An Unfunded Voice: Legal Aid and Pro Bono’s role in creating inequality between parties in International Child Abandonment cases.

Writer: Corey Beekmeyer

Editor: Ruqaiya Anser

Unqualified Legal Aid in Child Abduction Cases

When a child is removed without a parent’s permission or knowledge across international borders, the emotional toll can be overwhelming. Many countries have addressed this by ratifying the Hague Convention 1980, which provides the legal mechanism to facilitate the child’s return across states. Due to the distressing nature of these situations, the instrument does not say “we will get your child back, but for a price”. Instead, Article 26 ensures applicant parents cannot be charged legal costs for applications and automatically qualify for Legal Aid.

However, it is unfortunate that in striving for accessibility, an unequal power dynamic was created - the party seeking their child's return always has legal representation, whereas the abductor of the child, or the respondent, does not. Instead, they must first satisfy the “means and merits test” to qualify for Legal Aid.

A means and merits test is a method of qualifying who can receive Legal Aid. An applicant must earn under a certain amount – means, and have a legal case of proportionately worthy enough to fund - merits, subject to varying conditions like public interest. In practice, the gravity of the situation means that the case is proportionately worth funding. However, the boundaries of the means test inevitably lead to the exclusion of certain abductors from having their case funded. Practicing child abduction solicitor, Amna Khaliq, has noted in practice most respondents will satisfy this test. Nonetheless, the minority which has been left to fend for itself should not be disregarded; “injustice anywhere is a threat to justice everywhere”.

The “Abductor”

The respondents who abduct the children are plainly “abductors” - a person who takes another by force. The stigmas of cruelty and unlawfulness surrounding an “abductor” are strong, and we may feel morally obliged to give the appellants an edge. However, by detaching ourselves from these stereotypes of the “abductor”, it becomes apparent that an abductor may have a good reason, such as escaping domestic abuse. In the given example, the Convention reflects this possible justification in Article 13b where a child will not be returned if at risk of “grave psychological harm”. Surely the drafters did not mean this to become “dead letter”, by leaving abductors ill-equipped against the appellants armed with Legal Aid?

 Role of Pro Bono?

Abductors may have one last hope for legal representation with Pro Bono services. However, this is not available in the traditional sense for these cases. International Child Abduction is a complex area of law; so much so that the solicitors must be specially approved onto a panel for this work. Due to the complex and intense workload of these cases, Amna Khaliq notes that pro bono work is simply unfeasible for this area of law. Currently, some basic advice before hearings is available, which is offered by the generosity of the solicitors panel, and which Amna Khaliq notes is often insufficient barebone legal advice.

Summary

Parents should not be denied the return of their child because they cannot afford legal representation - this is obvious. This was not lost on the drafters of the Hague Convention. But we should take a step back from the prejudices of the appellant as the “good guy”, and the abductor as the “bad”. With the impracticality of pro bono work in this area, the scope of Legal Aid must be widened to include the minority of respondents who have been left to fend for themselves, and who require legal representation to fight prejudices of wrongdoing.