Kinderis v Kineriene

This is a public judgment to highlight a now chronic problem with regard to the provision of legal aid in cases of alleged international child abduction by a parent to this country. These are some of the most grave cases which come before our family courts. They may, and usually do, involve very serious issues indeed for both parents and for the child or children concerned.

I have personally engaged in such cases very frequently for nearly forty years, first as a barrister and for the last nineteen years as a judge. In my long experience it is rare, although it does sometimes happen, that a parent abducts their child on a whim. Parents know that it is a grave thing to do, and they generally only do so for what seem to them to be strong and compelling reasons. Having brought, or retained, the child here, the abducting parent rapidly develops a very strong commitment to remaining here. The position of the other parent scarcely needs elaboration. They are likely to be devastated suddenly to find that their child has been removed or retained abroad. The impact on the child concerned is likely to be very great. He, or she, may find himself, or herself, immersed in an unfamiliar culture, perhaps speaking a different language, and far from the former home, friends, relations and all that is familiar. As a generalisation, therefore, child abduction is potentially a profound, life-changing experience for all concerned; and, put colloquially, the stakes in these cases are very high.

The legal framework within which they are decided is not straightforward. Every European state, and a large number of other states around the world, are reciprocating parties to the Hague Convention on the civil aspects of international child abduction, which is expressly incorporated into our domestic law. Despite its beguiling simplicity and the clear focus on promoting the return of an abducted child as rapidly as possible to the state of habitual residence, the convention contains certain "defences" and there is now considerable domestic and European jurisprudence in relation to them. In the case of abduction from another Member State of the European Union there is a parallel set of rules under Council Regulation (EC) No. 2201/2003, known as Brussels IIA, which adds a further layer of complexity.

In short, cases of international child abduction are grave cases, conducted through a legal minefield, with which it is very hard for a lay person to grapple without skilled advice and representation. Cases under the Hague Convention are, for very good reasons, normally reserved to the small group of nineteen specialist High Court Judges of the Family Division. They are often straightforward for these experienced judges actually to decide. But some of them, including the present case, may be finely balanced and very difficult. The court then needs all the skilled help it can get.

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 by a father, who is Lithuanian and lives in Lithuania, was first lodged on or about 25^th October, 2013, already seven and a half weeks ago.

The essential factual context is as follows. Both parents are Lithuanian. They are married to each other. They have one daughter, now aged about ten and three-quarters. Until last July they were all living together in a small, rented two-bedroom flat in Lithuania. The fact that the mother and daughter slept in one bedroom, and the father in the other, is some indication that the relationship between the parents was less than happy. The mother has another daughter who is fully adult and who lives in Somerset with her own partner and child. In late July 2013, with the agreement of the father, the mother brought their daughter to England for a three to four week holiday. She has not since returned her, and there is no doubt upon those facts that the child has been wrongfully retained here within the meaning and scope of the Hague Convention. The starting point under the convention is that the child must be returned to Lithuania forthwith. Any disputes between the parents, including any question whether the mother should be lawfully permitted to bring the child to live in England, should be resolved there, as the state of habitual residence.

However, the Hague Convention expressly provides what have come to be known as certain "defences" or, more accurately, grounds upon which the court may exercise a discretion not to order the return of the child. These include, under Article 13, that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; and, separately, that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. The mother very clearly raises both those defences in the present case. She says in her statements that almost immediately after she arrived here in late July the father rang her and said that if the child was not returned by 14^th August (about two weeks earlier than the previously agreed date), she would regret the day she was born. The mother says that a few days later the father spoke directly to the child on the 'phone and said something which turned the child's face white with fear. Apparently he had told the child that she should return to Lithuania if she did not want anything to happen to her mother or her elder sister (viz. the mother's adult daughter). This greatly upset the child, and the next day she told her mother that she had had a dream of her father killing her mother and her elder sister. The mother says that it was as a result of these angry, bitter and frightening threats that she decided that it was not safe for her and her daughter to return to Lithuania and the small flat there, and she decided to remain here. The mother obtained a job as a cleaner in a pizza restaurant.

The mother says that since then the father has sent a stream of very threatening messages and texts to the mobile phones of herself and her adult daughter, and to the child's own mobile phone, many containing chilling threats to kill or disable the mother and her adult daughter. The mother says that she is now scared for her own life and scared for her child's mental health and wellbeing if the child is sent back to Lithuania. The mother says that the child has said that she will kill herself if she was sent back to Lithuania.

It is obvious that these facts, if true, engage the defences under Article 13 of the Hague Convention that I have mentioned.

The father himself has admitted in his statement, signed yesterday, that he did write "some nasty text messages".

On Wednesday, 13^th November, 2013 the mother was located and served with documents in these proceedings. The next day, Thursday, 14^th November, the mother first consulted a well-known and well-regarded firm of solicitors in Taunton, Ashfords. They helped her to complete an application form for legal aid. The following day, 15^th November, she supplied to the solicitors her bank statements and other documents with regard to her means. She has negligible savings. Her take-home pay over the last three months has averaged about £678 net per month (or £8,136 per annum). She cannot possibly afford to fund legal advice and representation herself. The solicitors have informed me on the telephone today that they have assessed her as being entitled, so far as her means are concerned, to legal aid without any contribution from herself. On 18^th November, 2013 Ashfords sent the application for legal aid to the Legal Aid Agency by DX. So I assume it arrived the next day, Tuesday, 19^th November, 2013.

Also on 19^th November there was the first hearing, here in London, on notice to both parents. The father, as applicant, is rightly entitled to non-means-tested and non-merits based legal aid. So he was represented by an experienced barrister, instructed by experienced solicitors on the child abduction panel. The mother attended in person and outlined her defences. A detailed order was made which fixed the final hearing date as today (already outside the six week limit, as I have said) and directed that an officer of CAFCASS should interview the child so as to report as to her wishes and feelings and any objections she may have to return to Lithuania, and to report as to her degree of maturity as Article 13 of the convention mentions. CAFCASS were required to file and serve the resulting report by 4.00 p.m. last Friday, 13^th December, 2013 although they in fact did so last Monday morning, 16^th December, 2013.

If it be thought that that timetable provided an unnecessarily long period of time for CAFCASS to arrange and conduct the interview and prepare a report, it needs to be remembered that CAFCASS is funded by, ultimately, the same central government funds as the Legal Aid Agency, and the funds and resources currently available to CAFCASS are also notoriously short.

On Wednesday, 27^th November, 2013 Ashfords sent the order of 19^th November to the Legal Aid Agency, also by DX. So I assume it arrived on Thursday, 28^th November. On 5^th December, 2013 the Legal Aid Agency wrote a decision letter which refused to grant legal aid to the mother. I have not seen the letter, but Ashfords have quoted parts of it to me on the telephone today. It apparently stated that insufficient information was provided as to the risks the father poses and that the prospects of a successful outcome are poor, and legal aid is therefore refused.

At that point there was little more that Ashfords could do until they saw the contents of the CAFCASS report. In that report, dated 13^th December, 2013, the highly experienced CAFCASS officer says that the child spoke negatively about most things in Lithuania except her several friends and maternal grandparents there, but spoke very positively about her life and school here in England. She could think of nothing good to say about her father, who, she said, shouts and drinks a lot. She referred to the threats made on the mobile phone and in texts. She referred to her dream of her father killing her mother and sister, and she said that she is very much afraid of him. When asked to state on a scale of 0 to 10 how she would feel about going back to Lithuania, where 0 is not minding and 10 is hating to go back, she immediately pointed to 10. The officer contacted the child's teacher in England, who reported that she is mature and emotionally intelligent, and is very concerned about going back to Lithuania and frightened at the prospect. The teacher commented that the child would be traumatised if she has to return. The overall observation of the CAFCASS officer is that her maturity is in line with, or may be in advance of, her chronological age and that "she has a very strong wish to remain here which the court may consider amounts to an objection in Hague Convention terms.”

That report was received by the mother on Monday, 16^th December and forwarded electronically by the mother to the solicitors the same day, and by the solicitors to the Legal Aid Agency also on the same day, together with a formal notice of appeal from the earlier refusal decision. Understandably, the Legal Aid Agency said on Monday that they could not reconsider the decision in time for lawyers to be funded today, Wednesday.

The case has accordingly come on for final hearing before me here, today, with one clear court day allowed. The father himself remains, as he is entitled to do under the convention, in Lithuania. But, he is very well represented by his non-means-tested, fully publicly funded lawyers. The mother appears in person. She speaks negligible English. An interpreter has been provided by the court at the expense of public funds. The adult daughter, who speaks much more fluent English, is kindly here to assist her mother, but does not need to be. The father's solicitors have also necessarily engaged their own Lithuanian interpreter, also at the expense of public funds, so that they can communicate from the court here with their client in Lithuania, who I infer speaks no English. The CAFCASS officer attended and I heard some very brief, but helpful oral evidence from him at the outset of the hearing this morning.

I wish to make crystal clear that I give no steer whatsoever as to the likely outcome of this case. 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 given to her) 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. The father's own very experienced barrister in this field, Mr Nicholas O'Brien, said that he did not resist an adjournment "since there is a considerable risk of unfairness to the mother and the child if the case proceeds today".

There is a further and very important consideration. If indeed the child must be returned to Lithuania forthwith (and her mother would inevitably accompany her), then it is now conventional and necessary to negotiate and establish appropriate measures and “adequate arrangements … to secure the protection of the child after his or her return” (see Article 11(4) of the Brussels II A regulation). It is impossible for this mother, as it is for almost any self representing respondent parent, to engage in such negotiations without an experienced lawyer who knows and understands the conventional framework and scope of such measures and arrangements, and who has the skill to negotiate.

The result is that I have no option but to adjourn this case until Wednesday, 15^th January, 2014, with one clear day allowed, being the first available date, bearing in mind of course the interposition of Christmas and the New Year. 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, who is ultimately funded by the Department of Education, 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. There is also a cost to the mother and her adult daughter as well, both of whom are missing work and have had to incur travel expenditure from Somerset to London and back.

I wish to make absolutely clear that I understand and appreciate the need to be prudent with legal aid expenditure, which is also funded by the taxpayer. The merits test in screening legal aid applications is, in general terms, a necessary and appropriate one. But, in child abduction cases under the Hague Convention and Council Regulation Brussels IIA, 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 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.