Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 19th December, 2018

DATE OF ORDER: 19th December, 2018

DATE OF PERFECTION OF ORDER: 20th December, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 16th January, 2019 AND WAS NOT IN TIME.

General Considerations

1. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions (2017) IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

2. Furthermore the application for leave filed and the respondent’s notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.

3. In that context it should be noted that the respondent does oppose the grant of leave.

4. No declaration of unconstitutionality or incompatibility with a provision of the European Convention of Human Rights is sought, nor does either party ask this Court to make a reference to the Court of Justice of the European Union or to depart from or distinguish one of its own decisions.

Background

5. The Applicant herein brought family law proceedings against the mother of his infant child. In the course of those proceedings, the Applicant had been granted civil legal aid. An order providing for access was made in favour of the Applicant. Difficulties appear to have arisen in relation to access and the Applicant sought to rely on the provisions of s. 5 of the Courts (No. 2) Act 1986 which provides for the enforcement of orders granted under s. 11 of the Guardianship of Infants Act 1964 by making it an offence to fail to comply with the terms of an order made pursuant to s. 11 of the 1964 Act. The Applicant sought civil legal aid to assist him in the prosecution of the proceedings under s. 5 of the 1986 Act but this was refused by the Legal Aid Board on the basis that it was not within their remit given that proceedings under s. 5 of the 1986 Act are criminal in nature and thus do not come within the civil legal aid scheme. It is contended by the Applicant that the interpretation by the Court of Appeal of the provisions of s. 27 of the Civil Legal Aid Act 1995 is wrong insofar as it concluded that there was no power to provide legal aid in respect of enforcement actions under s. 5 of the 1986 Act, thus preventing a litigant such as the Applicant who was in receipt of legal aid in the course of the family law proceedings from effectively enforcing the rights obtained under s. 11 of the Guardianship of Infants Act 1964.

6. Section 27(1) of the 1995 Act provides as follows:

"In this Act 'legal aid' means representation by a solicitor of the Board, or a solicitor or barrister engaged by the Board under section 11, in any civil proceedings to which this section applies and includes all such assistance as is usually given by a solicitor and, where appropriate, barrister in contemplation of, ancillary to or in connection with, such proceedings, whether for the purposes of arriving at or giving effect to any settlement in the proceedings or otherwise."

7. At the heart of this case is the interpretation of the phrase "ancillary to or in connection with, such proceedings,", such proceedings being as described in s. 27 as "any civil proceedings". Proceedings under s. 5 of the 1986 Act concern a criminal offence and the issue raised therefore was whether a prosecution under s. 5 could be described as being "ancillary to or in connection with" the family law proceedings. The Court of Appeal reached the conclusion that the Applicant was not entitled to civil legal aid for the purposes of an enforcement prosecution under s. 5 of the 1986 Act on the grounds that prosecutions of such proceedings under that Act are criminal proceedings. Accordingly, it concluded that those proceedings were not "ancillary to or in connection with" the civil proceedings in the family law proceedings involving custody and access.

8. It is contended on behalf of the Applicant that the interpretation of the Court of Appeal on the provisions of the 1995 Act gives rise to a public interest concern of fundamental importance in relation to ensuring that Irish law provides for effective access to the courts as safeguarded under the Constitution. It is also contended that this gives rise to an issue in the interests of justice, namely the right of effective access to the courts. The issue in this regard is said to be whether or not the 1995 Act provides real and effective access to the courts in vindication of rights secured under law to persons with insufficient means to access the courts.

9. The Respondents in their response reiterate that s. 27 of the 1995 Act is not ambiguous in its terms and that as an application to enforce an access order under s. 5 of the 1986 Act constitutes a criminal prosecution in form and effect, it cannot be construed to be "ancillary to or in connection with" civil proceedings such as to give rise to an entitlement to legal aid under s. 27. It was contended that the Applicant's right to real and effective access to the courts does not depend on the provision of civil legal aid to assist him and represent him in bringing a s. 5 prosecution against the mother. Other more appropriate civil remedies under the Guardianship of Infants Act under s. 11 are available. Such remedies would be possible to seek with the benefit of civil legal aid under the 1995 Act.

10. It was pointed out on behalf of the Respondents that in any event the rights to access in the order grounding the s. 5 prosecution were extinguished and superseded when the parents agreed to vary access and had that agreement ruled by the District Court in July 2015. The prosecution was not maintained. Thus, it is pointed out that no live issue exists and therefore there is no issue of general public importance. It is further pointed out that an array of new remedies and provisions under the Children and Family Relationships Act 2015, each with the benefit of civil legal aid under the 1995 Act, means that no issue of public importance arises in the terms of this case.

11. It is also argued that this case does not give rise to any issue under the heading of the interests of justice. A comparison by the Applicant with the decision of the European Court in the Airey case is distinguished on the basis that that was about the provision of legal aid to assist a party in the substantive determination of rights and obligations and not a case where a parent seeks legal aid to assist in prosecuting the custodial parent for a breach of an access order notwithstanding the alternative means of enforcing access with the availability of free civil legal aid.

Decision

12. In circumstances where the Applicant is no longer seeking to prosecute the mother of the child under s. 5 of the 1986 Act, it seems to the Court that these proceedings are moot. It could no longer be said that any issue arises in respect of the Applicant which requires an appeal to this Court on the grounds that it is necessary in the interests of justice to permit such an appeal. Furthermore, in circumstances where the Children and Family Relationships Act 2015 has come into force in respect of guardianship, custody and access issues and has amended the law so as to provide a number of options to parties who wish to seek enforcement orders with the benefit of civil legal aid subject to an assessment of means, it is hard to see how any issue of general public importance could be said to arise. In those circumstances the Court is satisfied that it would not be appropriate to grant leave to the Applicant in this case.

13. Accordingly, the Court refuses the application for leave. It is not necessary to consider further the application to extend the time in the circumstances.

And it is hereby so ordered accordingly.