Family Law Hub

Kinderis v Kineriene [2013] EWHC 4139 (Fam)

A Hague Convention child abduction case where the M, who spoke little or no English, was refused legal aid because, as the Cafcass report had not yet been prepared, insufficient information was provided as to the risks the father posed and the prospects of a successful outcome were poor.


  • In brief:
    Here we have a father (“F”) seeking his child’s return to Lithuania following the child’s removal to England.  

    F applied for the return of the parties' 10 year old daughter, who had been taken from Lithuania by her mother (“M”) and then retained in the UK without his consent. He was legally represented by virtue of his eligibility for non means-tested and non merits-based legal aid. 

    M had attended the return date in person, having approached a firm of solicitors who were awaiting the determination of her application for public funding. With the benefit of a court translator, she conveyed her case that the child strongly objected to a return to Lithuania and would suffer psychological harm. She was not due to receive a response from the Legal Aid Agency in time for the case to be resolved within the six week timetable required by Brussels II Revised, so a final hearing was listed for a date seven and a half weeks after F’s application. A CAFCASS report was ordered to explore the child's alleged objections. 

    At the final hearing before Holman J, M again attended in person and explained that her application for legal aid had been refused on a merits basis, and she did not have the means to pay privately. The CAFCASS report, which arguably assisted her case, had subsequently been received by her prospective solicitors but the Legal Aid Agency had not had time to consider an appeal against their initial decision. 

    Holman J expressed his dissatisfaction that M was left to conduct her case through the “legal minefield” of the legislation surrounding international child abduction with no legal assistance and “negligible English”. He emphasised the gravity of international child abduction cases and said that, when such cases were finely-balanced, the court would need as much skilled help as possible in deciding whether to order the child's return. 

    He adjourned the final hearing to avoid a risk of unfairness to M but gave a public judgment to highlight the “chronic” problem of legal aid in child abduction cases. He suggested that in future the only practical way forward, consistent with a six week timetable, would be for the Legal Aid Agency to make an initial grant of public funding, to be reviewed on receipt of the CAFCASS report.

Case note, published: 18/02/2014

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See also

  • A Hague Convention child abduction case where the M, who spoke little or no English, was refused legal aid because, as the Cafcass report had not yet been prepared, insufficient information was provided as to the risks the father posed and the prospects of a successful outcome were poor. The M appealed to the Legal Aid Agency but they had not had time to reconsider their decision before this hearing. The judge expressed dismay over the waste of time and taxpayers money that this delay had on proceedings and adjourned the hearing, which meant that, by the time the case was heard, the six week time limit under the Council Regulation Brussels IIA will have been doubled. Judgment, 23/12/2013, free

Published: 18/02/2014

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