Respondents in child abduction cases apply to law centres as usual. They are subject to the usual eligibility tests and are liable for a legal advice or legal aid contribution.
When completing a Statement of Facts while making an application for legal aid to defend an application under the child abduction legislation:
- set out the facts of the case
- consider, and outline, any of the defences available on foot of the Convention are available to the client (respondent in the proceedings). Specific defences that may be available on foot of the Convention are:-
- the child is settled in its new environment;
- the applicant in the abduction proceedings was not exercising rights of custody at the date of removal;
- the applicant in the abduction proceedings consented to the removal of the child;
- the applicant in the abduction proceedings subsequently acquiesced to the removal of the child;
- there is a grave risk that return of the child would expose the child to physical or
- psychological harm or otherwise place the child in an intolerable situation; and
- the objections of the child to return.
Decision makers, when considering an application for legal aid to defend an application under the child abduction legislation, should:
- consider all the matters set out in the solicitor’s Statement of Facts on behalf of the applicant
- consider in particular, the effect that an order directing the return of the child to the other jurisdiction (not defending the application) would have in relation to the child’s face-to-face contact with both of their parents. For example, if a successful application would result in the child being returned to a jurisdiction outside of the EU/EEA/Switzerland or even a distant jurisdiction within that area. The phrase “EU/EEA/Switzerland” is to be interpreted in this context as including the United Kingdom, in the event of its withdrawal from the European Union.
- regard the application as dealing with the welfare of a child and, as such, sections 28(2)(c) and (e) of the 1995 Act may not be used as grounds to refuse the application
- in any case, the remaining merits criteria should be given a wide application, and a decision maker should be slow to refuse the application unless it is clear that there are no reasonable grounds, as a matter of law, for defending the proceedings.
We have best practice guidelines in child abduction cases which can be found later in this Circular.