Children and Section 117 Claims under Succession Act 1965

Under the provisions of Section 117 of the Succession Act 1965 where a child of a deceased parent can show that the deceased has failed to make proper provision for the child in accordance with his means whether by will or otherwise, the child can bring an action pursuant to the Act for relief. The definition of a child includes adopted, non-marital, foster and step children. Whereas the Courts are reluctant to intervene in an estate of someone who has made a will with specific provisions contained therein it will intervene if an applicant can show that; the parents had a moral duty to provide, the parents failed in that moral duty and the applicant child now has a need.

A section 117 application must be made within six months of first taking a grant of representation in the deceased’s estate. There is however no obligation on an executor to an estate to notify the children of their right to bring a Section 117 claim.

In one of the most recent reported cases under section 117 X.C. v. R.T.(Succession: proper provision) Kearns J. set out with approval the relevant principles which had been agreed by counsel as established by the considerable body of case law. Kearns J. said that;-

“Counsel on both sides were agreed that the following relevant legal principles can, as a result of these authorities, be said to derive under section 117:-

(a) The social policy underlying section 117 is primarily directed to protecting those Children who are still of an age and situation in life where they might reasonably expect support from their parents, against the failure of parents who are unmindful of their duties in that area.

(b) What has to be determined is whether the testator at the time of his death, owed any moral obligation to the children, and if so, whether he has failed in that obligation.
(c) There is a high onus of proof placed on the applicant for relief under section 117, which requires the establishment of a positive failure in moral duty.

(d) Before a court can interfere, there must be clear circumstances and a positive failure in moral duty.

(e) The duty created by section 117 is not absolute.

(f) The relationship of parent and child does not itself and without regard to other circumstances, create a moral duty to leave anything by will to the child.

(g) Section 117 does not create an obligation to leave something to each child.

(h) The provision of an expensive education to a child may discharge the moral duty as may other gifts or settlements made during the lifetime of the testator.

(i) Financing a good education so as to give a child the best start in life possible and providing money, which, if properly managed, should afford a degree of financial security for the rest of one’s life, does amount to making proper provision.

(j) The duty under section 117 is not to make adequate provision but to provide proper provision in accordance with the testator’s means.

(k) A just parent may take into account not just his moral obligations to his children and to his wife, but all his moral obligations e.g. to aged and infirm parents.

(l) In dealing with section 117 applications, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.

(m) Special circumstances giving rise to a moral duty may arise if a child is induced to believe that by, for example working on a farm he will ultimately become the owner of it, thereby causing him to shape his upbringing, training and life accordingly.

(n) Special needs would also include physical or mental disability.

(o) Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong to foster.

(p) Although the court has very wide powers both as to when to make provision for an applicant child and as to the nature of such provision, such powers must not be construed as giving the court a power to make a new will for the testator.

(q) The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but, rather, whether the decision of the testator to adopt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.

(r) The court must disregard the fact that parents must be presumed to know their children better that anyone else.”

If you feel that adequate provision has not been made for you under your parent’s will please consult with us with you without any obligation. To make an enquiry please phone us at 01 6797939, or fill in our Online Enquiry Form.

Damages for Mental Injury and Post Traumatic Stress Disorder

Post Traumatic Stress Disorder or PTSD and other mental injuries are life changing events for many people.  PTSD itself is an anxiety disorder which can be traced directly to an original trauma which a person has either experienced or been exposed to, or in which that person has been directly involved.

It is a compensable category of damages in personal injury cases if negligence is proven against the person responsible for its causation.  It can also arise out of a trauma occasioned to an employee in the course of his employer’s employment where the employer has been negligent.  Such trauma can be caused through negligent work practices or indeed may be work stress, bullying, or harassment related, but must be reasonably foreseeable in causing the psychiatric illness.

A case involving psychiatric injury in the form of PTSD involves some trauma or tragic event.  It usually follows exposure to “an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury or other threat to one’s physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm or threat of death of injury experienced by a family member or other close associate. The person’s response to the event must involve intense fear helplessness or horror. The characteristic symptoms resulting from the exposure to the extreme trauma include persistent re-experiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, and persistent symptoms of increased arousal. The full symptom picture must be present for more that 1 month and the disturbance must cause clinically significant distress or impairment in social, occupational or other important areas of functioning”

Irish courts rely on medical evidence based on these criteria in making awards of compensation, although not all cases are compensable in Irish Law.  There are some categories of cases which are not capable of being compensated, for example a plaintiff who brings a claim for grief or bereavement (which is not classified as mental injury) for the loss of a loved one arising out of the negligence of a third party, or  a soldier who develops a psychiatric disorder from combat per se. However damages can be awarded in such situations where a psychiatric injury has been caused or contributed to by the plaintiff’s employer who exposes the plaintiff to unnecessary risks or who fails to monitor or treat early signs of that injury.

PTSD as a general rule normally shows and manifests itself within three months of a trauma occurring, although there are many cases where this does not happen within this time frame. Diagnosis of PTSD is done by means of psychiatric assessment through the interview process, although other complementary and more sophisticated methods for its diagnosis also exist.   It is generally treated though a combination of medication and psychotherapy.

Even though a plaintiff may be suffering from a psychiatric disorder, the law nonetheless requires as a general rule that there exist a degree of proximity of a plaintiff to an accident itself, as well as proximity of a relationship between a plaintiff and a victim of an accident. The psychiatric injury must be caused by reason of a defendant’s negligent act or omission, and it must be an actual apprehended physical injury to the plaintiff or to a person other that the plaintiff.  Additionally there must exist a duty of care between a plaintiff and a defendant, and the event complained of must be reasonably foreseeable.

If you have been unfortunate enough to be a victim of a trauma which has resulted in PTSD or some other form of psychiatric illness as a result of the negligence of third party, you may have a remedy in law.

Our firm has successfully dealt with many accidents over many years resulting in PTSD, nervous shock, and other forms of psychiatric illness. If you have been the victim of a trauma which has resulted in any of these illnesses we can help you.

Please contact us at (01) 6797939 or;
Email us at info@astapleton.com
for a free assessment of your case.

Child Abduction and the Hague Convention

The Hague Convention has been adopted in some 84 countries and seeks to ensure that any child who is under the age of 16 years of age and who has been abducted or wrongfully removed from his or her country is returned to it. Its implementation in Irish Law is under the Child Abduction and Enforcement of Custody Orders Act, 1991

In the main the function of the convention is to seek the return of children to their habitual place of residence from some other country to which they have been brought and in which they are being detained.

For the purposes of the Convention a child means a person of any nationality, so long as he is under the age of 16 years of age and has not the right to decide on his own place of residence under the law of his habitual residence, the law of his nationality or the internal law of the State addressed.   The usage in the act of the term “child abduction” is not particularly helpful because in most cases children are brought from one jurisdiction to another by one of their parents, or perhaps their guardians to whom their care has been entrusted.

A child’s removal or retention is considered to be wrongful if it is in breach of the custody rights of a person or an institution which may have been granted custody rights, where those custody rights have been exercised in the State of habitual residence of that person.

Each country under the Convention designates a Central Authority which will deal with other Central Authorities to procure the return of the child. In Ireland this function is carried out by the Minister for Justice. In practice what happens is that if a child is abducted from its habitual place of residence to another country where it is now being detained, the Minister for Justice here contacts the Central Authority in the country to which the child has been removed with a view to seeking the child’s return. Central Authorities are obliged to co-operate with one another and to take immediate steps to discover the whereabouts of a child who has been wrongfully removed or retained and to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child.  Under Article 8 any person institution or body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or the Central Authority of any other Contracting State to the Convention for assistance in securing the return of the child.

In cases where a child has been abducted an applicant who has a right to free legal aid and the applicant should then contact a solicitor or a law centre who will then make an  application to the High Court for the return of the child. The High Court is obliged under Article 11 of Regulation 2201/2003 to have court procedures which are the most expeditious procedures available in national law so as to ensure there is no delay in dealing with a person’s application, and the Court is obliged to issue its judgment within 6 weeks normally, except where delay is unavoidably encountered.

Under Article 11(2) of Regulation 2201/2203 a child who is abducted is given the right to be heard in any proceedings unless this would be inappropriate having regard to his or her age or degree of maturity. In practice children who are 8 years or older are interviewed by a child psychologist or social worker or some other person who has experience in dealing with children. This person then prepares a report for the court which is then sent to both parties. Following the report either party can request the person who prepared the report to be available in court for cross-examination.

At the core of the Convention is the basic premise that any child who has been wrongfully removed in respect of whom an application has been made within one year of that child’s removal, must be returned to the country of habitual residence. Furthermore, Article 12 imposes a mandatory obligation to do so.  The rationale for this is simply that the courts in a child’s country of habitual residence are seen as the most appropriate forum for determining custodial and other disputes and ultimately best placed to act in the child’s best interests where there are disputes between the child’s parents.

There are however some exceptions to Article 12 which imposes a mandatory obligation on the courts to return a child which are dealt with in Article 13. The exceptions are as follows:

• The rights of custody were not actually being exercised at the time of removal or retention
• The applicant consented to or acquiesced in the removal or retention
• That the return of the child would expose the child to physical or  psychological harm or otherwise expose the child to an intolerable situation.
• Where the child objects to being returned and has reached an age and level of maturity which is appropriate to take account of his or her views
• Where it is established that 12 months have elapsed before the date of the application and the child is now settled in a new environment.

It should be pointed out that even where the above exceptions have been established the courts still have a discretion to order the child’s return and will ultimately act in what it feels is in the best interests of the child.

Many cases before the courts are resolved without full hearing where the parties are able to agree terms and put in place orders under the Guardianship of Infants Act, 1964 and the Family Law Act 1995 affecting the child’s welfare.  In cases where proceedings have already been started in the High Court for a child’s return or indeed been initiated in some other court seeking custody orders in the District or Circuit Courts, then these proceedings must be stayed once an application has been made under the Convention.

Personal Injuries Assessment Board/Injuries Board required to deal with solicitors.

Source: O’Brien -v- Personal Injuries Assessment Board (2008) Supreme Court 19th December 2008

In a recent Supreme Court decision delivered by Mrs. Justice Denham it was held that if an applicant brings a case to the Personal Injuries Assessment Board (PIAB) now the (Injuries Board) he or she is entitled to have a legal representative.

By way of background, the case came as an appeal by PIAB to a ruling of the High Court which upheld the right of a claimant who had lodged a claim with PIAB to be represented by a solicitor in dealing with the Board. The case arose when the applicant was injured at work. When he returned to work he claimed he was unable to work at the same level as previously and as a result he was at a financial loss, and that he suffered personal injury.

The applicant had instructed his solicitor to lodge an application form with PIAB on his behalf and had signed a “confirmation and authority” form with his solicitor so he could act on his behalf and which his solicitor then sent to PIAB.

When the form was lodged with PIAB, the Board instead of writing to his solicitor wrote to the applicant Mr. O’ Brien himself, which was neither what he wanted nor what he had instructed the Board to do.

In this case the applicant had difficulties in getting a medical report, and he had serious concerns that his case might be statute barred (i.e. not brought within the three year timeframe then allowed, now two years in most cases).  His solicitor wrote to PIAB indicating that the Board was not acting in accordance with the wishes of his client by refusing to deal with him.

This did no deter the Board who phoned Mr. O’ Brien directly indicating that it would not deal directly with his solicitors, but indicated that it would provide copies of its correspondence only with Mr. O’Brien. He was also told that his case could not be registered without a medical report. This had serious consequences for Mr. O’ Brien as his claim was nearing the time when it needed to be registered, and he felt he would not be in a position to process it unless he could act through his solicitor who had the necessary skill and knowledge to protect his interest in the matter.

Through his solicitor he then brought judicial review proceedings in the High Court seeking an order to stop PIAB interfering in his solicitor/client relationship. Mr. Justice MacMenamin held in the High Court that there was a right to legal representation in administrative procedures when the matters in issue might have serious consequences or impinge on a party’s rights. He also found that PIAB was in breach of Section 7 of the 2003 Act for refusing to deal with a solicitor

The Supreme Court also said that “legal representation is a right of special importance in common law jurisdictions where the legal system is adversarial. Any restriction of the right to legal representation would have to be addressed clearly in legislation”.

Clearly the above case would appear to demonstrate that PIAB would prefer if solicitors were not involved in advising claimants who bring claims before the Board. One has to ask why?

In the light of PIAB’s apparent wish to deal with applicants without their legal advisors one indeed has to query its motive? The Board is well aware of the importance of any applicant getting good legal advice but would prefer if the applicant did not have the benefit of it.

This case shows the importance in our view of getting proper legal advice from a solicitor in initiating any case with the Board for personal injury. We would strongly suggest to any applicant who wishes to bring a case that they do so only when they have made contact with a solicitor.

We often advise our clients to refuse offers of compensation made by PIAB for a variety of reasons.  We have found in practice that on many occasions PIAB make offers of compensation to claimants when the medical evidence to support the offer is not in our view sufficiently complete, or indeed where there has been no final medical prognosis.  In many of these cases the claimants invariably go on to subsequently receive higher offers of compensation either through negotiations conducted by us with an insurance company on their behalf or through the Courts.

A word of caution; where an unsuspecting claimant, or a claimant without adequate legal advice, accepts an offer of compensation from the Board prematurely and continues to suffer from his or her injuries into the future, there is in such circumstances generally no prospect of seeking further compensation, and the claimant is stuck with the original award.

Finally, the firm of Aidan T Stapleton & Company has for many years successfully acted for Plaintiffs throughout Ireland who consult with us with regard to various types of accidents. In the main these consist of  industrial accidents, accidents at work, road traffic accidents, road traffic accidents causing death, road traffic accidents causing serious personal injury, slip and fall accidents in public places, accidents abroad on holiday, and  medical negligence cases, though not exclusively confined to the above.

As our firm also acts for both Plaintiffs involved in accidents, and for Insurance Companies representing the interests of Defendants,  we are very well placed to give appropriate and meaningful legal  advice to Plaintiffs who consult with us so that their interests are properly represented.

If we can be of any further assistance then please do not hesitate to contact us on 01677939 or e-mail us at info@astapleton.com

Introduction to the Immigration, Residence and Protection Bill 2008

The Immigration, Residence and Protection Bill 2008 which is presently before the Dail Select Committee on Justice, Equality and Law Reform and not all of the numerous proposed amendments have been considered.  The Bill will replace the Refugee Act, 1996 and the Immigration Acts, 1999-2004. Whereas the Bill is quite comprehensive in its objectives as far as the issues of immigration and residence are concerned, the Bill is much more far reaching and comprehensive than anything contained in the Immigration Acts, 1999-2004.

In relation to the two areas of immigration and residence contained in the Bill and which are dealt with below, the Bill in essence details how and in what manner applications for visas and for permission to enter and remain in the State should be determined, as well as detailing the proposed procedures involved and which are dealt with under the headings below.

Permission to enter the State

In so far as the general position of foreign nationals is concerned this echoes the position of Section 4 of the 2004 Act and provides that a non-national present in the State without the permission of the Minister is for all intents and purposes unlawfully in the State. There are powers in the Bill for the removal of an unlawful foreign national in the State and there is no need to give notice of removal which is quite draconian and possibly open to abuse if implemented in its present form.  In addition such persons are not entitled to State subsidies other that essential medical treatment where there are no means to pay.

Visas:

Generally the provisions in relation to applications for visas are similar to what currently exist. Foreign nationals are obliged to make application for a visa before entering the State. The Minister may also prescribe that a visa application be accompanied by a deposit or a bond by an Irish citizen or a citizen of a Member State of the European Union or the holder of a long term residence permit. In relation to an appeal of the refusal of a visa this is now being put on a statutory basis.

Entry Permission (leave to land)

Part 4 of the Bill is similar to the provisions of Section 4 of the Immigration Act 2004 and seeks to regulate entry of every foreign national into the State with the exception of a national of the United Kingdom who has traveled directly form Great Britain, Northern Ireland, The Channel Islands or the Isle of Man to be in possession of a travel document when landing in the State and to apply for permission to be in the State. An Immigration officer may examine a foreign national for the purposes to determining if they should be given permission to enter the State. A foreign national who indicates he or she wishes to make a protection application in the State must be given permission to enter the State however the Immigration officer is still entitled after examination to come to a decision as to whether or not permission should be granted. The grounds upon which an entry of permission may be refused are set out in Clause 27 of the Bill.

The main differences to the old “leave to land” which was granted under Section 4 of the Immigration Act 2004 is that the entry permission is only a short term permission and must be replaced by a residence permission if the foreign national is to stay longer than the permission obtained on entry. Secondly an entry permit issued to a foreign national must state whether the holder is eligible to apply for a residence permission, and where this permission is silent as to the eligibility to apply for a residence permission, the holder will not be entitled to make such an application.

Residence Permissions

(a). right to apply

Under Part 5 of the Bill there must be a statement on an entry permit that the holder is eligible to apply for permission to reside in the State, and secondly that the application made must be by the applicant in person at an immigration area office for the immigration area in which the applicant’s dwelling place is located. In addition there are powers of the immigration officers to attach conditions to refuse or revoke the renewal of residence permission

In determining what matters need to be taken into consideration the Minister can have regard to all of the circumstances of the foreign national which are both known to him or represented to him by the foreign national concerned including his or her  conduct or the conduct of any member of his or her family in connection with immigration and connected with the foreign national’s purpose for being in the State that in the opinion of the Minister indicates that any requirement imposed on a foreign national in respect of his or her entry into or presence in the State is unlikely to be complied with.

(b). renewing a residence permission.

The Bill provides that residence permissions cannot be renewed unless the residence permission in the first instance is expressed to be renewable. There are also limits imposed in making an application to renew and which must be made within prescribed time limits and which are prescribed in clause 32(6) of the act. If the application is made on the prescribed form and with the prescribed fee not later that 21 days before the initial residence permission expired the Minister is then obliged to renew it. If the deadline to renew is missed the Minister is not obliged to consider the application to renew but may exercise discretion to renew it. If the application to renew is not renewed before the expiry of three months after the residence permission the application is treated as non-renewable and the holder has then no permission to remain in the State.

(c). long-term residence permission

Subject to the provisions in clause 36(4) long-term residence permission may be granted to foreign nationals who meet the standard eligibility requirements which are as follows.

The importance of the long-term residence is that it gives the person the right of travel into or out of the State as an Irish citizen so that there is not need to apply for entry permission on each entry or re-entry in the State. In addition it allows the holder to enter employment education and training and to avail of medical care services in the same manner as any other Irish citizen and this entitlement applies also to the foreign national’s dependents who are lawfully resident in the State.

In some cases a person who does not satisfy the 5 out of 6 year rule can make application for qualified long-term residence permission.

d. review of a refusal to renew.

There is no obligation on the Minister to renew a residence permission which is stated to be renewable, but there is a provision for review of the decision not to review it under clause 56.

e. making non-return orders.

Persons whose permission has been revoked or expired will be required to:

Removal

Clause 54 (1) provides that where an immigration officer or member of the Garda Siochana is satisfied that a foreign national in unlawfully present in the State or at a frontier of the State the officer or member may remove the foreign national from the State. Along side this provision clause 55 provides for a general power of arrest and detention for the purposes of removing a foreign national.

Under clause 55(9)

“Where a foreign national detained under this section is a party to any proceedings the High Court may, on application to it and on being satisfied that it is for the purposes of proceedings in the interest of justice that the foreign national continue to be present in the State order the release from detention of the foreign national”

It would appear that this provision is an attempt to restrict the entitlement of a conditional release to circumstances where the proper conduct of the proceedings require the foreign national to be present in the State in circumstances for example where he might have to give evidence.

By way of general conclusion the Immigration, Residence and Protection Bill, 2008 is designed to implement a system to assist applications for only those persons who fall within the framework of the legislation in respect of long-term residence permission.  However the bill as presently drafted is far from being perfect, and there are a lot of proposed features which could operate in an unjust manner, in particular the power of removal without any prior notice to a foreign national, which if implemented as things stand, may result in even more litigation before the Courts, which the Bill has set out to avoid and or restrict.