A (A Child) (Abduction: Adjournment following Refusal of Legal Aid), Re

In proceedings under the 1980 Hague Convention, an adjournment application must be determined by assessing the fairness of the proceedings as a whole. The court must balance all relevant interests, including the child’s interests and the consequences of delay. Equality of arms does not require every party to have legal representation, but the court must be satisfied that each party can present their case effectively. The apparent merits of a respondent’s case should be approached cautiously, since forensic fortunes may change and the practical consequences of self-representation may be decisive. In a complex case involving allegations of domestic abuse, a last-minute refusal of legal aid and insufficient preparation time justified an adjournment.

The father applied under the 1980 Hague Convention for the return of his five-and-a-half-year-old son to Poland after the mother removed him to England without consent. The mother accepted that the removal was wrongful but opposed return under Article 13(b), alleging a grave risk of physical or psychological harm or an intolerable situation.

On the day fixed for the final hearing, the mother’s application for legal aid was refused on the merits. Her solicitors came off the record and she sought an adjournment, relying on her lack of representation, the complexity of the case, alleged domestic abuse, vulnerability and her inability to challenge expert evidence by cross-examination. The central issue was whether proceeding immediately would be fair.

1. Adjournment granted. The court applied the fairness principles summarised in Re P (A Child: Fair Hearing) [2023] EWCA Civ 215. The court must strike a fair balance between all interests at stake, including the child’s interests and delay. Fairness is fact-sensitive and concerns the proceedings as a whole. The principles are not a mechanistic checklist.
2. Equality of arms and Article 6 do not require all parties to be legally represented. The relevant question is whether the unrepresented party can put their case effectively. The court may consider the realistic consequences of the absence of representation, while treating the apparent strength of the case with caution.
3. In Hague Convention proceedings, the merits of an Article 13(b) defence should not be assessed in purely binary terms. Even where return appears likely, legal representation may be important in addressing protective measures and the practical arrangements for return, including appropriate soft-landing provisions.
4. The inability to cross-examine the expert did not justify an adjournment. Oral evidence is unusual in Hague proceedings, there was no entitlement to cross-examination, and the procedural opportunity to ask Part 25 questions had not been used.
5. The decisive factors were the last-minute refusal of legal aid, the mother’s limited preparation time, the complexity of the case and her vulnerability as an alleged victim of domestic abuse. A further adjournment should not be assumed if any appeal concerning legal aid failed.
6. During the adjournment, the child’s relationship with the father was to be maintained. The court directed that the child should spend time with the father in Poland, subject to further submissions on safeguards.