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Monday 25 September 2023 Dublin: 18°C
Leah Farrell/ Fianna Fáil TD Jim O'Callaghan.
# legal aid
TDs call for expanded legal aid for domestic violence after judge warns 'working poor' lose out
TDs including Fianna Fáil’s Jim O’Callaghan were speaking after a District Court judge called for mandatory free legal aid in domestic violence cases.

FIANNA FÁIL’S JUSTICE spokesman Jim O’Callaghan has called for the government to “carefully consider and act upon” remarks made by a District Court judge in which he called for mandatory legal aid for all domestic violence cases.

Opposition justice spokespeople have also called for the legal aid income threshold to be revised, with Labour’s Aodhán Ó Ríordán pledging to raise Judge John Campbell’s remarks with Minister for Justice Helen McEntee when the Dáil resumes.

Speaking at a conference on domestic violence and child protection on Friday, Judge Campbell said “the working poor very often will lose out” on legal aid due to the “strict requirements” in place.

The judge said the court can make an order that they be provided with legal aid, but they do not qualify as a right “which hampers the fair procedure of the case”.

In order to quality for legal aid, you must have an annual disposable income of less than €18,000 and disposable assets of less than €100,000.

There is no contribution required in child-care and domestic violence cases. However, victims still need to come within the disposable income and capital thresholds.

The financial eligibility threshold for income was last revised in 2006, while the threshold for capital assets was last revised in 2013.

Echoing Judge Campbell’s remarks, Jim O’Callaghan told The Journal that legal aid in family law cases should be more broadly available.

“At present, our civil legal aid system does not provide support for most litigants appearing before our family courts. In fact, the vast majority of people are excluded because they must have an annual disposable income of less than €18,000 and disposable assets of less than €100,000,” he said.

“Consequently, most ordinary people before the family courts are excluded and must pay the full costs of legal representation. This can be prohibitive, particularly since many family law cases are prolonged and require many appearances before the courts.”

He added: “It is notable that most people accused of criminal offences get criminal legal aid but there is no equivalent level of support in the civil sphere even though family law cases involve issues and rights of fundamental importance such as the rights of children.”

Labour TD Aodhán Ó Ríordáin has also called for the “extremely low” legal aid threshold to be examined in the wake of the judge’s remarks.

“I think often the judiciary can often be accused of being slow to demand change in what’s in front of them, but certainly in this case, it seems to me that it makes absolute sense that free legal aid be made available to anybody in that sort of situation, particularly when it comes to children,” he told The Journal.

If this is somebody at the coalface who has seen exactly the limitations of the system, I think the political system needs to take that view into consideration and to do something about it. 

Ó Ríordáin, who is Labour’s justice spokesperson, said that people can be “put off” by the perception of court battles being extremely expensive.

“In a domestic violence case or child protection case, they’re thinking about the next steps in their lives: where they’re going to live, how they’re going to live, how they’re going to finance the new reality that they’re facing,” he said.

“Having a legal bill on top of that is not something that they really want to countenance. It may make somebody second-guess taking that step.”

He said he will be raising the issue with the Minister for Justice Helen McEntee when the Dáil returns.

“I think any of these areas where people see a part of the system not working for a particular reason, then the political system has to react to that,” he added.

“I’m not in court every day, but this man is, and he sees these very important cases in front of him, and if that’s an issue that he has highlighted as being a problem, that people aren’t getting justice as a result, or protection as a result, well then we have to iron that out.”

In June last year, the Justice Minister established the Civil Legal Aid Review Group to review the current operation of the Civil Legal Aid Scheme and make recommendations for its future.

A consultation process was opened as part of the review. A call for submissions, from key stakeholders, launched in November 2022 and closed on 28 February this year.

A public survey was also launched for those who have experience of the civil legal aid scheme or who have applied for it to inform the review. The survey also closed on 28 February 2023.

In a statement to The Journal, Sinn Féin TD and justice spokesperson Pa Daly said the party made a submission to the review. 

“In that submission, we supported the review of income thresholds and we also feel the delays in accessing legal aid must be addressed too,” he said.

“In addition, we raised concerns about the coverage of some parts of the country by solicitors, with many either leaving the scheme or acting for the other party in certain proceedings. The report, under Justice Frank Clarke, will hopefully be published soon, and we eagerly await the government’s response.”

Responding to a Parliamentary Question on the legal aid threshold in April, then-interim Justice Minister Simon Harris said the third strand of consultation, which focused on “hard to reach groups”, was “approaching conclusion”.

He said the results of all elements of the consultation were being reviewed by the Review Group. “This review will include consideration of eligibility thresholds,” he said. 

“I am aware of the pressures people are facing at the moment regarding the cost of living and of the potential impact this may have. My officials are working with the Legal Aid Board to examine whether there are steps might feasibly be taken in the short-term pending the outcome of the wider review,” Harris said. 

In a statement to The Journal, a spokesperson for the Department of Justice confirmed that eligibility for legal aid in domestic violence cases, and all other cases, is being considered as part of the review of the Civil Legal Aid Scheme.

“The review will allow for an assessment of how flexible and responsive the Scheme is to the needs of those it is intended to serve, including in relation to financial eligibility,” the spokesperson said.

“However, Department officials are also working with the Legal Aid Board to examine whether there are steps that might feasibly be taken with respect to eligibility in the short-term pending the outcome of the wider review.”

The spokesperson also said that work to draft and agree a detailed implementation plan for the Zero Tolerance domestic violence strategy for next year is currently underway.

“At the time of publication, the Minster stated that the Strategy and its implementation plans were to be living documents to which additional actions could be added if needed to best meet need the needs of victims and survivors.”

The spokesperson also acknowledged the publication of the first Family Justice Strategy last November.

The three-year strategy contains nine goals and over 50 actions “that lay the foundation for a reformed, user-friendly and child-centred family justice system that helps children and families obtain earlier, appropriate resolutions in a more effective way”, they said.

Implementation of the strategy is being led by the Family Justice Implementation Group (FJIG), who will consider the work of the Civil Legal Aid Review Group and its report, particularly as to whether the Scheme is meeting the needs of those families who engage with it.

With reporting from Christina Finn

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