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Availability of Legal Aid for Applications Pursuant to the 1996 Hague Convention

Anne-Marie Hutchinson OBE QC (Hon), Partner, Dawson Cornwell, and Michael Gration, Barrister, 4 Paper Buildings, highlight an oversight in LASPO.

Anne-Marie Hutchinson OBE, QC (Hon), Dawson Cornwell

Michael Gration, barrister, 4 Paper Buildings

Anne-Marie Hutchinson OBE QC (Hon), Partner, Dawson Cornwell, London and Michael Gration, Barrister, 4 Paper Buildings, London

The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children of 19 October 1996 (which is referred to hereafter as "the 1996 Hague Convention") came into force in the United Kingdom on 1st November 2012, however it was signed by the United Kingdom on 1st April 2003 and ratified on 27th July 2012, so its entry into force came after a long period during which preparation could be made for the implementation of this important Convention.

That preparation included the drafting and approval of The Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010. Those regulations made some amendments to domestic law which intended to amend existing statutes (and particularly the Family Law Act 1986) so as to facilitate the implementation of the Convention.

Family Procedure Rules 2010
Amendments were also made to the Family Procedure Rules 2010 so as to establish the procedural structure for the various applications that can be made pursuant to the Convention. A particularly important application that can be made pursuant to it is for the recognition and enforcement of orders (or, to adopt the term used within the Convention, measures) that have been taken by the courts or authorities of one Contracting State upon the territory of another Contracting State.

The relevant sections of the FPR are:

The relevant rules relating to applications are set out in r. 31.15 FPR 2010.

Relevant extract, Part 31.15:

Appeal against the court's decision under rules 31.10, 31.11 or 31.14

(1) An appeal against the court's decision under rules 31.10, 31.11 or 31.14 must be made to a judge of the High Court–

(a) within one month of the date of service of the notice of registration; or

(b) if the party bringing the appeal is habitually resident in another Member State, or a Contracting State, within two months of the date of service.

(2) The court may not extend time for an appeal on account of distance unless the matter is one to which the 1996 Hague Convention applies and the Council Regulation does not apply.

(3) If, in a case to which the 1996 Hague Convention applies and the Service Regulation does not, the appeal is brought by the applicant for a declaration of enforceability or registration and the respondent fails to appear –

(a) where the Hague Convention of 15th November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters applies, the court shall apply Article15 of that Convention; and

(b) in all other cases, the court will not consider the appeal unless –

(i) it is proved to the satisfaction of the court that the respondent was served with notice of the appeal within a reasonable period of time to arrange his or her response; or

(ii) the court is satisfied that the circumstances of the case justify proceeding with consideration of the appeal.

(4) This rule is subject to rule 31.16.

(The procedure for appeals brought under rule 31.15 is set out in Practice Direction 30A (Appeals).)

Procedure for applications
The basic structure under the aforementioned rules is that a formal application must be made for an order to be registered, and a fee paid. Consideration of whether or not to register the order is undertaken, in the first instance, by a District Judge on the basis of the papers that are lodged upon making the application. Neither the respondent to the application nor the subject child are entitled at that stage to make any submissions as to whether or not the order should be registered. Once the initial decision has been made on paper, a respondent to the application for registration has a period of one month (though this can be extended in certain circumstances) in which to appeal the registration of the order.

Public funding for such applications
This article follows the conclusion of a case in which the authors represented a child who was the subject of an order which had been registered for enforcement following such an application to the Principal Registry of the Family Division. The child's mother had obtained an order from a court in the United States of America which required the child's father (who was resident in England) to return the child to the care of the mother. The child (who was 16 years old) objected to that course, and sought to appeal the registration and subsequent enforcement of the order.

She had an excellent case, not least because the USA is not a Contracting State to the 1996 Hague Convention, a point that was ultimately conceded and on the basis of which the appeal was allowed.

A difficulty arose, however, when the child's solicitor applied for public funding to enable the child to be represented and to advance an appeal. The surprising response was that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") did not provide for legal aid to be made available in cases pursuant to the 1996 Hague Convention.

The relevant LASPO provisions are set out at Paragraph 17 of Schedule 1. Paragraph (1) deals with the availability of legal aid in relation to EU and international agreements concerning children:

EU and international agreements concerning children
17(1) Civil legal services provided in relation to

(a) an application made to the Lord Chancellor under the 1980 European Convention on Child Custody for the recognition or enforcement in England and Wales of a decision relating to the custody of a child;

(b) an application made to the Lord Chancellor under the 1980 Hague Convention in respect of a child who is, or is believed to be, in England and Wales;

(c) the recognition or enforcement of a judgment in England and Wales in accordance with Article 21, 28, 41, 42 or 48 of the 2003 Brussels Regulation.

(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.

(3) In this paragraph—

"the 1980 European Convention on Child Custody" means the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children which was signed in Luxembourg on 20 May 1980; 

"the 1980 Hague Convention" means the Convention on the Civil Aspects of International Child Abduction which was signed at The Hague on 25 October 1980; 

"the 2003 Brussels Regulation" means Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.

(4) For the purposes of this paragraph, an application is made to the Lord Chancellor if it is addressed to the Lord Chancellor or transmitted to the Lord Chancellor in accordance with section 3 or 14 of the Child Abduction and Custody Act 1985.

It is clear whilst the relevant provisions (as quoted above) make reference to the EU Regulation No.2201/2003 ("Brussels IIa") no reference whatsoever is made to the 1996 Hague Convention.  Upon the Legal Aid Agency noting this, funding for the child in the case referred to above was refused, on the basis that the case was outside of the scope of LASPO. Upon that decision being questioned, the LAA made it clear that at present there is no provision within LASPO for public funding to be made available (whether means/merits tested or otherwise) for either applications for registration under the 1996 Convention or to appeal such registrations or indeed to make applications for an enforcement of orders under the 1996 Convention or to seek to oppose them.

As a result, a different type of application was made on behalf of the child and listed alongside the father's appeal of the registration of the order. That pragmatic course allowed the child to be represented and to have her voice heard within the appeal, which of course affected her as much (and, in fact, more than) her parents. Later, the LAA granted exceptional funding to the child to allow her to pursue an appeal against the registration of the order, however that funding was only granted a considerable time later, by which time the time limits for the lodging of an appeal of this type had expired.

An oversight?
This omission within the funding rules came as a considerable surprise to the authors. There does not seem to be any reasonable justification for providing funding to make applications for the registration and enforcement of orders under Brussels IIa, or to appeal such registrations in cases of that type, but not in similar cases under the 1996 Hague Convention. It has the look of an oversight.

Certainly, funding should be made available to such applications on the same basis as it is available in identical cases under Brussels IIa.  In the meantime only exceptional funding is available for 1996 registration applications, appeals and enforcement applications; this is a poor substitute and has inbuilt delays. Further, there is no indication that it would be automatically granted.

Following Brexit, and the uncertainty about the future operation of Brussels IIa (in whatever form), the effective operation of the 1996 Hague Convention will be essential, as has been emphasised by the Government.