bedone to ensure childrenÕs voices areheard in the Scottish Court system, MsKelsey hoped that the developments theyhave seen in the last ten years wouldstimulate discussion here.

The One Family seminar provided notjust fodder for discussion but a reminderthat although Irish family law has changedrapidly in the last ten years, furtherchange is urgently needed.We must adaptour law, systems and processed to ensurethat childrenÕs voices are heard and theirviews taken into account — to protecttheir universally recognised rights.

Papers from the event are available toview and download from One FamilyÕswebsite — see http://www.onefamily.ie


in Irish family law proceedings

One Family Policy and Campaigns Manager Candy Murphy (L), Tánaiste and Minister for Justice Michael McDowellTD and One Family Director Karen Kiernan (R), pictured at the One Family conference on 24 March 2007

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Lydia Foy case starts again


T en years on from when shebegan her legal action in April1997, transgendered woman

Lydia Foy was back in the High Court on17 April. She is seeking to have her gen-der ÒchangeÓ officially recognised byobtaining a new birth certificate showingher realigned gender. She is representedby FLAC.

LydiaÕs case was first heard in the HighCourt over 14 days in 2000 and judgmentwas given by Mr Justice McKechnie in July2002. Medical experts gave evidence thatshe suffered from Gender IdentityDisorder, a recognised medical conditionwhere a personÕs psychological sex/gen-der is at odds with her/his physical char-acteristics and for which gender realign-ment surgery is often the only solution.

The Court found against Lydia, based onlegal precedents that said gender mustremain as identified at birth, and relyingon chromosomes and anatomical indica-tors. But two days later, in a case calledGoodwin v. the United Kingdom, theEuropean Court of Human Rights foundthat the UKÕs refusal to officially recognisetransgendered persons and give themnew birth certificates was in breach of theEuropean Convention on Human Rights(ECHR).

Since then things have moved pretty fast.Every state in the European Unionexcept Ireland and every member of theCouncil of Europe except Albania,Andorra and Ireland now officiallyrecognises gender change and providesnew identity documents. And, followingthe Goodwin case, the UK introduced theGender Recognition Act 2004 whichallows post-operative transgenderedpersons to change their legal gender andget new birth certificates showing theirÔamendedÕ gender. Australia, Canada,New Zealand, South Africa and almostevery state in the United States alsorecognise gender change and it has beenendorsed as well in Japan, Korea andMalaysia.

Even the Hollywood movie industry hasaccepted gender transition in the suc-cessful mainstream movie, Transamerica,

starring Desperate Housewives actorFelicity Huffman.

Ireland is now seriously out of step withother liberal democratic states and thechange in the UK has another signifi-cance for this state as well. The UKGender Recognition Act also applies toNorthern Ireland, raising the prospect ofIrish citizens living in the North officiallychanging their gender and their birthcertificates and then moving to theRepublic. How would the authoritiesdeal with them here?

There can be genuine difficulties aboutissuing new birth certificates to trans-gendered people, particularly wherethere are children and spouses, or for-mer spouses, involved, as in this case.However, the UK legislation has dealtwith this by providing that granting anew birth certificate in a different gen-der does not cancel out any previousmarriage or family relationship or inter-fere with maintenance obligations orsuccession rights. The UK Act couldprovide a useful model for future legisla-tion here.

Since the previous judgment in LydiaFoyÕs case, the European Convention onHuman Rights Act, 2003 (the ECHR Act)has also come into force here, requiringall public authorities to act in accor-dance with the European Convention.Where Irish law does not allow an offi-cial to act in line with the ECHR, thenthe High Court can issue a declarationthat the law in question is incompatiblewith the Convention and it is up to theOireachtas to change it.

Lydia Foy made a new application for anamended birth certificate after theECHR Act came into force. It wasrefused and that is the basis for the pres-ent proceedings. As a result, if the HighCourt finds it cannot grant her applica-tion under Irish law as it stands at pres-ent, it has the option of issuing a decla-ration of incompatibility with the ECHR.That would put the onus on theOireachtas to come up with a solutionthat would ensure some dignity andrespect for a small and vulnerable group

in our society. Ironically, that is what MrJustice McKechnie called for as a matterof urgency at the conclusion of his judg-ment in LydiaÕs case five years ago. Sadly,the Oireachtas has done nothing at all inthe meantime.

Note: A key decision case relied on inthe 2002 High Court judgment in LydiaFoyÕs case was Corbett v. Corbett, decidedin the English High Court in 1971. It con-cerned the marriage between AprilAshley, a transgendered woman and Voguemodel, and Arthur Corbett, the heir to aBritish title. When the marriage brokedown Mr Corbett sought to have itdeclared null and void because, heclaimed, and despite gender realignmentsurgery and being good enough for Voguemagazine, April Ashley was still legally amale. The Court duly obliged and formore than 30 years this case was cited inevery Common Law jurisdiction to denyrecognition to transgendered persons.

In 2005, April Ashley finally obtained agender recognition certificate under theUK Gender Recognition Act and was offi-cially declared female. That should makeit a bit difficult for courts in CommonLaw countries to rely on Corbett again,now that the very person whom the HighCourt in that case declared to be a malehas been officially recognised as a female.

Dr Lydia Foy

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Two cases involving the right ofaccess to civil legal aid, due forhearing together in the High

Court, were settled recently.As part ofthe settlement, the state funded LegalAid Board announced that in some cir-cumstances, it will pay for essentialassistance to clients who require it forthe effective conduct of their case.FLAC welcomes the announcementwhich will improve access to justice inIreland.

The cases, Legal Aid Board v District JudgeBrady and In the matter of G, concerneda mother’s legal representation in childcare proceedings affecting her child.Themother had a reduced capacity to giveinstructions to her lawyers.

In the course of the case, her legal teamapplied to Judge Brady to have anexpert appointed to give assistance intaking her instructions. As there is no

specific mechanism for this, DistrictJudge Brady ordered the Legal AidBoard to seek sanction for the costs ofthe assistance and simultaneouslyreferred a consultative case stated tothe High Court for adjudication.

The Legal Aid Board then issued its ownproceedings to challenge the DistrictJudge’s Order that the Board shouldtake the action that he had ordered.TheAttorney General and the HumanRights Commission had been joined inthe proceedings.

As part of the settlement of the case on28 March, the Legal Aid Board hasannounced that the Board will intro-duce arrangements from early summer2007 for the payment of thefees/expenses of an appropriate person.That person will provide assistance tolegally aided clients in child care pro-ceedings where that client has impaired

capacity and the appointment is consid-ered essential for the effective conductof the child care proceedings.

The role of the person appointed willbe to provide support and assistance tothe client throughout the proceedingsin understanding the proceedings andpartaking in them and to assist theclient in his / her relationship with thesolicitor.

The Legal Aid Board appears to envis-age that the scheme will apply only tochild care cases. However, FLAC hopesand expects that the Board will extendthis progressive assistance measure toother instances where a third party’sexpertise is considered necessary toassist with the effective presentation ofthe legally aided person’s case.

Proposed new legal aid arrangements in childcare proceedings

Dear Editor

Just to clarify a note on ÒLegal aid exclu-sionsÓ that appeared in the December 2006version of FLAC news. You made referenceto persons who were threatened with evic-tion from local authority housing for allegedanti-social behaviour having been grantedlegal aid by the Legal Aid Board.

I should make it clear that the BoardÕs posi-tion is that the eviction proceedings takenby the local authority constitute a disputeconcerning rights and interests in or overland and are therefore excluded from theBoardÕs remit on foot of the Civil Legal AidAct 1995 (section 28(9)(a)(ii)) unless the par-ticular case falls within one of the exemp-tions to the exclusion. Perhaps the most rel-evant exemption is contained at section28(9)(c)(iii) of the 1995 Act which providesthat legal aid may be granted:

Òwhere a subject matter of the dispute isthe applicantÕs home (or what would bethe applicantÕs home but for the dispute)and the Board considers that the applicant -

(I) suffers from an infirmity of mind or body due to old age or to other circumstances, or

(II) may have been subjected to duress, undue influence or fraud in the matter, and that a refusal to grant legal aid would cause hardship to the applican t ; Ó

John McDaidProfessional Liaison Officer

Legal Aid Board

Legal aid exclusions

88 FLAC welcomes readersÕ views on articles that appear in FLAC News — donÕt hesitate to write!



TCD student seminar examines challenges of Public Interest Litigation for Travellers

A seminar on the topic ofTravellers’ Rights was organisedby Trinity College FLAC Society

on 22 January 2007. It featured threespeakers with real insight into the issuewho reviewed the triumphs and limitationsexperienced by Travellers in their use of lit-igation and emphasised the need for cau-tion in the wake of the recent Dohertycase.

Oran Doyle, barrister and law lecturer atTCD, outlined the case of Doherty & anor vSouth Dublin Co. Co. & ors [2006] IESC 57 indetail for the assembled students, lawyersand activists. The plaintiffs were an elderlycouple suffering from numerous serioushealth problems, living in a sub-standard,dilapidated caravan, which had been provid-ed by way of a loan from the local council,on a temporary halting site. They soughtmore appropriate accommodation fromthe council, which did not respond untilreview proceedings were issued.

In the High Court decision, it was held thatthe local authority had no obligation toprovide specific accommodation forTravellers, only Òbricks and mortarÓaccommodation. As Mr Doyle soberlycommented, this brings up some seriousproblems for the Traveller movement.Legally, the right to a halting site remains,but the Doherty decision seems to allow ahousing authority to subject Travellers tosub-standard conditions on a halting site.

Mr Doyle said that an appeal of this deci-sion has been considered on the groundsof the European Convention on HumanRights and Equal Status Acts. However, thiswould carry the danger of copperfasteningan even worse situation. He said a possiblebenefit of the case may be that it has Ò gotpeople thinkingÓ about the plight ofTravellers in this country.

Professor Gerry Whyte gave a historicaloutline of the use of Public Interest Law byTravellers. The question to be asked, hesaid, is not whether the use of PublicInterest Litigation (PIL) is legitimate — itundoubtedly is — but whether it is effective.When viewed in the context of TravellersÕstruggles for recognition of their rightsover the past 50 years, he said,PIL has pro-duced mixed results. Lawyers must careful

consider the options before they go toCourt on behalf of marginalised groups.

According to Professor Whyte, PIL may beused as a defence mechanism when partiesare dragged into litigation by an oppressivestate. In successful cases, the proceedingscan be turned around, and used to gain anadvantage for the defendant, such as in the1956 case of Limerick Corporation vSheridan. Professor Whyte said that PIL ismore usually employed by plaintiffs toprompt a disinterested state to care formarginalised groups, for example, to pro-vide appropriate accommodation, educa-tion and facilities for homeless children.Anexample of the successful application ofthis type of PIL is the 1980 Supreme Courtdecision in a case taken by RosellaMcDonald (McDonald v Feely & ors), wherethe local authority attempted to move theplaintiffÕs family from their camp on abypass road works site.Ms McDonald wona ruling that Travellers could not be evict-ed from local authority property withoutbeing offered a suitable alternative, underthe Housing Act in force. However, thatprinciple has been whittled away by subse-quent legislation.This is one of the difficul-ties with Public Interest Litigation: even ifvictories are claimed, they often do not sig-nify the end of the struggle.

Prof.Whyte also spoke of Travellers’ rightsto a halting site. In OÕReilly v LimerickCorporation it was held that Travellers wereconstitutionally entitled to be providedwith basic facilities.This was followed by aremarkable judgment in the case ofUniversity of Limerick v Ryan,which held thatthat local governments have a duty to pro-vide halting sites in certain cases, eventhough the legislation uses the word Òmay Óand not ÒshallÓ.This principle was followedin a number of subsequent proceedings,including Ward v South Dublin Co. Co andMongan v South Dublin Co. Co., whereTravellers were able to build on this right.He went on to examine one of the maindangers of litigation — that is if a plaintiffloses, they copperfasten the issue theysought to challenge. Arguably, this is theresult of the Doherty decision. The HighCourt held that the local authority hadsatisfied its obligations by offering theplaintiffs a dwelling and did not have tooffer them a mobile home. Judge Charlton

distinguished it from the previous cases,including Ryan, in that these dealt withrights to halting sites only. The Dohertysneeded a new home — their existing onewas entirely inappropriate for their needs.

Damien Peelo of the Irish TravellersMovement (ITM) also spoke about the roleand limitations of PIL. In 2002, the ITMestablished a Legal Unit to test new legalapproaches to TravellersÕ issues. To putsome perspective on these issues, he statedthat one-third of the Traveller communitylive in substandard conditions and sufferongoing health problems: The average lifeexpectancy of Travellers is 10 to 12 yearsbelow their settled counterparts.

Mr Peelo explained that, in many cases,Travellers take legal action to deal with theirimmediate circumstances. For example, ifsomeone is evicted, they may have nowhere else to go. But the Òtest caseapproachÓ he said, is limited. He said thatIrish law does not take into account differ-ences in culture.TravellersÕ ethnicity is notfactored in when laws are made. For exam-ple, provision is not made for the fact thatTravellers do not need or want Ôbricks andmortarÕ housing.The situation for Travellershas worsened in recent years; they faceassimilation by default, with their way of lifebeing increasingly devalued.

He explained that strategic legal responsesmust be formed to fight back with the aimof promoting TravellersÕ human and legalrights through the Courts and legislativeframework. He said that an important partof this strategy will be to develop researchtools to put forward law reform proposals.The ITM is currently seeking funding tocontinue work in this area.

In relation to Doherty, Mr Peelo said thatTravellers will continue to pursue litigationin their struggle to achieve rights, albeitwith caution. Other avenues have failed,and while there are times when litigationresults in very big setbacks, this must beviewed in a broader context.

Trinity FLAC Society is to be commendedfor a very relevant seminar at this criticaltime for Irish Travellers. For further infor-mation, see their website at http://societies.csc.tcd.ie/~flac/


Remembering Dave Ellis

Dave Ellis, founder member anddriving force behindCommunity Legal Resource

(CLR) and formerly Community LawOfficer with Coolock Community LawCentre (now Northside CLC) for over20 years, died after a short illness on 2February last.

Many tributes have been paid to Davenot least at his funeral service at theUnitarian Church on StephenÕs Greenand in an Irish Times obituary. In this edi-tion of FLAC News, we would like toremember the tremendous contribu-tion that Dave made to FLAC itselfover many years, both during his timewith the Law Centre and after he setup CLR.

Dave Ellis was a priceless resource to asuccession of FLAC staff and councilmembers who worked with him on var-ious campaigns and issues during histime at Coolock. His genial personalityallied with an unstinting commitment sethim apart as an example of how to getwork done.Whether lobbying politiciansto improve the scope of the Civil LegalAid Bill as it went through SelectCommittee, advising on the finer pointsof a Social Welfare appeal or composingsections of joint employment rights pub-lications like the Maternity Rights Guide,Dave could always be relied upon tostrike the right note.

It was no surprise to many that after leav-ing the Community Law Centre inCoolock,Dave turned his community lawexperience to setting up an innovativeproject designed to deliver legal andsocial policy services in the Ônot for prof-itÕ sector, CLR. As was his style, Dave,with the help of his wife Sarah,establishedthe project himself and then providedothers with the opportunity to comeaboard, gradually drawing in a variety ofpeople with complementary expertise.

When FLAC came to select consultantsto evaluate the future of Public InterestLaw in Ireland as part of its currentcampaign, CLR was a natural choice.Dave had a vision for making the lawaccessible to disadvantaged people anda vision for co-ordinating and sharinginformation amongst interested parties.

He also believed wholeheartedly thatsocial change was possible and that thatthe law could be used to effect socialchange in Ireland.We believe that Davepioneered much of the community andpublic interest law work now develop-ing in Ireland.

He inspired so many of us that our taskis to continue his work for access tojustice and the further development ofpublic interest law.

Dave Ellis carried his considerable wis-dom lightly, he was impishly goodhumoured, he was deeply committed tohis work and could be occasionallydelightfully eccentric. We rememberhim as one of lifeÕs true gentlemen.

N� bheidh a leithead ann ar�s.


Pictured at SICCDA’s Eamon Leahy Memorial ConferenceJune 2005, Dave with his partner Sarah Flynn and Donncha

O’Connell, Dean of Law, NUI Galway

Dave participated actively in FLAC’s 2006 seminarseries on Public Interest Law in Ireland; he is

pictured here with his colleague Orlagh Farrell

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A seminar held in February by the LawSociety focused on ÔActing for theVulnerable ClientÕ and featured recom-mendations around mental capacity thathave very important implications formany people.

Up to now, the only two existing formallegal mechanisms for managing theaffairs of someone lacking mental capac-ity is to have that person made a Wardof Court or to create an EnduringPower of Attorney.

When a person is made a Ward ofCourt, the High Court is vested withjurisdiction over all matters relating tothe person and estate of the ward.Thismeans that as well as looking after theassets of the ward, the court also hasjurisdiction over the personal care ofthe ward. However, it is normally whenprotection of the personÕs assets are atissue that a person is taken into ward-ship. Once a person has been made aWard of Court, they lose the right tomake any decisions about their personand property, e.g., the right to make awill.

There are procedures that must be fol-lowed when one is being made a Wardof Court, but these are consideredarchaic and complex by the Law ReformCommission (LRC), which has recom-mended instead the establishment of astatutory framework for the legal pro-tection of vulnerable adultsÕ person andproperty.The LRCÕs recommendation isto maximise personal autonomy for vul-nerable people as much as possible.

An Enduring Power of Attorney,on the other hand, is a Power ofAttorney created by a person whenthey are in good mental health selectinga specific person to take over the han-dling of their affairs in the event thatthey become mentally incapacitated. Upto now there has been no legal defini-tion of ’capacity’; thus, in establishingwhether a person has capacity, threeapproaches have been used.

The Status Approach This involves an across the board assess-

ment of a person’s capacity based ontheir disability. For example, a personwho is on a long-stay psychiatric wardmight be automatically denied capacityto make a will without having regard totheir actual capabilities. The statusapproach is also evident where a personhas been made a ward of court andwhere an enduring power of attorneyhas been registered.

The Outcome ApproachUnder this approach, capacity is deter-mined by the content of an individualÕsdecision. For example if a person madea decision which did not conform tonormal societal values, this might betaken to be evidence of incapacity.

The Functional ApproachThis approach assesses capacity on anissue-specific and time-specific basis.This means that a decision on legalcapacity in relation to one issue will notnecessarily be decided in the same man-ner in relation to another issue. Forexample, in an English case from 1953entitled Park v Park, a man of advancedyears who married and executed a willon the same day was found to have hadthe capacity to marry but to have lackedthe capacity to make a will.

In an effort to protect the elderly andthose with decision-making difficulties,the LRC published two consultationpapers, the first a Consultation Paper onLaw and the Elderly and the second aConsultation Paper on Vulnerable Adults andthe Law: Capacity. The LRC then went onto publish a Report on Vulnerable Adultsand the Law in December 2006 whichincorporated the issues discussed inboth consultation papers. The reportrecommends that Òthe law on capacityshould reflect an emphasis on capacityrather than lack of capacity and shouldbe enabling rather than restrictive innature, thus ensuring that it complieswith relevant constitutional and humanrights standards.Ó

The LRC goes on to recommend theÔfunctionalÕ approach in assessing capac-ity.The draft scheme set out in the LRCreport has been introduced by Sen.

Mary Henry as a Private Members Billentitled ÔMental Capacity &Guardianship Bill 2007Õ. In this Bill,capacity is defined as Òthe ability tounderstand the nature of a decision inthe context of available choices at thetime the decision is being made andwhere a decision requires the act of athird party in order to be implemented,a person is not to be treated as havingcapacity if he or she is not able to com-municate by any means.Ó This essentiallymeans that when one makes a decision,s/he must be able to communicate thatdecision and if s/he cannot, incapacity ispresumed.

The Bill also defines guiding principleswhich must always be taken intoaccount when applying the Bill. Theseguiding principles set the tone of the Billand are set out as follows:

8 no intervention is to take placeunless it is necessary having regardto the needs and individual circum-stances of the person includingwhether the person is likely toincrease or regain capacity;

8 any intervention should be theleast restrictive of the personÕsfreedom;

8 account must be taken of the per-sonÕs past and present wisheswhere they are ascertainable;

8 account must be taken of the per-sonÕs relatives, primary carer andthe person with whom he or sheresides;

8 due regard shall be given to theneed to respect the personÕs digni-ty, bodily integrity, right to privacyand autonomy.

The Bill also provides for the establish-ment of a three-member GuardianshipBoard chaired by a High Court orSupreme Court judge. The Board willmake decisions as to whether a persondoes or does not have capacity to makedecisions for himself.

The Guardianship Board will have threefunctions:

Dealing with vulnerable clients – law reform



1 to make Guardianship Orders;2 to appoint personal guardians pur-

suant to such GuardianshipOrders;

3 to make Intervention Orders.

Where a Guardianship Order is made, aPersonal Guardian can be appointedover the property, financial affairs andwelfare of a person who lacks capacityeither in a limited way or generally. AnIntervention Order would be for a specif-ic purpose where a GuardianshipOrder would not be required.

The Bill also provides for the establish-ment of an Office of the PublicGuardian which would have a supervi-sory role over the Personal Guardianand also those acting under EnduringPowers of Attorney. The PublicGuardian would also have the power todevelop and publish codes of practiceto assist people who are assessingwhether a person has capacity in rela-tion to any matter, to guide attorneysoperating under Enduring Powers ofAttorney. The Public Guardian wouldalso have an educational role to raiseawareness amongst the public and towork with other bodies such as theHealth Service Executive.

Finally, the solicitor is usually the firstpoint of contact for the vulnerableclient and great emphasis must beplaced on the importance of givingadvice to the client. In a 1997 SupremeCourt case entitled Carroll v Carroll,Judge Barron stated:

Òa solicitor or other professionalperson does not fulfil his obligationto his client...by simply doing whathe is instructed to do. He owes sucha person a duty to exercise his pro-fessional skill and judgment and hedoes not fulfil that duty blithely fol-lowing instructions without stoppingto consider whether to do so isappropriate.Having done so, he mustthen give advice as to whether ornot what is required of him is appro-priate.Ó

A s evidenced by recent courtcases, amicus curiae interven-tions can be a potentially pow-

erful tool for the promotion of publicinterest law.

Amicus curiae briefs are filed in courtproceedings by individuals or groupswho are not party to a lawsuit, but whohave a strong interest or expertise inthe issues in the case, and who are invit-ed by the court, or permitted by law, orwho petition the court to make anintervention in the action.The "amicus"is considered to be a "friend of thecourt".

FLAC is hosting a seminar around theuse and potential of amicus curiae inter-ventions at the Park Inn Hotel,Smithfield, Dublin 7 on Monday 30 Aprilfrom 2.30-5.30pm.

Speakers with experience of such inter-ventions from England, NorthernIreland and Ireland will take part in theseminar. These include Mr Phil Shiner,Supervising Solicitor with PublicInterest Lawyers, a UK-based organisa-tion. He is a lawyer with an internation-al and national reputation for his workon issues concerning international, envi-ronmental and human rights law. Philhas been practicing as a solicitor in theUK since 1981 and is a visiting profes-sor at London Metropolitan Universityand a visiting fellow at the LondonSchool of Economics. He was made"Human Rights Lawyer of the Year" bythe Joint Liberty and Justice Awards in2004.

He will talk about his experience inpublic interest cases working withNGOs acting as amici. Currently Phil isworking on a case involving Iraqi civil-ians killed or injured by British soldiersduring the occupation in the case of AlSkeini, which will be heard at the Houseof Lords in late April 2007. He also actsfor a British national who has been heldwithout charge in a British detentioncentre in Basra since October 2004 inthe case of Al Jedda, which is also pro-ceeding to the House of Lords. He acts

for the families of British soldiers whochallenged the legality of the Iraq war. In2003 he represented CND in a judicialreview challenge to the Government’sdecision to go to war.

Also speaking will be Ms Eilis Barry,Senior Legal Adviser with the EqualityAuthority. Prior to joining the EqualityAuthority she practiced as a barristerfor 15 years, specialising in employmentand discrimination cases, appearing inmany equality cases before the IrishCourts. She was a regular contributoron employment issues to the Irish LawTimes and was Editor of the EmploymentLaw Reports for a number of years. Shewas a Director of the Free Legal AdviceCentres for 15 years. She is the co-edi-tor of Equality in Diversity, The newEquality Directives, ICEL No 29.

Eilis will give a factual account of theexperience of the Equality Authority inseeking to be appointed as amicus. Shewill review the implications of theSupreme Court judgment in the case ofDoherty & anor v South Dublin Co. Co. foramicus curiae applications in Ireland.

The final speaker is Ms Karen Quinlivan,a practising Barrister in NorthernIreland. She has acted in a number ofinterventions on behalf of the NorthernIreland Human Rights Commission. Inparticular she will speak about the suc-cessful appeal the NIHRC took to theHouse of Lords to assert their right tointervene in cases. Karen will discussthe added value of interventions in pub-lic interest cases.

For participating solicitors and barris-ters, CPD points are available.To bookyour place please e-mail us [email protected] or phone us at 01-8745690.


Forthcoming seminar on AmicusCuriae interventions

For more information, see the various websites:

www.publicinterestlawyers.co.uk

www.equality.ie

www.nihrc.org

in sight?


I f you study law, lecturers might throwout the following scenario: there is achild drowning in a puddle on a busy

street.The question is: should a passer-bygo to the aid of the child? Does the pass-er-by owe a duty of care to that child onseeing the child in distress? If a passer-byknowingly fails to aid the child, shoulds/he be convicted of the drowning of thatchild because of failure of moral obliga-tion? Yet who decides what is moral? Is itsociety, religious thought, the legislator? Ifound myself thrown into a state of unrestwhen I returned to India, more educatedon paper but morally still ill equipped.

Indians will tell you they cannot save every-one, and if you were to stop every time achild begged then you would never getanything done. Indians will argue how canyou keep a hospital clean, when 1 millionpeople go through it weekly. India is social-ly, economically and culturally complex,butis this a justification for not trying to solveproblems? That is what the Human RightsLegal Network (HRLN) - and many otherNGOs in India - do: they try.

They may not be able to resolve the factthat over 700 million people live on thepoverty line, stop over 6.7 million womenhaving illegal abortions, or stamp out cor-ruption within the police force.Nevertheless, by writing books, co-ordi-nating interested groups across India,seeking orders from the courts, filing andfighting Public Interest Litigation (PIL)cases and directing the government toimplement laws, they achieve some good;the fact that the Indian government isconstantly trying to shut down HRLNand organisations like it is all more the

reason to keep trying.

I was called to the Irish Bar in October2006. Till then, I had no real history ofworking in any charitable or humanitarianorganisation, I felt I was about to embarkon something of which up to now I hadremained ignorant. Prior to December2006, as a half Indian, I was confident Iunderstood the country. My early yearsand later numerous visits had exposedme to all sorts of religions, castes, cus-toms, languages, the sheer size, mass pop-ulation, abject poverty, disease. However,did I really understand this country?Through a seminar organised by FLAC inmid-October, I heard a talk given by ColinGonsalves, a Senior Advocate and founderof HLRN in India. Later when I spoke withColin, I remained defensive. Was it prideor a sheltered upbringing of beliefs?

It took a cool, foggy morning, in earlyDecember 2006, down a little back roadin Central Delhi to strip away my originalperceptions. In the Delhi office of HRLN,it was extraordinary to find that everycreed, religion and caste worked along-side each other as equals, which in India isalmost unheard of.

I was sent up to the magazine depart-ment. HRLN publishes Combat Law, a bi-monthly publication. My first assignment:To research an important recent judg-ment on trafficking. Foolishly, I thoughtthis was a straightforward issue. I onlylater began to realise the task was a mam-moth one. All the existing legislationmerely brushes with the concept of traf-ficking. It goes so far, but does not declareprostitution a crime per se.

I used to think that legislation, its imple-mentation and enforcement, and having aright of access to the courts was straight-forward.Green from the King’s Inns, I wasunprepared to discover how flawed leg-islation can be in dealing with a subject.The cries by international bodies andinternal NGO bodies about trafficking inIndia have fallen on deaf ears - the reasonbeing that politics in India is extremelycorrupt.

From the outside, it is a fast-growing,evolving economy. Coming to India overthe years, I thought this was true. Thereare fewer visible poor - over the years, Ihave seen fewer and fewer people livingon the streets in made-up houses cutfrom cardboard or makeshift tents.Withdismay, I find the government has merelyimplemented a policy to move all thoseon the city centre streets to the outerreaches of the city.The government wantsforeigners to think India is booming andthat poverty is a thing of the past; In factthe poor are just pushed out of sight.After all, India prides itself as the largestdemocracy in the world.

Often HRLN not only files on behalf ofvictims of crimes and various social injus-tices, but also has to file petitions seekingorders simply for states or relevantauthorities to implement the existing leg-islation. In this instance, nothing is done inrelation to rehabilitation or child-friendlymethods implemented or acknowledgedby the authorities. Crude attitudes, due topoor training and lack of political will,leave a mammoth task for NGOs work-ing in the area to cope with the victims.


A letter from India: My

Ritika (front row, right) & HRLN members taking time off at Bagga, a seaside resort

Members of HRLN’s New Delhi office who attended the Goa meeting


The legislation will often read thatauthorities should use NGOs, or a courtwill order a committee to draft up a pol-icy which should include NGOs.The netimpact is authorities cannot be heldaccountable for not working with NGOs.The problem with this is that authoritiesin India are not only corrupt, but oftenthey lack the know-how, resources orpolitical will to attempt to implement thelegislation effectively. The NGOs pay theprice, as they must fight for every inch ofco-operation with the authorities.

Unlike Ireland, with a population of 4 mil-lion predominantly Catholic inhabitants,India has multiples of religions and ishome to over a billion people. Each stateis like a separate country with its ownlanguage, not to mention differentdialects. Within each state, down to thevillage area, customs, tribes, histories, reli-gions beliefs differ greatly.The fundamen-tal problem with a lot of Indian law is itwas merely adjusted from a legacy left bythe British colonists. This has causednumerous problems in having a writtenlaw which does not take account of theneeds and culture of the people it is try-ing to address.In December HRLN invited me to theirannual meeting in Goa.This consisted of a4-day workshop with 70 lawyers andsocial workers from across India.The aimwas to share discuss and understand howto move forward as one of the mostactive human rights networks in India.Thetopics included:

8Criminal Justice Initiatives andPrisoner Rights (judicial accountabil-ity and police reform)

8Child Rights initiatives8HIV and the Law Initiative (needed

understanding )8Dalit Rights Initiative (major injus-

tices) 8Housing Rights8Disaster and Rights8Refugee rights8Right to Food8Disability Rights (rights to equality)8Labour law and rights8Communalism and the law (hate and

minority issues)8Women’s Justice

8Trafficking8Environmental Justice8Financial Position and Fund Raising 8Organisational issues

It is not possible to go into detail on eachtopic. However, as an example underWomen’s Justice, one issue was aroundacid attacks. Sheila, one of the HRLNlawyers, described a PIL case she hadbeen involved in:

A young girl (the victim) is working.She finds out her boss is in "love" withher and he tells her he wants to marryher. She declines and leaves to workfor another person. She walks to hernew job. One morning she is stoppedby her old boss. He asks her to comeback to her old job and marry him. Shedeclines. He then throws sulphuricacid over her.Thinking she would notsurvive he runs off. The victim suffersoptic nerve damage, her facedestroyed. For the rest of her life as awoman she will never be "married off"(which in India is the main object whena girl is born; it is then her husbands’family who must look after her.However, when he dies she is cut offagain. Most Indians would never con-sider not marrying as an option.) Shewill never be able to hold down a jobbecause of her injury.

HRLN brought a case on her behalf. Ittook five years to decide the case! ThePublic Prosecution was harassing lawyersof HRLN and attempting to hamper thecase, as too much publicity was beingmade of the case. HRLN had to makeapplication to the High Court to over-turn a decision given in a Lower Courtstating the accused did not act deliber-ately or and the victim was not entitled torehabilitation. The High Court releasedone Lak (100,000 rupees) but only uponphoto evidence of victim! The impact ofthis case: all victims of acid attacks acrossIndia are now entitled to rehabilitation.

The lawyers at HRLN are brave, hard-working and full of humanity.They worklong hours when others are asleep. Somework under constant threat to theirlives.Asraf Mohammad, a lawyer working

in Kashmir, knows of 15 people who havegone missing or been murdered in thelast few years. These people werelawyers, doctors and social workers. Allthey did was actively help a rape victim, amurdered relative to find justice. But thesystem, steeped in power and corrup-tion, is often too big for the individualfighting for some simple right.

HRLN currently have over 230 peopleworking for them over 22 units acrossIndia.They now face tough times. By theend of 2007, their funding will have beencut by three-quarters. Most of this fund-ing has until now come from foreignembassies. Why are they stopping? TheHRLN believes it is political pressure inpart. The Indian government says, "fundHRLN, but don’t expect to trade or haveaccess to the Indian market". Businessinterests have won the day - for now -while HRLN’s very existence hangs in thebalance.

At the Goa meeting I discovered thatmost of the lawyers work for less than a$100 a month.The Kashmir unit had beenonly paid 1500 rupees a month: aboutÛ25. Poor pay conditions and long emo-tional days have not stopped them fighting.The sense of good spirit is holding themunited. It was a profound feeling to beamong Muslims, Hindus, Sikhs, Christians,Parsis and Buddhists all singing togetherBollywood songs, in perfect harmony, topass the time huddled in a third class car-riage, on the overnight train to Goa.

To be able to read this already makes youprivileged. In India this year, over 300 mil-lion people (more than the total popula-tion of the USA) will not get that oppor-tunity.That does not mean lawyers, judgesarbitrators and law student cannot con-tribute; they can contribute their trainingexperience, even old law books, journalsand reports - or PCs and laptops - andmost concretely, money.

Ritika Vaderaa BL

experience with HRLN


For more information on HRLN,see the websites at

http://www.hrln.org/http://www.combatlaw.org/

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Significant numbers of people still faceimprisonment by default principallybecause they have failed to engage witha legal system that is complicated, diffi-cult to understand and insists on deal-ing with debt enforcement in public.The current system is not only archaic,but expensive on the public purse andhighly inefficient. Even MABS, the state-funded service that has done so muchto improve the situation of people indebt, has not yet been given the finalstatutory recognition it needs to main-tain and further develop its vital work.

Reform of the laws on finesDespite almost a decade of promisesthat legislation would be introduced onalternative methods to pay fines, thereis still no instalment system in place.Aperson fined for a minor offence (e.g.,non-payment of a bus fare) must there-fore come up with the entire amountof the fine in a lump sum or face jail.Many of those who end up in jail havelow incomes or are in receipt of socialwelfare.

The supreme irony is that if a prisonsentence is served, the fine is purged.Thus, the State spends a vast amountof resources (Court staff, Garda timeand the cost of the prison stay) andgets nothing in return. Rather thanwasting resources, alternative means ofsanction such as Community ServiceProgrammes and Restorative JusticeSchemes have proven to be effective inpilot programmes, and are worth fur-ther investigation.

The Fines Bill was introduced in theD�il on 26 January, but it has not pro-gressed at the time of writing beyondthe first stage. It does provide inSection 11 for the payment of fines byinstalment over a period of one yearwith the possibility of a further oneyear extension and this is welcome.However, it does not pursue any of thealternative means of sanction outlined

above. With a general election immi-nent, there must also be concerns thatthe Bill will not be passed before thedissolution of the Dail, leaving the cur-rent unacceptable situation unchanged.

Restoration of Child Benefit asa universal paymentIreland has long been proud of itshuman rights record on the interna-tional stage and has often been amongthe first to sign up to internationaltreaties. However the stateÕs respectfor childrenÕs rights has recently beenfound wanting with the introduction ofthe Habitual Residence Condition inMay 2004, which ended the universalpayment of Child Benefit to all childrenin the country — a policy that respect-ed Child Benefit as a major tool in end-ing child poverty and in meeting theStateÕs human rights obligation not todiscriminate between children.

Now, children of workers (some ofwhom have been exploited in Ireland),of asylum seekers and of those waitingfor decisions on residence are deniedthe benefit.

Although it is contrary to governmentpolicy on child poverty, and to its aimto eliminate child poverty by 2010, andthough it is contrary to anti-discrimi-nation provisions in human rights law, itis in line with a strict immigration pol-icy. Children are being forced to paythe cost of our migration policy andthis will assuredly drive some childrenand their families into poverty.

By making these changes, the next gov-ernment could set a sound basis forgreater equality between people, moreprofound respect for human rights andhigher standards of social inclusion andcohesion than any government that hasgone before.



The Challenge of ChangeFLAC’s call to politicians 2007

FLAC’s recommendations:

1. Consider including explicit recogni-tion that everyone is entitled toequal access to justice.

2. Parties might consider promotingaccess to justice in their plans tocombat poverty.

3. Parties might explore how commu-nity law mechanisms can be used toadvance the public interest.

4. To ensure full knowledge of its services, consider a separate budg-et allocation for promotion of the Legal Aid Board.

5. Commit to an annual parliamentaryreview of the means test for civillegal aid.

6. Review the arbitrary and punitivedistinctions between different kindsof law in the allocation of civil legalaid.

7. Consider a Debt ReschedulingTribunal to modernise the debtenforcement system.

8. Support the legislation which willestablish MABS on a statutory foot-ing and provide it with the neces-sary resources to carry out itsremit.

9. Commit to continued exploration ofalternative means of redress forthose for whom fines are inappro-priate, such as those without fundsto pay them.

10.Consider amendments to theConsumer Credit legislation so thatall lenders (domestic or European)proposing to charge a premiumabove market interest rates shouldhave to apply for a licence with theFinancial Regulator and justify suchcharges.

11. Consider mechanisms to allow bor-rowers to refer issues such as thefairness of the cost of credit, defaultinterest charges and other relevantterms and conditions of housingloans, credit agreements or hirepurchase agreements to theOmbudsman for Financial Services.

12.Seek to restore Child Benefit as auniversal payment to every child inIreland.