DEMPSEY v. IRELAND
Inadmissible
Matti Pellonpää
The applicant is an Irish national, born in 1963 and living in Dublin. She is represented before the Court by Collins Crowley and Company, a firm of solicitors practising in Dublin. A. The applicant is the natural mother of three children born on 18 June 1984, 25 May 1988 and on 14 June 1991. At the time of the birth of her third child (“D”), the applicant had a history of substance abuse and of depression. Her relationship (often violent) with the father of D had ended, he having commenced a long prison sentence. D was placed in an incubator when he was born until his discharge from hospital on 2 July 1991. On that date, the applicant signed the Admission to Care form to have D placed in pre-adoptive foster care under the supervision of the Eastern Health Board and D was immediately handed over to foster parents. On 25 July 1991 D was placed with the prospective adoptive parents. On 20 December 1991 the applicant signed the final consent form for the adoption. Having recovered from her drug addiction, the applicant wished to obtain the return of D and to challenge the consent to adoption she had signed. Having received notification dated 3 July 1992 that the final adoption order would be made, on 7 July 1992 she requested An Bord Uchtála (the Adoption Board) not to proceed with the adoption and on 17 September 1992 notified the Adoption Board orally that she wanted her child back. By letter dated 30 September 1992 the Registrar of the Adoption Board confirmed to the applicant that her consent for the adoption would be regarded as withdrawn. In September 1992 the applicant went to the Legal Aid Board where she was informed that she would have to wait over two months for an appointment to discuss a legal aid application and that there was a three year delay before the Legal Aid Board could act. She did not, therefore, fill out the necessary legal aid application forms. She returned twice to that office and failed to obtain legal aid or advice. Given that time was of the essence for the applicant, as D was living still with the prospective adoptive parents, she consulted a voluntary agency and a social worker who put her in touch with a firm of solicitors (her current legal representatives). She contacted that firm of solicitors in January 1993. The latter took instructions, instructed Counsel and on 25 February 1993 issued proceedings on behalf of the applicant seeking sole guardianship of the child pursuant to section 11 of the Guardianship of Infants Act 1964. Since it was clear to her representatives that the applicant, a single impecunious mother, could not discharge their fees, they contacted the Legal Aid Board by telephone in August 1993. The latter confirmed that, while the applicant would qualify for legal aid in relation to her means, there remained the issue relating to that Board’s view of the merits of her case. No legal aid application forms were filled out at that stage. On 20 May 1993 the prospective adoptive parents also issued proceedings to dispense with the applicant’s consent to adoption and seeking sole custody of D for the period required to make the adoption order. The prospective adoptive parents were legally aided. The High Court hearing in both proceedings took place over 13 days in July and November 1993. The High Court heard substantial evidence from social workers, a medical doctor, a psychiatrist, a psychologist, the applicant and from the prospective adoptive parents. It took three days to deliver the judgment orally (25, 26 and 30 November 1993). The High Court found, on the facts, that the applicant’s consent for adoption had been freely and properly given. As to the best interests of D, it was noted that D had been with the prospective adoptive parents for almost two and a half years and that it was considered that the evidence was that a move at that stage would be traumatic for D and could damage his future capacity to make sound and trusting relationships. It was considered that D had been placed in a household where he would receive great love, care and attention. The High Court ordered that the applicant’s consent to adoption be dispensed with pursuant to section 3(2) of the Adoption Act 1974, that the Adoption Board be authorised to make an adoption order and that the prospective adoptive parents have custody of D for a further six months, a period calculated to allow the adoption to be completed. The High Court made a “strong recommendation that the Legal Aid Board look favourably” on the applicant’s representatives’ request that her costs of the two proceedings be discharged by that Board. The applicant’s representatives and the Legal Aid Board subsequently failed to resolve the matter, the Legal Aid Board taking the view that since no application forms had been filled out, no legal aid certificate had issued and that it did not therefore have the power to make the payment, even under section 8(3) of the Legal Aid Scheme. On 19 December 1994 the applicant’s representatives brought the issue of legal costs before the High Court. On 1 February 1996 the High Court gave judgment on the costs issue. It commented that the hallmark of the applicant’s case was “meticulous preparation and careful presentation”. It referred to the “modest” sums claimed by the applicant’s representatives and, in that context, noted that the applicant herself had made it clear that she regarded her case as having been fully put before the Court. It also took note of the applicant’s inability to obtain legal aid or assistance urgently in 1992 and that, accordingly, the required forms for applying for legal aid were not filled out at the time. In that court’s view it would have been a grave injustice if the natural mother’s costs were not met because her legal representatives, who presented her case “diligently and ably”, would in practical terms not be remunerated. The High Court considered that the applicant would have qualified for legal aid had she applied on time, given the nature of the case and her financial circumstances. It was found that, if an order for costs was made against the prospective adoptive parents, the applicant’s case would fall within the terms of section 8(3) of the Legal Aid Scheme. The court therefore made an order for costs against the prospective adoptive parents but put a permanent stay on the order and obtained an undertaking from the applicant not to enforce those costs. On 17 May 1996 the Supreme Court gave judgment on the prospective adoptive parents’ appeal from this costs order against them. The Supreme Court accepted that neither the applicant nor the prospective adoptive parents were in a position to discharge the former’s legal costs. The Supreme Court considered that, while the High Court’s order was intended to allow payment to the applicant under section 8(3) of the Legal Aid Scheme, the High Court had acted without jurisdiction. The Supreme Court allowed the prospective adoptive parents’ appeal and set aside the order of the High Court. The Chief Justice (with whom two of the other judges concurred) stated, inter alia, as follows: “I <allow the appeal> with regret because I fully appreciate the efforts made by the solicitor who undertook the case on behalf of the natural mother in accordance with the highest traditions of both branches of the profession, that they were not going to let a person who had the constitutional right of access to the courts be deprived of that by reason of the apparent and alleged delays in the administration of the civil legal aid scheme. It is unfortunate that there should have been such delays if they existed which deprived the natural mother of the possibility of getting a certificate of legal aid in time in order to deal with a matter which was of extreme urgency. The Court has from time to time been faced with problems caused by delay in the bringing and prosecution of appeals against decisions of the High Court in respect of these proceedings and to a very considerable extent, these delays have been substantially contributed to by the costs of the proceedings, the difficulty which existed in obtaining a certificate for the civil legal aid in time in order to bring these proceedings to a fairly rapid conclusion. In many cases because of the delays, the Court has often found it obliged not to alter the status quo with regard to children involved because they had grown up and were six and seven years old and irrespective of the rights and wrongs, obviously the paramount interest of the child required that they be left where they were irrespective of the merits of the application of the natural mother. I have, as I said, felt obliged to allow the appeal … but do so with regret because it would be much more desirable if access to the courts were made easier for people in the position of the natural mother. She would not have been entitled to or able to avail of that access were it not for the action of her solicitor in undertaking the case and it is in my opinion regrettable that there is not in existence or was not at the time a system whereby a solicitor in the position of the solicitor in this case could obtain reasonable remuneration for his efforts. The problem about making a recommendation to the Legal Aid Board even at this stage is compounded by the fact that they say that they had no power to accede to the recommendation, so no useful purpose would appear to be served in making any further recommendations in this regard.” B. Relevant domestic law Section 4(8)(2) of the Legal Aid Scheme provides that a certificate which is granted after the commencement of the proceedings in respect of which it is sought will not be extended to cover any action taken or costs incurred prior to the issue of the certificate. Section 8(3) of that scheme provides that the Legal Aid Board may make ex gratia payments towards the costs of an unaided person but only in cases where the costs have been awarded against a legally aided person and provided that, inter alia, the proceedings in the court of first instance were instituted by the unsuccessful legally aided person.