F brought proceedings here to seek the return of the child K to Poland from where she had been removed by M. F appealed against refusal of an order for K’s return, citing F’s delay.
Held: The appeal succeeded. The judge had not allowed for F’s lack of understanding of issues of international law: ‘this was the plainest case of abduction. The father’s only vulnerability was his delay between understanding the extent of the mother’s removal and activating the Hague remedy.’
The court considerd the imbalance between the parties in the availability of legal aid. Thorpe LJ said: ‘If a foreign national, albeit an abductor, is obliged to present a case involving specialist issues of international family law before a court in this jurisdiction without any legal representation, and perhaps, as here, without any of our language, it is very hard to see that there is the necessary equality of arms and thus the Article 6 rights to a fair trial.’
Munby LJ said: ‘Any dispassionate observer sitting in this court might be forgiven for thinking that there is unfairness in that state of affairs and something very far from the equality of arms which is supposed, consistently with Article 6 of the European Convention, to underlie proceedings of this sort as indeed all proceedings. Justice, as was memorably observed so many years ago, must not merely be done but must be seen to be done. Although I am confident that, despite the mother’s forensic disabilities, justice has been done, I am much less confident that any dispassionate observer having watched these proceedings today would think that justice has been seen to be done, given the disparity in the resources which the State has made available to the one litigant and not to the other.’
Judges:
Thorpe, Munby LJJ, Coleridge J
Citations:
[2010] EWCA Civ 1546, [2011] Fam Law 336, [2011] 1 FLR 1268
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Re B (Litigants In Person: Timely Service of Documents) FD 30-Sep-2016
Respect for litigants in person – proper service
The court considered the situation where in an international child abduction application, papers were served at the door of the court on a party who was unrepresented, and who had little English.
Held: This was plainly wrong. In such cases it . .
Lists of cited by and citing cases may be incomplete.
Children, Litigation Practice
Updated: 01 September 2022; Ref: scu.428231
