Kinderis v Kineriene

In international child-abduction proceedings, a respondent who is impecunious and unable to present properly arguable Convention defences may require publicly funded legal representation to secure a fair hearing. Where the case involves potentially grave allegations, a mature child’s objection, and the need to negotiate protective arrangements on return, proceeding without representation may create an inequality of arms contrary to Article 6 of the European Convention on Human Rights. The court may adjourn the final hearing until representation is available, despite the six-week period under Brussels IIA. The practical approach identified was an immediate grant of legal aid, subject to review after relevant evidence, rather than allowing an initial refusal to generate delay and wasted public expenditure.

The father applied for the return of his ten-year-old daughter to Lithuania after the mother retained her in England following an agreed holiday. The mother relied on Article 13 of the Hague Convention, alleging threats and a grave risk of physical or psychological harm, and also relied on the child’s objection and maturity. She was unable to afford representation, spoke little English and had been refused legal aid on the merits. The father was represented and the child’s CAFCASS report supported the arguability of the mother’s case. The central issue was whether the final hearing could fairly proceed without legal representation for the mother, given the applicable six-week timetable.

1. Adjournment. The final hearing was adjourned to 15 January 2014 because the mother could not present her potentially meritorious defences properly without skilled legal advice and representation.
2. The wrongful retention was established on the stated facts, and the ordinary starting point under the Hague Convention was the child’s prompt return to the state of habitual residence. That starting point did not remove the need to determine the Article 13 issues fairly.
3. The allegations of threats, the asserted grave risk of harm or an intolerable situation, and the child’s reported objection gave the mother a properly arguable case with at least a realistic prospect of success. The CAFCASS evidence indicated that the child was sufficiently mature for her views to require consideration.
4. Proceeding with the hearing would create a serious inequality of arms. The mother was unrepresented, required an interpreter and lacked knowledge of the complex legal framework, while the father had experienced publicly funded lawyers. That was inconsistent with the fair-trial requirements of Article 6 of the European Convention on Human Rights.
5. If return were ordered, the parties would also need to negotiate protective measures and adequate arrangements under Article 11(4) of Council Regulation (EC) No. 2201/2003. A self-representing parent could not realistically conduct those negotiations effectively.
6. The court criticised the operation of the legal-aid procedure in such cases. The practical approach consistent with the six-week requirement in Article 11(3) was an immediate grant of legal aid, subject to review after receipt of relevant evidence, rather than an initial refusal that caused delay and duplicated public expenditure.