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Family Law

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Court of Protection Practice and Procedure Conference 2016

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03 JAN 2014

Evidence, Practice and Procedure: The Legal Aid Agency and Denial of the Right to a Fair Trial

David Burrows

Solicitor Advocate


David Burrows - Practice of Family Law: Evidence and Procedure

David Burrows

The case of Gitana Kineriene ('GK': Kinderis v Kineriene [2013] EWHC 4139 (Fam)) and her 11-year-old daughter operates on a number of levels: the right to a fair trial; the grant or not of legal aid; and the human question of how justice can be done where a legal aid scheme is humanly impenetrable..

GK is a Lithuanian mother who brought her 11-year-old daughter to stay with GK's, now adult, daughter in Somerset. It was said to be a holiday. GK and the child failed to return. Both had reason to fear her husband. The father applied under the Hague Convention and, as was his right, he received legal aid regardless of his means and of the merit of his application. The case came before Holman J, intended to be a full hearing of the father's application. The mother had been denied legal aid.

Holman J was in no doubt that GK's position left her outside the fair trial provisions of European Convention 1950, Art 6(1). Careful not to prejudge the case he said:

[18] ... On the one hand, this is a blatant case of wrongful retention after an agreed short holiday here. On the other hand, on the alleged facts as I have summarised them, there is clearly a properly arguable case, with at least a realistic prospect of success, that there is a grave risk that the return of the child forthwith to Lithuania would expose her to physical or psychological harm or otherwise place her in an intolerable situation; and, separately, that she does object to being returned (having identified 10 on the scale [that she would ‘hate' to go back]) and that she has attained an age and degree of maturity at which it is appropriate to take account of her views. 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. 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 [as the ‘father's own very experienced barrister' conceded].

Where does that leave the mother and child, in terms of legal representation, assuming (as was the case) that both were financially eligible for legal aid? She had lawyers to help her with her application; but suppose she had to work it all out for herself.

Application for legal aid

It must be assumed that GK can read English (probably with the assistance of her older daughter). She wants to know if she can be represented. She finds her way to Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPOA'), s 9 which tells her that she can get 'civil legal services' (ie as defined by s 8, which means anything other than criminal legal services per s 8(3)), so long as they are set out in Sch 1, Part 1 to LASPOA and the Legal Aid Agency ('LAA') 'has determined that [she] qualifies for the services in accordance with this Part' (s 9(1)(b)) (ie that she is financially eligible (s 21 and its regulations) and she satisfies the legal aid merits test (s 11 and its regulations)). It must be assumed in relation to what follows that she can find her way through those regulations without difficulty (an assumption not bred of experience).

In Sch 1, Part 1 the only obvious provision for GK and her child is para 13 which, under the heading 'Protection of children and family matters' looks promising. On careful reading it does not help. Paras 10 and 17 apply to child abduction, but only for the person who seeks return of the child. Para 15 might enable the child to apply for legal aid; though GK may not know that judges do not like children being used to obtain legal aid - as it is perceived - for their parents' cases: Re JG (a child by her guardian) v Legal Services Commission and ors [2013] EWHC 804 (Admin), Ryder J.

Finally there is para 9. Wardship (this is what ‘inherent jurisdiction' means in context) may be the answer:

Inherent jurisdiction of High Court in relation to children ...

9(1) Civil legal services provided in relation to the inherent jurisdiction of the High Court in relation to children.

Exclusions: (2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 [etc...]

Definitions: (3) In this paragraph -

"adults" means persons aged 18 or over;

"children" means persons under the age of 18.

Fair trial ‘within a reasonable time'

European Convention 1950, Art 6(1) requires trial 'within a reasonable time'. Delay in dealing with a child's case is presumed to be prejudicial to the child's welfare (Children Act 1989, s 1(2)). What is 'reasonable' must depend on the type of case involved. Holman J recalled that Hague Convention cases must be dealt with by the 'expeditious procedures available':

[5] Article 11(3) of regulation Brussels IIA requires that in a case involving Member States of the European Union the court must act expeditiously, using the most expeditious procedures available in national law. Except where exceptional circumstances make this impossible, the court must decide the case and issue its judgment no later than six weeks after the application is lodged. In the present case, the application [was lodged] already seven and a half weeks ago.

The refusal of legal aid, thus far, and the failure of the LAA to deal with an appeal against refusal left GK exposed, as all agreed, to an unfair trail; and this had the following financial consequences (quite apart from the consequences for the child and the parties):

[20] The result is that I have no option but to adjourn this case ... That means a delay of a further four weeks, so that by the time this case is heard the six week time limit under the Council Regulation Brussels IIA will have been doubled. It means that the hearing today has been an almost total waste of time and resources, all of them funded by the taxpayer. 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, ... all these wasted costs fall ultimately on the same government department, the Ministry of Justice, as does the legal aid budget. So the decision of the Legal Aid Agency has merely resulted in the same department wasting a lot more money ...

Holman J then suggested a way through for applicants and the LAA.

[21] ... In child abduction cases under the Hague Convention and Council Regulation Brussels IIA, the present [legal aid] 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 only practical approach, consistent with the tight six week timetable, is an immediate grant of legal aid, to be reviewed if necessary after receipt of any relevant CAFCASS report. In that way, respondents to these applications, who are generally impecunious and highly vulnerable, would have the benefit of proper legal advice and representation at an early stage in these cases when they so desperately need it, right through to the final hearing when, as I have explained, negotiations between skilled and experienced negotiators are almost always required in relation to protective measures and arrangements for any return.

As to the complexity of these provisions and the likelihood of their making a fair trial impossible: that is an important debate; but for another day.

David Burrows, solicitor advocate, is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).

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