23.5 million in legal fees – the shame!




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You have had a chance to read the article that appeared in the Irish Times (http://www.irishtimes.com/news/crime-and-law/childcare-cases-taken-by-hse-increased-by-20-per-cent-last-year-data-shows-1.1360218).  

There are a number of reasons that this makes me very angry, and why you should be very angry:

1.    You will know that in class during our discussions on the Child Care Act, I have always emphasised the need to seek out an approach that will avoid having to go to court. This is not saying that courts are inherently bad, or that judges are nasty. It is simply a fact that litigation and legal proceedings are very stressful, very expensive, very time consuming, and far more energy seems to be used on legal argument and tactical considerations than carefully considering what is actually best for the child in the circumstances. The fact that applications to court have gone up by 20% seems to indicate that the HSE do not share the same thinking, and this can only be bad news for children.

2.    23.5 million Euro in legal fees means 23.5 million of taxpayers’ money that could have been used to take care of children by providing services to children and their families which would have positive long-term consequences. Very often litigation or other legal proceedings are really stop-gap measures, a sticking plaster hiding the wound rather than curing it, as the problem is a social one, not a legal one. Let us use those millions trying to cure the problem as opposed to trying to temporarily mask the symptoms.

3.    Parents often complain that they are bullied and intimidated by the HSE’s willingness to call in the lawyers rather than trying to sort something out without the need for law and the courts. Again, this cannot be in the best interests of the child, who will love its parents (even if they are bad parents) and will often blame himself/herself if parents get into trouble. If there is even a small chance of a satisfactory arrangement being made with the parents, rather than excluding and alienating the parents, this option should be thoroughly explored, not for the sake of the parents (who have failed their child) but for the child.

4.    I have no doubt that Felix McEnroy SC is a superb lawyer and probably a lovely man, and I also have no doubt that he worked very hard to earn his 1.3 million Euro from the HSE. The question that needs to be asked is that, assuming for the moment that it was necessary to go to court in every instance, was it necessary to use such a senior lawyer? The Child Care Act is not a difficult Act to understand and implement, and the procedures contained therein are relatively straightforward. Why did the lawyers for the HSE (Arthur Cox), not do a lot of that work themselves or hire younger / less senior / less expensive barristers to do a lot of that legal work? Better still, why does the HSE not bring in a mediator to try and work out an arrangement between the parents and the HSE where, if the child does need to be taken into care, it can be done on a voluntary basis in terms of Section 4, with a comprehensive working agreement being reached between the parents and the HSE. Co-operate, don’t litigate.


Many of you will one day either work for the HSE, or have extensive dealings with the HSE. As citizens, and maybe as taxpayers and parents, this sort of carry-on has a direct (and damaging) impact on you and on your children. You can make a change by talking about these things, by making your views known to your employers, to your colleagues, to your local TDs, and so forth. You should be angry, and if you are not, why not?



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