Mother and Father were both married, in Slovakia and had one child. Mother alleged that Father was domestically violent towards her, they divorced and some time past. Mother decided to come to the UK to live with her daughter.
Mother’s motivation behind this was to do better for herself and daughter, from a financial and educational perspective. Whilst in the UK, Mother met a new partner and they lived with her daughter as a new family unit.
Meanwhile, Father made an application from the originating country to the central authority under the Hague Convention for the immediate return of the child.
The presumption under such cases is that the child is returned to the originating country, unless a defence is raised. Such defences are few and far between and can be incredibly difficult to argue successfully.
In this case, Mother argued that Father knew that Mother and the child were leaving for the UK. She argued that Father did not object the infringement of his own rights to see the child.
The matter was heard in the Royal Courts of Justice before a High Court Judge several times.
Mother had difficulty obtaining legal funding from the outset. She had specifically come to the UK in order to adequately provide for herself and her child. Her new partner also worked. Whilst an Applicant is granted legal aid whatever their means, a Respondent to a Hague Convention application in the UK is still subject to a means test. An initial means test was completed and although their means were low they did not qualify for legal aid.
Mother attempted to conduct the matter by herself. However, it was clear from the outset Mother needed professional representation, as such matters are difficult to argue and knowledge of the law is required. It is noteworthy to say that Mother could not speak English and a translator would not be available through legal aid.
The issues in the originating Courts and the issues between the parents had to be separated out from the facts as they related to the law. The High Court Judge noted that Mother needed representation. Alsters Kelley LLP[1] accepted instructions from Mother for what would have been the last hearing in London; on a reduced fee. Mother made clear that she would not be able to afford anymore. When the parties attended Court, Mother’s main defence of acquiescence was put forward and the High Court Judge confirmed that for such a defence to proceed she would need to hear directly from Father who was in Slovakia. Legal Aid would pay for his travel and his stay in this country. Mother was confronted with the prospect of having to pay further legal fees which she simply could not afford and so she instructed that she wanted the matter dealt with on the same day. Mother’s prospects of success were low, since Father’s evidence could not be tested whilst on oath[2].
There is an argument here that Mother’s Human Rights were breached and in particular Article 6 the ‘right to a fair hearing’. Should Mother have been granted Legal Aid, as Father was, then she would have been able to secure legal representation earlier. Further, she would have instructed that Father should attend to give oral evidence so that a fair hearing could have taken place.
When the Hague Convention on Child Abduction had been formulated, the intention was to protect against Fathers arbitrarily taking children from Mothers, who would usually be the primary carers. Times have changed and they have certainly changed with regard to freedom of movement in the European Union.
Now it is more likely to be the case that the primary carer, who is invariably the Mother, relocates to do better for herself and the child. Currently Fathers are able to make an application where the presumption is for the return of the child to the originating country. It is argued that this is akin to a sledge-hammer being used to crack a nut. It is further submitted that in order to put the Applicant and the Respondent on an even keel, both should have the same access to legal aid, whether or not it is felt that either party has a weak case. This must be in the interests of fairness.
Balraj Singh Jagdev
May 2011
