A homeless mother who successfully fought an attempt to take her newborn baby into care was wrongly refused her legal costs because the State's legal aid system had reached its quota in the month she applied, the High Court has ruled.
Ms Justice Mary Faherty ruled the District Court must reconsider its refusal to pay the legal costs incurred by her lawyers after they continued to work for her for free, resulting in the Child and Family Agency (CFA) withdrawing its application to put the baby in care.
The CFA had sought the care order after one of its social workers said the baby was at risk of suffering or neglect due to the mother’s homelessness and her lack of preparation for the birth which took place in April 2016.
The social worker said the baby would also be at risk by reason of allegations of numerous incidents of physical abuse which had been made against the woman and members of her extended family by the woman’s niece and nephew. There were also allegations by the niece and nephew of sexual abuse.
Ms Justice Mary Faherty said the District court judge took into account the fact the woman had applied for free legal aid before the care hearing began and was refused.
This was not something the District court judge was entitled to do in the exercise of her jurisdiction particularly having regard to previous High and Supreme Court rulings on this matter, she said.
The judge noted the woman had in April 2016 asked her solicitor Pól Ó Murchú to represent her and he applied for a free legal aid certificate but was told the quota for such certificates had been exceeded for that month and the Legal Aid Board would not be in a position to provide aid.
Mr Ó Murchú, who the judge described as a professional with “an expertise and a dedication in these particular matters”, along with her barrister, decided, given the seriousness of the situation facing their client, they had no option but to continue to act for her.
Mr Ó Murchú , among other things, got a psychologist to prepare an expert report on the credibility of the abuse allegations made by the niece and nephew.
On April 19th, the CFA withdrew its care order application after the woman’s sister offered to take the woman and her baby in. The woman also agreed to a supervision order and safety plan put forward by the CFA.
Mr Ó Murchú then applied for legal costs but the CFA opposed that, saying it was not an exceptional case. The District court judge agreed.
Ms Justice Faherty said she was satisfied the frailty which attached to that decision “impacted upon its lawfulness”, quashed the decision and sent the matter back to the District Court for fresh consideration.