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Holman J calls for changes to legal aid in child abduction cases

Legal aid lacuna is causing unfairness and wasting money

In a public judgment given to highlight the 'chronic' problem of legal aid in cases of alleged international child abduction, Mr Justice Holman has stated that in cases where a Cafcass report is ordered, an initial grant of public funding should be made to the respondent and then reviewed upon receipt of the report. The alternative would be either delay beyond the 6 weeks timetable required by Article 11 (3) Brussels II Revised, or a risk of unfairness within the meaning of Article 6 ECHR.

In Kinderis v Kineriene [2013] EWHC 4139 (Fam) a final hearing had been listed on a date 7½ weeks from the issue of proceedings in order to allow time for the respondent mother's application for public funding to be determined. Both parties were Lithuanian nationals and spoke little English. The father was not present in court but was represented by specialist solicitors and counsel. The mother had approached solicitors but was not due to receive a response from the Legal Aid Agency within the 6 weeks timetable.

On the morning of the hearing, the mother attended in person and informed the court that her application for legal aid had been rejected on a merits basis. Her prospective solicitors had subsequently received the Cafcass report which arguably assisted her case, but the Legal Aid Agency had not had time to consider the mother's appeal. The respondent was left with the prospect of putting her case forward with no legal assistance, little English and no knowledge of the relevant law.

Holman J stressed that child abduction cases were some of the most serious cases to come before the family courts. While some may be relatively straightforward for the experienced High Court judges, others (such as the present case) were finely balanced and the court would need as much skilled help as possible in reaching its decision, particularly given the gravity of the welfare issues at stake.

An adjournment pending the mother's appeal to the LAA was not opposed. Counsel for the father, Nicholas O'Brien of Coram Chambers, acknowledged that there would be a risk of unfairness if the hearing went ahead. Holman J relisted the hearing, but emphasised the amount of public money which had been wasted. In an echo of his comments in Tufail v Riaz [2013] EWHC 1829 (Fam), he pointed out the knock-on costs in court time created by a lack of legal representation.

He concluded that the only practical approach consistent with a 6 weeks timetable would be for the LAA to make an initial grant of public funding, to be reviewed upon receipt of a Cafcass report.

The judgment is here.

Miranda Mourby, pupil barrister, Coram Chambers

7/1/14