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Annual Report 2007 - Sample Cases 2007
Divorce
A client had been separated from her husband for a number of years. She had not been in the work-force for a long time as she had stayed at home to rear the children of the marriage. The children were no longer dependent and did not live in the home. The home was registered in the parties’ joint names. The husband had worked in the public service all of his adult life and he was close to retirement age. He had significant pension entitlements. He also had some savings and a number of investments. He had been paying maintenance since the marriage broke up. He was now seeking a divorce.
The client’s concern was that she would not be put out of the family home. A valuation of the house was obtained and calculations were also done in relation to the value of the husband’s pension and his other assets. Negotiations were initiated by the solicitors for both parties. It was eventually accepted by both parties that the value of the husband’s lump sum pension entitlement added to the value of his savings and investments, was roughly equal to the value of the home. On this basis it was agreed that the family home be transferred to the client on the basis that the client would waive any claim against the husband’s pension rights and his savings and investments. Maintenance arrangements were also agreed. Divorce proceedings were then instituted and the court granted a divorce and ancillary Orders on consent.
Access
A client contacted a law centre on account of difficulties he was experiencing having contact with his young child. He also wished to be appointed a legal guardian of the child. He had been in a relationship with the child’s mother, to whom he was not married, but the relationship had broken down and there was some animosity between them.
The solicitor wrote to the ex-partner explaining that the client wanted contact with the child and to be appointed its guardian, and that the client’s strong preference was to try and negotiate a solution rather than engage in a contested court case. The solicitor also recommended to the ex-partner that she seek her own legal advice and gave her details of how she could access legal advice or aid if she was unable to afford a private solicitor.
Shortly afterwards the solicitor was contacted by a solicitor acting on behalf of the ex-partner and negotiations took place. It was clear that, when it was explained to the ex-partner that the client wasn’t seeking to have the child come and live with him (i.e. custody), the ex-partner no longer had an objection to him being appointed a legal guardian of the child.
An Order was subsequently made on consent in the District Court appointing the client as guardian. It was also possible to negotiate suitable contact arrangements that had regard to the child’s social and educational activities. Facilities were also put in place to ensure that the client would be kept fully informed of the child’s progress in school. All parties considered the arrangements to be in the child’s best interests.
Divorce and Proceedings
A law centre was contacted late on a Friday evening on behalf of a seriously ill patient who wished to seek legal advice. On the following Monday, a formal application was made by the man in question to have a foreign divorce recognised and to marry his long term partner.
A difficulty had arisen for the applicant in that the Registrar of Marriages had a difficulty in relation to the recognition of his foreign divorce. The applicant was granted an emergency legal aid certificate. Court proceedings were drafted on the Monday and issued that day. The client’s solicitor travelled to a neighbouring town to serve his former spouse. She was advised fully of her rights to obtain independent legal advice. She had always considered that she was divorced and had no difficulty with the foreign divorce being recognised or, if that was not possible, a “fresh” divorce being granted. She swore an affidavit confirming her instructions. The client was not in a position to travel to a Court sitting. Through the Courts Service, arrangements were made for a Circuit Court Judge to travel to the client’s home and a court hearing was held there. The Judge granted the divorce on foot of the hearing and made an Order in respect of pensions.
After the divorce had been granted, an application was made on behalf of the client and his partner to dispense with the requirement to give three months notice to the Registrar of Marriages. The Order was drawn up the following morning and issued by the Circuit Court Office and delivered to the Registrar of Marriages. A special licence was granted and on the Thursday afternoon the Registrar attended at the client’s home so that the couple could be married. The client died a short time later having put all his affairs in order. The full co-operation of the law centre, medical facility, Courts Service staff, Circuit Court Judge and the ex-wife achieved what seemed an impossible task of obtaining a divorce and remarriage within three days.
Non-marital Proceedings
A client was experiencing unhappy differences with her partner, to whom she was not married. There were issues in relation to property and in relation to the financial upkeep of the children of the relationship. As it did not prove possible to resolve matters amicably, court proceedings were initiated under the Partition Act 1868 to 1876 in relation to the property. Proceedings were also issued under the Family Law Act 1995 and the Family Law Maintenance of Spouses and Children Act 1976. An application was then made to amalgamate the cases and to have all matters heard privately in the family courts (partition proceedings normally being heard in open court).
The court acceded to this application. The court then determined that her contributions were such that she was entitled to a 15% share of the property which was in her partner’s sole name. The client, who was the primary carer of the children of the relationship, was awarded significant maintenance for the welfare of the children of the relationship.
Asylum - Unaccompanied Minor
The Health Service Executive lodged an asylum application on behalf of an unaccompanied minor girl and registered her with the Refugee Legal Service. The girl, from an African country, had been sold by her parents at the age of 9 and was brought to a European country where she was forced to work for 4 years as a domestic servant and childminder for a couple of the same nationality. She was then brought to Ireland and worked for another year before she found the courage to escape. The people involved were already known to the Garda National Immigration Bureau (GNIB) and the girl’s evidence was crucial to the GNIB investigation into their alleged trafficking activities.
The girl attended her asylum interview with the Refugee Applications Commissioner and was accompanied by her social worker and her solicitor from the Refugee Legal Service. The solicitor made submissions that the girl was a victim of trafficking and that victims or potential victims of trafficking can fall within the definition of a refugee. It was submitted that there was a reasonable likelihood that the girl may face reprisals and/or possible re-trafficking should she be returned to her country of origin and that country of origin information showed that her own country is unable to offer sufficient protection to young girls who have been trafficked. The Refugee Applications Commissioner issued a positive recommendation and the girl was subsequently granted refugee status.
Asylum - Language Analysis
An asylum applicant from an African country had her asylum application refused by the Refugee Applications Commissioner. An appeal was lodged with the Refugee Appeals Tribunal. Subsequent to the appeal hearing, the Tribunal Member directed the Refugee Applications Commissioner to conduct a language analysis in order to establish whether the applicant spoke the language and dialect of her declared tribe and place of origin. The language analysis was conducted at the Office of the Refugee Applications Commissioner by way of a telephone conversation between the applicant and an analyst from a European language analysis company. The language analysis report was not in favour of the applicant.However, the RLS representative determined that the language analysis was seriously flawed. The profile of the language analyst revealed that he did not actually speak the particular dialect of the applicant. The applicant had even complained about this fact during the language analysis to the attending official of the Refugee Applications Commissioner. Furthermore, the findings of several language analysis companies, including the company engaged by the Refugee Applications Commissioner, had already been seriously discredited in other countries. The RLS representative made submissions to the Refugee Appeals Tribunal setting out the flaws of the language analysis and objecting to the use of the language analysis report. Despite these submissions the Tribunal Member relied on the language analysis and issued a negative recommendation. The RLS wrote to the Tribunal and asked for the decision to be revoked informally as it did not take into account the submissions made by the RLS. The Refugee Appeals Tribunal agreed to do so and the matter was remitted for a fresh determination before a different Tribunal Member. There are currently several Judicial Review cases pending challenging the use of language analysis reports.
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