LETTER TO THE EDITOR

0
2022

Dear Editor,
I read with interest your articles dealing with the interface between people with intellectual disability and the legal system. Most were very interesting. In relation to people with ID who are involved in childcare proceedings as parents, I think you might have mentioned the Brady circular which refers to such clients’ right to a support person to ensure their position is put in court and that they have an understanding of the legal process.

The Legal Aid Board has a statutory duty to provide legal aid to all those fulfilling the criteria and under a certain income level—and this usually includes parents with ID who are involved in childcare proceedings. Under the Brady circular (which followed a High Court review of a particular case in 2006—see the note below), the Legal Aid Board will fund payments to people where the Court is of the opinion that without this assistance the person will not be able to participate in the legal proceedings. This could be seen as part of its duty of making its services accessible to people with disabilities under the Disability Act 2005 and may prevent subsequent challenges to Childcare Orders on the grounds that the parent(s) concerned did not understand what was going on.

The circular stated that the purpose of appointing a person to assist clients of impaired capacity was to ensure the provision of an effective legal aid service to the person. This is to ensure that the person receiving legal aid has an appreciation of the nature of the proceedings and of the matters being raised and is in a position to give adequate instructions. ‘The person must have some capacity, but the solicitor must be of the opinion that the capacity is so impaired that it is essential that the solicitor have professional assistance to communicate effectively with the client in relation to the subject matter of the proceedings.’ (Legal Aid Circular 2/2007).

The person appointed to assist will not act as a Guardian ad Litem (he/she will not have responsibility for presenting the client’s best interests) and will not directly instruct the solicitor. The circular sees this person’s role as explaining proceedings and possible outcomes, relaying information from the solicitor to client and vice versa, and attending the court on occasions where the solicitor advises it. The Legal Aid Board has a schedule for payments and the number of meetings it will cover-

The need for this service has grown as the number of childcare proceedings brought by the HSE has increased in the last five years—probably following the publication of reports on particular child abuse cases. A minority of these proceedings involve people with ID (or sometimes people with ID and mental health difficulties). The Legal Aid Board usually sources suitable people locally—sometimes individuals with experience of law and disability and sometimes the National Advocacy Service for people with disabilities (NAS) which provides wider advocacy.

I hope this may provide some useful information to those involved in childcare proceedings and those supporting them. It is important that court proceedings are designed so that people with ID can understand and participate, and that there is no prejudice against them purely because of their disability. Equally it is important that a range of tailored parenting supports are available to them, so that any deficits identified are, wherever possible, compensated for, while allowing the child(ren) to remain with the parent(s).
Sincerely, Máiríde Woods

Note: The solicitor involved sought a type of Guardian ad Litem for his client because he did not understand her instructions. He eventually initiated a High Court judicial review of the case which involved the Irish Human Rights Commission (IHRC) as amicus curiae. In June 2006, the IHRC made two submissions to the Court, citing the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities. In March 2007, the case was settled between the parties following an agreement that the Legal Aid Board would arrange funding for appropriate persons to provide assistance and support to clients in childcare cases where the client’s capacity is impaired. (Guidelines on the appointment of such persons were set out in Legal Aid Circular 2/2007).

Extract from the introductory memorandum to the Decision making Bill detailing “Court friends” which is of relevance to supporting people with an ID in court cases.

Section 60 (Court friends) allows the Public Guardian to appoint a court friend to assist the relevant person in court proceedings. It requires the Public Guardian to appoint a court friend to assist the relevant person where the relevant person has not instructed a barrister or solicitor and there is no decision-making assistant, codecision-maker, decision-making representative, attorney or court friend to assist the relevant person in the course of a hearing (subsection (1)). Subsections (2), (3), (4) and (5) outline the functions of a court friend. Subsection (3) allows a court friend to examine and take copies of records, including health records, relating to a relevant person and to interview the relevant person in private.
Subsection (4) provides that a court friend may not examine and take copies of any health record of a relevant person unless he or she is a registered medical practitioner. Subsection (5) requires the court friend to assist and support the relevant person in court and to promote the interests of the relevant person in court if the relevant person is not attending the hearing. Subsection (6) allows a court friend to attend and represent the relevant person at meetings, consultations or discussions, in connection with an application under Part 4.
Subsection (7) provides that the appointment of a person as a court friend is subject to such terms and conditions as the Minister, with the consent of the Minister for Public Expenditure and Reform, may deem appropriate. Subsection (8) allows a suitable person who is willing and able to assist a relevant person during the course of a court hearing in relation to an application under Part 4 to carry out the same functions as a court friend. Subsections (2) to (6) apply to the person assisting the relevant person in court as they would apply to a court friend.
Section 61 (Panels to be established by Public Guardian) requires the Public Guardian to establish panels of suitable persons willing and able to act as decision-making representatives (subsection (1)), special visitors (subsection (2)), general visitors (subsection (3)), and court friends (subsection (4)) from which the Public Guardian must nominate persons to be appointed as decision-making representatives, special visitors, general visitors and court friends, as the case requires.

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