Civil legal aid for child abduction/custody cases: simplified application arrangements for Hague Convention and European Convention on the custody of children cases

Special arrangements apply where a non-UK resident seeks legal aid for an application to the Court of Session in terms of either:

• Hague Convention on the Civil Aspects of International Child Abduction
• European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on the Restoration of Custody of Children.

These conventions contain wide-ranging and detailed provisions, not covered in detail in this guidance.

Hague Convention

This is an agreement between contracting states to facilitate the return from one state to another of a child wrongfully removed in breach of custody rights, applying in the state where the child is habitually resident.  The right of custody in question may have arisen by operation of law, or by judicial or administrative decision, or by a legally binding agreement.

European Convention

This is an agreement between contracting states to facilitate the recognition and enforcement of orders relating to the custody of a child notwithstanding the improper removal of the child across an international frontier.

Both conventions set up a central authority in each state responsible for helping people to benefit from the convention provisions. The central authority in Scotland is the Scottish Government (which, in practice, discharges its functions through the Scottish Court Service).  Your client should apply to the Scottish Government for assistance under the convention, providing appropriate documents and information.  If it appears that they will have to take judicial proceedings, these must be taken in the Court of Session.

In Scotland, legal aid is made available automatically and without payment of a contribution.  To facilitate the grant of legal aid, the Scottish Government provides a certificate confirming that the application to the Court of Session is an application under the appropriate convention

As this work must be done expeditiously, the provisions for making legal aid available in Scotland have been simplified and streamlined.  In such cases, the need to assess financial eligibility or probable cause or reasonableness has been eliminated. [Regulation 46 of the Civil Legal Aid (Scotland) Regulations 2002]

The following requirements do not apply:

• Applications nor statements are needed.
• The legal aid application is not intimated to any other party.

Your client’s application for legal aid should be made in the usual way via Legal Aid Online.  It must be accompanied by:

• A statement signed by you explaining the nature of the case and your client’s interest in it
• A certificate from the Scottish Government that the application for legal aid relates to a Convention application.

Make it very clear when submitting your client’s application that a convention application is involved and normal requirements should not apply.  We should grant legal aid immediately (given everything is in order).

Similar administrative arrangements apply where your client has a convention certificate and wants legal aid to appeal to the Inner House or the Supreme Court.  However, we must be sure your client has probable cause and that it is reasonable to grant legal aid.

These arrangements do not apply to:

• A resident within the UK
• Someone who wants to oppose such an application.

Your client holding a custody or child residence order from a Scottish court may apply to the Scottish Government for assistance under the conventions in having the order made effective in another contracting state.  Legal aid will not cover any proceedings in a court of the other contracting state.