JOSIE AIREY: Airey, who died on August 26th aged 70, made legal history in the 1970s when she won her case against the government at the European Court of Human Rights, which upheld her complaint over the lack of free legal aid.
As a result of her courageous action spread over seven years, such aid became available in family law and other civil cases in Ireland and the right to it was established in all signatory countries to the European Convention on Human Rights.
The Airey case also highlighted in a European context the unsatisfactory situation in Ireland arising out of marriage breakdown. The publicity may have hastened the attempts to introduce civil divorce. It was also a personal triumph for then Senator Mary Robinson, who handled the case before the court in Strasbourg aided by Dublin solicitor Mr Brendan Walsh.
Women's organisations hailed the decision by the court as an important step in the removal of discrimination against wives in a marital-breakdown situation when they lacked the financial means to obtain a judicial separation.
But Josie Airey was to recall that for much of her struggle she was on her own. When she went seeking help, she was snubbed by politicians, senior clerics and even some women's organisations.
"I'm not a women's libber," she said in an interview. "I just want to be myself, just an ordinary woman from an ordinary street, and have my friends and neighbours just the way I always had."
Life was a long struggle for Josie Airey. She was born Josie Lynch in Cork on May 4th, 1932. Her parents died when she was young and she was reared by a grandmother living in The Lough area. She was educated at St Mary's of the Isle and left after several years of secondary school. She worked for a time in a department store after school and also ran a meat stall in the English Market in Cork.
At 21 she married Timothy Airey and they had four children. By 1972, the marriage had broken down as a result of her husband's alcoholism and violence, according to Josie Airey. She worked long hours as a cleaner in a hospital while trying to put her young children through school.
She was in and out of district courts seeking maintenance orders against her husband and also to face summonses for non-school attendance by her young son. She went to jail for a short period for being unable to pay a small fine.
She was unsuccessful in seeking a separation deed from her husband who had left the family home for good. For a judicial separation she would have had to go to the High Court and petition for a divorce a mensa et thoro. This was divorce Irish-style and did not permit remarriage. Such a step would normally cost £1,000 or more and was out of the question for Josie Airey.
She wrote letters to Cardinal Conway, the then Taoiseach Jack Lynch, Dr Garret FitzGerald and TDs in the three main parties. She approached Desmond O'Malley who was minister for justice. She got polite replies but no encouragement. One Fianna Fáil TD from Cork, later to become a Minister, told her to "shag off" when she tried to put her case. He later apologised.
One TD who did publicly support her was Eileen Desmond of Labour. No solicitor or barrister she approached was willing to take her case to the High Court without payment.
Early in 1973, she wrote a letter to the European Commission of Human Rights in Strasbourg setting out her complaint about being unable to take her case to the High Court. She had read about the Commission's involvement in another case. The Commission, which handles the first stage in complaints, sought the views of the government and eventually agreed to provide her with legal aid to pursue her case. Mr Brendan Walsh, a young Dublin solicitor, volunteered to handle the case and Josie Airey herself suggested Mrs Robinson as her barrister.
The case opened before the Commission on July 7th, 1977. Josie Airey claimed that the government was in breach of three articles of the Convention on Human Rights. Her main claim was that there was a breach of Article Six giving the right of all citizens to a "fair and public hearing". As she could not afford a barrister, she could not get a fair hearing before the Irish High Court, it was claimed.
After a day of oral hearings, the Commission ruled that her case was admissible and over the next few months drew up a report on the merits of the case while seeking a "friendly settlement" with the government. Josie Airey, who had travelled to Strasbourg with Maureen Black of the Cork Citizens' Advice Bureau, said she was "thrilled" but this was only the first step.
In March 1978, with the Fianna Fáil government still unwilling to take action, the Commission gave its unanimous opinion that Ireland was in breach of Article Six of the convention by denying Josie Airey access to the High Court to secure a judicial separation.
Legal observers believed that the government had handled the case badly. There was already legal aid for criminal cases and the Pringle Report had recommended extending this to civil cases.
The government was now risking the condemnation of the same court that had ruled in its favour when taking the British government to Strasbourg over ill-treatment of detainees in Northern Ireland at the time of internment. There was some suspicion that the presence of Mrs Robinson in the case had hardened the government's attitude.
The Commission rejected with incredulity the claim by the government that Josie Airey could have gone to the High Court herself without any legal assistance. The Commission expressed some surprise at the cost of High Court proceedings in Ireland and figures were produced to show that in 255 proceedings between 1972 and 1978 all petitioners were represented by lawyers.
The Court of Human Rights heard the case on February 22nd, 1979. There was astonishment when counsel for the State, Mr Niall McCarthy SC, while continuing to reject Josie Airey's claims, suddenly announced that the government had decided to introduce legal aid in family matters before the end of the year.
"It has gone my way," Josie Airey said outside the court. "I have won the most important point."
Eight months later the court gave its ruling that Ireland was in breach of Articles Six and Eight of the Convention of Human Rights. Josie Airey said she was "delighted" with the outcome but regretted that it had taken so long. The previous year she had told Dick Hogan of The Irish Times that "I can't describe the years of loneliness and desperation as I met blank wall after blank wall, but I'm feeling a bit better now".
Now she was free to get her judicial separation in the High Court for which the government paid the costs as well as £3,140 in damages. She reverted to her maiden name of Lynch and tried to put the past 10 years of struggle behind her. She continued to write poetry for which she had a great love and had poems published in the US.
She worked for a time in the Ferrero chocolate factory in Cork but became ill in the mid-1980s. Her last years were spent in the Marymount Hospital in Cork.
She is survived by daughters Elaine, Jean and Noreen, son Thomas and brother Michael. She was pre-deceased by a sister and brother.
Josie Airey: born 1932; died August 2002.