There’s continued discussion on social media and legal media about lobbying to reverse cuts to legal aid. Today’s quote was the Chairman of the Bar saying “We believe access to justice is a fundamental part of the rule of law and are doing all we can to help limit the impact upon those who find themselves in this dire situation. However, there is only so far the legal sector can go in tackling this problem. It won’t go away unless the cuts to civil legal aid are restored so that those of limited means can, again, have proper access to justice.”
It’s wrong that one party gets free representation if making allegations of domestic violence yet the accused gets no help at all. We should remember though that before legal aid cuts came in, many didn’t qualify for legal aid but couldn’t afford a solicitor. If there is to be the access to justice that the Bar calls for, eligibility criteria needs to be far more realistic than was previously the case.
Regardless of that debate, there’s another which seems to be ignored entirely. The shameful lack of funding to assist parents whose children are abducted abroad to non-Hague Convention countries. We should also not forget those parents whose children are abducted to a Hague Convention country, in instances where the foreign state does not comply with return orders or where there are protracted appeals abroad. Legal costs can (and do) run into six figure sums and at times appeals take years to conclude.
Yes it’s hard to be a litigant-in-person in the UK, but image for one moment the mountain you must climb if the case is half way around the world, where technical language goes beyond your standard tourist phrase book, where a delayed hearing can see flights lost and budgets burned away. God help you if you’re too poor. God help your children too.
In the last month, there was sympathy for a father whose child went missing for three weeks. Consider the impact on a parent whose child has been missing for years. There are many ways to trace a child in the UK. Fewer in a foreign jurisdiction where private security firms offer to use their intelligence links if you can find five figure sums of money.
For these parents seeking to recover their unlawfully abducted children, there is no help with travels costs or legal fees in foreign courts. I would imagine in a civilised society most would agree these people have the greatest need, and a greater need than parents in the UK’s domestic courts. In the cases I’ve been involved in, there is an appalling lack of state support where British minors are unlawfully abducted abroad. The British Embassy in the foreign country may offer limited help (e.g. finding a local solicitor) but getting a Foreign Secretary or other Government Minister to take a personal interest can require a crowbar. We’ll let the Foreign and Commonwealth office set out the limits on their assistance (taken from their advice leaflet):
The first limitation is fair, however remember we’re talking about unlawfully abducted British children. Unlawfully… a crime has been committed, and one involving a child. If your car had been stolen in the UK, imagine the outcry if the Government told the victim it was their job to locate the car and to prosecute the criminal – ‘if’ they managed to locate them – and it is the victim’s responsibility to find the criminal too! We’d say a child is somewhat more precious and important than a Ford Focus, and the crime of international child abduction is rather more deserving of Government taking the lead role in recovery. In reality and in practical terms, the UK parent is left in the situation of “it’s your child, your problem”.
We’ve just seen the case in the media of two fathers whose children have been taken into Syria. It made headline news due to the Islamic State/war zone angle of the story, but many other parents sit in their homes with no voice at all and little help. While it may assist them to have the High Court make the child a ward of court (to use that judgment/order while pursuing the child’s return in a foreign court), they get quoted fees of up to £10,000 by law firms and this is before they then have to bear international travel costs and legal fees (and possibly private security firms’ assistance in locating their children).
It’s fair to say a number of solicitors and barristers provide help and assistance to these parents free of charge. For most though there is no such assistance. I find it impossible to justify an amount of £10,000 for help preparing documents, a position statement and attending an ex-parte hearing. A tenth of that sum would seem more reasonable.
Much of the work in supporting parents is dropped upon the shoulders of the charity Reunite. The Foreign and Commonwealth Office recommends parents contact them. Part of their funding (the majority) comes from the Government, but the level of funding is shockingly low. If the charity paid their staff in line with Member of Parliament salaries, they would only be able to afford two members of staff. The UK Government spends 18 times as much on subsidised lunches for MPs.
So what would we like to see?
- Legal aid funding for applications for wardship orders in the UK jurisdiction, where a child is unlawfully abducted to or retained in a non-Hague Convention country.
- Once a child is made a ward of court, the UK Government to bear foreign legal costs related to the child’s return.
- The UK Government to be a party to proceedings in the foreign jurisdiction bearing responsibility for the return of the abducted British minor (it’s not unheard of, and we’ve seen foreign Governments party to proceedings in family cases heard in the UK’s High Court).
- A named civil servant at the Foreign and Commonwealth office for each individual case.
- A specialist legal department established at the Foreign and Commonwealth Office tasked with litigating in foreign jurisdictions. We would argue the Government and FCO should be interfering in the return of an abducted British child, and should be party to proceedings!
- Assistance with travel costs where the UK parent is proposed as a witness by counsel for the UK Government (or the costs of video link).
- Proper funding for charities in this sector.
We hope the Bar Council will widen their lobbying activities for ‘access to justice’ to include this most vulnerable group, parents whose children are abducted abroad.
If you’re affected by matters raised in this article, or believe your child may be at risk of abduction abroad, we recommend you contact the charity Reunite and also please refer to our guide on International Child Abduction. We also recommend Reunite’s Prevention Guides.