A High Court judge has condemned ‘unjust’ and ‘counter-productive’ procedures for granting legal aid in international child abduction cases.
Mr Justice Holman said that in such cases, which have to be resolved within six weeks of an application being lodged, legal aid should be granted immediately and reviewed if necessary after receipt of the Cafcass report.
In the case of Arunas Kinderis and Gitanan Kineriene, the judge made a public judgment to highlight the ‘chronic problem’ with regard to the provision of legal aid in cases of alleged child abduction to this country by a parent.
Highlighting the need for parties to be represented, Holman said such cases are some of the ‘most grave’ to come before the family courts and involve ‘very serious’ issues for the parents and children concerned.
The cases, which are reserved to 19 specialist judges, are, he said, conducted through a ‘legal minefield’ that is very hard for a lay person to tackle without skilled advice and representation, and the court also needs ‘all the skilled help it can get’.
Holman said he appreciated the need to be prudent with legal aid expenditure and accepted that the merits test in screening legal aid applications is, in general ‘necessary and appropriate’.
But, in child abduction cases under the Hague Convention and Council Regulation Brussels IIA, he said: ‘The present procedure operates in a way which is unjust, contrary to the welfare of particularly vulnerable children at a time of great upheaval in their lives, incompatible with the obligations of this state under article 11(3) of the regulation, and ultimately counter-productive in that it merely wastes taxpayers’ funds.’
The case in which he gave the judgment concerned an application made by a father for wrongful retention of his 10-year-old daughter by her mother after an agreed holiday from Lithuania to England. The Lithuanian parents were married but the judge described their relationship as ‘less than happy’.
The mother claimed that returning the child to Lithuania would expose her to physical and psychological harm or place the child in an ‘intolerable situation’ and that the child objected to being returned due to alleged threats from the father.
On the day of the hearing, Holman said he had ‘no option’ but to adjourn the case as the Legal Aid Agency’s refusal of legal aid to the respondent mother meant she was unrepresented, while the applicant father was represented.
In doing so, he said: ‘The mother is simply incapable of presenting and developing her case properly. She does not know the complex law. She has to communicate through the interpreter.’
On the other hand, he said: ‘The father has all the resources of state-funded lawyers. This is not equality of arms, as the fair trial provisions of Article 6 of the European Convention on Human Rights require.’
Highlighting the waste of time and resources of the adjourned case, Holman said: ‘In the courtroom are a barrister and solicitor for the father, two interpreters, two court staff and myself, and, earlier today, the Cafcass officer.
‘We all have to be paid. The court infrastructure has to be provided and paid for. The cost today to the taxpayer, all wasted, will run into several thousands of pounds.’
Apart from the Cafcass officer, who is funded by the Department of Education, Holman said all the wasted costs fall on the Ministry of Justice, the department responsible for the legal aid budget.
‘The decision of the Legal Aid Agency has merely resulted in the same department wasting a lot more money,’ said Holman.
A spokesperson for the agency said: 'It is vital that we are given sufficient information by applicants to allow us to make a decision. We cannot grant legal aid if we are unable to assess if the standard legal merits and financial means tests have been met. In urgent cases, where appropriate, a solicitor may also exercise delegated functions to grant legal aid for a hearing.'
Read the full judgment.