Judge concerned about denial of legal aid due to exceeding the threshold as interim care orders extended – 2023vol1#52

A judge in the Dublin Metropolitan District deemed it an injustice that the father of children, the subject of the Interim Care Order, could not obtain legal aid due to barely exceeding the monetary threshold as he worked.

The court was told that an interim care order had been granted in early 2022 and related to two young children, A and B.

The Child and Family Agency (CFA) solicitor told the court that the parents were not engaging and had no awareness of any of the issues. She said that there were concerns in relation to drug use and in relation to the condition of the home. The solicitor said that the mother was consenting to the interim care order extension but that the father was not present.

The solicitor told the court that the parental capacity assessment was underway and that a number of supports had been identified for the children.

The mother’s solicitor said that his client consented on a without prejudice basis to the extension. He said he had not actually met her face to face. He also updated the court on the fact that the father was not legally represented but that he had made an application to the Legal Aid Board which had been turned down. The father had been advised to reapply. The solicitor added that he was worried that the mother was not turning up to court.

The court was informed that the guardian ad litem (GAL) supported the application. The GAL had previously said it was necessary for supervision of the access to be outsourced to an external agency. She said that the father had attended access at the weekend but that the mother had not.

The court was informed that the father had made a further application for legal aid but had been told he would not meet the threshold. The GAL was going to speak with the father about other options. The GAL was of the view that the father’s involvement had a positive impact for the mother. In relation to the children, the GAL had been working hard behind the scenes and had progressed the boy’s assessment of needs which was almost completed and that they were trying to get the necessary services publicly provided.

The social worker gave evidence that the parental capacity assessment had been commenced and had been due to be completed by the end of February but had been delayed due to availability. The social worker confirmed that access took place on the previous weekend and was up and running every second week. The mother had missed two access visits during the week and had not attended the weekend access.

The father had attended midweek access and had attended two weekend access visits. Referring to urine samples, the social worker said that the parents did not feel safe going to the facility. The court heard the social work team could provide funding for another private clinic.

The judge asked about the parental capacity assessment and was told that the assessor needed to observe an outstanding access visit and visit the parents. The social worker confirmed to the judge that she had tried to contact the assessor without success. The solicitor for the GAL asked whether a private practitioner’s assessment could be done for the boy.

The GAL said that the boy had been very vocal in relation to access and had been happy to see his father. She had observed access with the mother which had gone quite well but the mother was a bit down in relation to the visit. She had visited the parents in their home. She said that the father was in a much better state of mind and that he was able to get to access and was happy but she found the mother was a little bit flat and down at times. She had missed access and that caused anxiety for the boy.

In relation to the girl, the GAL said she was making good progress with her language.

In relation to the boy’s assessment, the GAL said that overall the boy had made good progress, he was highly intelligent but he got bored very quickly and he gravitated toward adults. The GAL said that she had prepared a letter for the father regarding his Legal Aid application and this was in addition to a letter the social work department had drafted. The father had been advised to follow up further with the Legal Aid Board.

The court was told that the mother had missed visits, sometimes due to illness. The mother was on the list for a cognitive assessment through the mental health team. A Signs of Safety meeting had taken place which the parents, social worker, grandparents and mother’s brother had attended.

The judge said that it seemed that the father was working and because he was working he was being penalised by the Legal Aid Board and by not meeting the threshold he was being denied legal services.

The GAL said that when both parents were at access it worked better but that the father’s work was important to him. She also said that the communication from the parents was not as good as it might be.

The judge noted that the mother was consenting on a without prejudice basis. He noted that the threshold evidence had been met and that the court had been provided with an update in relation to the parental capacity assessment and the assessment of needs. He noted that the GAL supported the application and he extended the interim care orders as requested.

The judge indicated that the absence of a legal representative for the father was concerning to him and that he was coming to the view that this was an injustice to this man. He referred to the AO decision of the superior courts. He said that the CFA might need to intervene and he asked the CFA about funding. He said that in his view the CFA were not short of funds but might be short of manpower. He asked the CFA solicitor to take instructions in relation to this point.