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The case of Gitana Kineriene (‘GK': Kinderis v Kineriene  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:
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  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':
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):