Comparative Cases

Judicial Decisions Addressing

Equal Access to Justice

Airey v. Ireland (1979)-- European Court on Human Rights declares continent-wide right to counsel in civil cases based on "fair hearing" guarantee of European Convention on Human Rights and Fundamental Freedoms.

New Brunswick v. J.G. (September 10, 1999)--Supreme Court of Canada declares constitutional right to counsel in civil cases deciding child custody.

Legal Aid Board, et.al. v. Mackintosh, et.al (February 16, 2000)-- Queen's Bench (England) panel upholds legality of major reforms of English legal aid and advice system, in particular finding legal aid clients do not have a common law or statutory right to choice of counsel. [For full text of this 116 page opinion -- that also provides a good introduction to England's legal aid history as well as the current reforms -- click on full case.]

Nkuzi Development Association v. Legal Aid Board (July 6, 2001) -- Land Claims Court of South Africa declares constitutional "fair hearing" in South African Constitution guarantee requires government to provide indigents free counsel in proceedings under land tenure act. In addition to the court's opinion you can view the brief that persuaded the Land Claims Court to create this constitutional right by clicking here.

Airey v. Ireland VERSUS Lassiter v. North Carolina

Two Continents--Two Supreme Courts

and two views of what is required

for a "fair hearing" in the civil courts

Perhaps the best example of what U.S. lawyers, judges, students, as well as other Americans have to learn from developments elsewhere in the world is the case of Airey v. Ireland. This case was decided by the European Court on Human Rights on November 9, 1979, over two decades ago and two years before the U.S. Supreme Court decided Lassiter v. North Carolina. The Lassiter opinion is a decision of the highest court in the United States denying poor people a constitutional right to counsel in civil cases. Five of the U.S. Supreme Court agreed with this decision while four dissented.

In Airey v. Ireland, the highest court on the European continent reached the opposite result, a ruling which is binding on all nations who have signed the European Convention on Human Rights and Fundamental Freedoms. This convention is closely akin to the "Bill of Rights" in the United States Constitution. The nations who have signed the European Convention on Human Rights and Fundamental Freedoms and who are bound by the decision in Airey v. Ireland have a combined population greater than that of the United States.

The European Court on Human Rights did not base its decision in Airey v. Ireland on some special language in the European Convention specifically mentioning indigent litigants have a right to free counsel. Rather it examined Article 6 of the Convention which simply guarantees a “fair hearing” to all civil litigants. The court concluded no one could have a “fair hearing” in the regular civil courts without a lawyer. Hence the member governments are required by the Convention to supply poor litigants with the free lawyers essential to a “fair hearing.“

After reading the parts of the two opinions quoted below -- Lassiter v. North Carolina from the United States Supreme Court and Airey v. Ireland from the European Court of Human Rights, you might ask yourself whether the United States Constitution guarantees this nation's citizens a "fair hearing" in the civil courts and, if so, why lawyers are essential to a "fair hearing" in Europe but not in the United States.

Lassiter v. North Carolina

452 U.S. 18 (1981)

“[T]he Court’s precedents speak with one voice about what ‘fundamental fairness’ has meant when the Court has considered the right to appointed counsel, and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses he may be deprived of his physical liberty. It is against this presumption that all other elements in the due process decision must be measured.”

“[T]hree elements [are] to be evaluated in deciding what due process requires, viz., the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions. We must balance these elements against each other and then set their net weight in the scales against the presumption [that a right to counsel only exists when physical liberty is at stake].”

[Notably, Lassiter was a 5-4 decision, with the dissenters taking issue with the “presumption” against a right to counsel where indigent litigants have something other their physical liberty at stake, e.g., their family rights and obligations, their livelihood, their shelter, their property, etc.]

Airey v. Ireland

2 Eur. Ct. HR Rep. 305(1979)

“The [Irish] Government contend that the applicant does enjoy access to the [Irish] High Court since she is free to go before that court without the assistance of a lawyer….The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial….The court concludes...that the possibility to appear in person before the High Court does not provide the applicant with an effective right of access. ..There has accordingly been a breach of Article 6 sec. 1 [guaranteeing all civil litigants a “fair hearing”].”

“The [Irish] Government maintain that….the alleged lack of access to court stems not from any act on the part of the authorities but solely from Mrs. Airey’s [poverty], a matter for which Ireland cannot be held responsible under the Convention….[T]he Court does not agree...[F]ulfillment of a duty under the Convention on occasion necessitates some positive action on the part of the State….The obligation to secure an effective right of access to the courts falls into this category of duty.”

[Article 6, Section 1 of the European Convention on the Protection of Human Rights and Fundamental Freedom reads: “In the determination of his civil rights and obligations...everyone is entitled to a fair and public hearing...by an independent and impartial tribunal….”]

Supreme Court of Canada holds "fair hearing" guarantee of Canadian Charter of Rights and Freedoms requires provincial government to fund free lawyer for indigent parents involved in proceedings deciding whether government can continue to retain custody of their children -- also announces the test for determining the right to free counsel where legal aid is not available is "directly proportional to the seriousness and complexity of proceedings and inversely proportional to the capacities of" the indigent litigants involved in the proceeding.

BACKGROUND: In a factual situation reminiscent of the one the U.S. Supreme Court confronted twenty years earlier in Lassiter v. North Carolina, the Supreme Court of Canada has reached the opposite result. In both cases the government already had taken custody of a mother's children. In Lassiter, the government was seeking to permanently terminate the mother's parental rights, while in New Brunswick the government only sought to continue to deprive the mother of her children for a further six months. But the Supreme Court of Canada found this lesser deprivation required appointment of government funded counsel for an indigent mother in order to satisfy the "fair hearing" guarantee of that nation's Charter of Rights and Freedoms . This provides a sharp contrast to the U.S. Supreme Court's Lassiter opinion denying such a right even for the more serious and permanent decision the trial court was making in that case.

Also notable is the fact the issue of a constitutional right to counsel in civil cases even arose in Canada. Most Canadian provinces, including the three largest (Ontario, Quebec, and British Columbia) have statutory provisions that guarantee counsel to poor people in all or nearly all civil cases, including the type of child custody issues involved in New Brunswick v. J.G. Those Canadian provinces invest from four to nearly ten times as much per capita in civil legal services for the poor as does the United States. In 1985, however, a new government came to power in the small province of New Brunswick and reduced its legal aid program substantially. New Brunswick continued to guarantee lawyers to poor parents in proceedings permanently depriving them of the custody and parental relationship with their children. But in one of the government's economy moves it denies them counsel in hearings where the government could only take temporary custody of those children.

THE FACTS OF THE CASE: In one of the several opinions written by members of the court in New Brunswick v. J.G., a justice observed it had taken eleven years for a test case to reach Canada's highest court challenging New Brunswick's limitation on legal aid. (This helps account for the court's decision to hear the appeal even though it had become moot.) In this case, the New Brunswick government already had taken custody of the mother's three children and sought a six month extension of its custody over those children. J.G. asked the court to appoint counsel in that custody proceeding. J.G. advised she had sought and been denied representation by legal aid since the province's legal aid law did not allow assistance in such cases. The appellate court ruled against the request for counsel, too. As the case proceeded through the appellate process, however, the six months of temporary custody expired and the government filed for another extension of its custody. This time a lawyer agreed to represent the mother on a pro bono basis, but conditioned on this generosity not impairing the constitutional challenge to the trial court's denial of government-paid counsel. The lawyer won this second custody hearing and the trial court returned the children to their mother, J.G.

Thus, by the time the Supreme Court of Canada was deciding whether to accept the case on appeal, it was moot and could have no effect on whether J.G. continued to have custody of her own children.

THE OPINION: The Chief Justice wrote the main opinion for the court, but several other justices added concurring opinions, some joined by other members of the court.

Chief Justice Lamer first explained why the Supreme Court had agreed to hear this moot case. "Although the appeal is moot, the issue of whether a parent has the right to state-funded counsel at a custody hearing is undoubtedly of national importance and the Court should exercise its discretion to decide it....Similar cases may arise in the future and the Court has an opportunity to clarify the law and provide guidance. Moreover the issue is by its nature evasive of review and will ordinarily have expired before reaching the Supreme Court of Canada. The issue in this case may be moot but it is not abstract."

The Chief Justice then explained which section of the Charter applied and why. "The protection of s. 7 of the Canadian Charter of Rights and Freedomes is not restricted to purely criminal or penal matters. The right to security of the person protects both the physical and psychological integrity of the individual from state actions. The right . . . does not protect the individual from the ordinary stresses and anxieties which a person of reasonable sensibilities might suffer as a result of government action....

"A restriction of security of the person arises when state action has a serious and profound effect on a person's psychological integrity. The effects must be assessed objectively from the perspective of their impact on the psychological integrity of a person of reasonable sensibility....A custody application by the state interferes with the parent-child relationship in a distressing and grossly intrusive manner. It often stigmatizes the parent as unfit. The combination of stigmatization, loss of privacy and disruption of family is sufficient to be a restriction of security of the person."

Chief Justice Lamer then turned to the critical issue: what does the Charter guarantee when the state files a custody application. "Section 7 guarantees every parent the right to a fair hearing when the state seeks to obtain custody of their children. Leaving J.G. unrepresented would have been a restriction of her right to security of the person not in accordance with the principles of fundamental justice. The principles of fundamental justice that apply to child protection proceedings are both substantive and procedural. The state can only intervene where it is necessary to protect the best interests of the child but there must be a fair procedure for making that determination. A fair hearing requires that the parent has the opportunity to present her or his case effectively. Effective participation enhances the judge's ability to make an accurate determination. Here, the statutory scheme allows a parent to present evidence, cross-examine witnesses, and make representations but does not provide funds for indigent parent so retain counsel. In the circumstances of this case, taking into account the seriousness of the interests at stake, the complexity of the proceedings and the capacities of J.G., the right to a fair hearing required the government to provide counsel....

"A fair hearing will not always require an individual to be represented by counsel when a decision is made that affects an individual's right to life, liberty, or security of the person. Whether representation is necessary is directly proportional to the seriousness and complexity of the proceedings and inversely proportional to the capacities of the parent.

Finally, the Chief Justice dealt with the question whether it could order the government of New Brunswick to pay the indigent parent's lawyer with tax funds. "Assuming without deciding that the policy of not providing state-funded counsel qualifies as a limit prescribed by law and that the objective of controlling legal aid expenditures is pressing and substantial, the deleterious effects of the policy far outweigh the salutary effects of any potential budgetary savings.

"The only remedies available to a judge faced with a prospective breach of s. 7 after concluding that a subsequent hearing without counsel would be unfair are to order the government to provide counsel or to stay the proceedings. In child custody proceedings, a stay is inappropriate since it would result in a return of the children to the parent. Accordingly the government must provide counsel and it is not for the court to direct how that should be done....It would be open to the government to amend its policy [regarding legal aid] to read in discretion or provide parents with state-funded counsel through another means."

Justice L'Heureux-Dube found an additional provision of the Charter supported the right to counsel in this case. "This case also implicates issues of equality guaranteed by s. 15 of the Charter which should be considered in interpreting the scope and content of the rights guaranteed by s. 7....Child protection proceedings disproportionately affect women and especially single mothers....Issues of fairness in child protection hearings have particular importance for members of disadvantaged and vulnerable groups, particularly visible minorities, aboriginal people and the disabled. Thus, it is important to ensure that the analysis of s. 7 in this case takes into account the principles and purposes of the equality guarantee in promoting equal benefit of the law and ensuring that the law responds to disadvantage individuals and groups whose protection is at the heart of s.15."

This is an application for a declaratory order to the effect that persons who have a right to security of tenure in terms of the

Extension of Security of Tenure Act("ESTA") and the Land Reform (Labour Tenants) Act ("Labour Tenants Act") and whose

tenure is threatened or has been infringed, have a right to legal representation or legal aid at State expense under certain

The first respondent entered an appearance to defend but later withdrew from participating in the case. The second respondent

The application is premised on the fact that the right to secure tenure or alternative redress is guaranteed in the Bill of Rights

to the Constitution of the Republic of South Africa Act, ("the Constitution"). Section 25(6) of the Constitution reads:

With a view to giving effect to section 25(6) of the Constitution, the Parliament enacted the Labour Tenants Act and ESTA.

these acts define the extent to which a large number of rural and peri-urban people whose tenure of land is legally insecure, are

entitled to legally secure tenure. However, a very large number of the people for whose benefit the Labour Tenants Act and

ESTA were enacted, do not enjoy that entitlement when their rights are infringed or threatened with infringement. This is so

because they are overwhelmingly poor and vulnerable people with little or no formal education. When their tenure security is

threatened or infringed, they do not understand the documents initiating action or the processes to follow in order to defend

their rights. On the other hand they cannot afford the fees for a lawyer to represent them because of their poverty. As a result

they are quite often unable to defend or enforce their rights and their entitlement under the Constitution, the Labour Tenants

Act and ESTA. The Legal Aid Board is the institution through which the Government provides legal aid to the indigent. However,

most of these people or a large number of them are not able to obtain legal services through the Legal Aid Board. Several reasons

As a result of the above, very many poor, illiterate litigants appear in court unrepresented. Labour tenants and occupiers

form a significant portion of such litigants. There is a need to assist labour tenants and occupiers to protect their

constitutionally guaranteed rights. One of the ways in which the rights of labour tenants and occupiers, as outlined in

section 25 of the Constitution and further expanded upon in the Labour Tenants Act and ESTA, can be protected is

to ensure that their right in terms of section 34 of the Constitution is upheld. This means that labour tenants and occupiers

are entitled to a fair trial before they can be evicted and for the trial to be fair it is necessary that the labour tenant or

occupier understands his or her rights under the law and the complexities of a trial. Where he or she does not understand,

there is a need for legal representation, or at the very least, an explanation of his or her rights by the judicial officer. Given

the order I intend making it is important that information about the rights of labour tenants and occupiers to a just and fair

The issue of judicial officers informing litigants about their rights arose in criminal cases in the period before South Africa was a constitutional state. It is to that field of law that I look for guidance. The rights of an accused were then understood not to include the right to legal aid. The right of the accused was a right to representation, if he or she could afford it and obtain it. The question then arose whether the judicial officer was under a duty to inform the accused of that right to legal representation.

The question arose crisply in S v Radebe; S v Mbonani. Goldstone J (Van der Merwe J concurring) referred to:

This approach was followed in a number of cases culminating in the endorsement of the approach by the Supreme Court of Appeal.

Once it is found that there is a right to representation at State expense in certain civil cases, I can conceive of no logical reason why a judicial officer should not inform the person appearing before him/her of that right, and how to exercise it. There is no logical basis for distinguishing between criminal and civil matters. The issues in civil matters are equally complex and the laws and procedures difficult to understand. Failure by a judicial officer to inform these litigants of their rights, how to exercise them and where to obtain assistance may result in a miscarriage of justice.