Access to justice, legal aid
Articles 44 to 47 of the Maintenance Regulation have the objective of guaranteeing effective access to justice for parties involved in a dispute covered by the Regulation. In order to ensure effective access to justice, the Member States are requested to provide legal aid in accordance with Chapter V (see Article 44(2)). No obligation to provide legal aid, however, exists for a Member State, in cases covered by Chapter VII (i.e. the Chapter on Central Authority co-operation), “if […] the procedures of that Member State enable the parties to make the case without the need for legal aid, and the Central Authority provides such services as are necessary free of charge” (Article 44(3)). In any case, the entitlements to legal aid cannot be “less than those available in equivalent domestic cases” (Article 44(4)). Article 44(5) furthermore clarifies that “[n]o security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in proceedings concerning maintenance obligations”.
According to Article 45 of the Maintenance Regulation of “legal aid” is defined as: “the assistance necessary to enable parties to know and assert their rights and to ensure that their applications, lodged through the Central Authorities or directly with the competent authorities, are fully and effectively dealt with”. Legal Aid can cover (see for further details Article 45 of the Maintenance Regulation.)
- pre-litigation advice with a view to reaching a settlement prior judicial proceedings
- legal assistance in bringing a case before an authority or a court and representation in court
- exemption from or assistance with the costs of proceedings
- interpretation
- translation of the documents required by the court or by the competent authority; etc.
A major improvement brought by the Maintenance Regulation (and on the global level through the 2007 Hague Convention) is the guarantee of free legal aid for child support cases. Article 46(1) of the Maintenance Regulation requests free legal aid to be provided by the requested Member State for all applications through the Central Authorities under Article 56 by a creditor “concerning maintenance obligations arising from a parent-child relationship towards a person under the age of 21”. A refusal of free legal aid in child support cases “for applications other than those under Article 56(1)(a) and (b)” is only possible, if the competent authority of the requested Member State “considers that, on the merits, the application or any appeal or review is manifestly unfounded”, see Article 46(2) of the Regulation.
In cases not covered by Article 46, legal aid may, subject to Article 44 and 45, “be granted in accordance with national law, particularly as regards the conditions for the means test or the merits test”, Article 47(1). If a party has in the Member State of origin benefited from complete or partial legal aid or exemption from costs or expenses, the person “shall be entitled, in any proceedings for recognition, enforceability or enforcement, to benefit from the most favourable legal aid or the most extensive exemption from costs or expenses provided for by the law of the Member State of enforcement”, Article 47(2). The same rule applies where a party has benefited from free proceedings before an administrative authority listed in Annex X in the Member State of origin, see for further details Article 47(3).
As mentioned above, the inclusion of far-reaching legal aid provisions and, in particular, the guarantee of free legal aid for child support cases in the 2007 Hague Convention constitutes a major improvement for creditors in cases of cross-border recovery of maintenance. Similar to Article 44 of the Maintenance Regulation, the 2007 Hague Convention requests Contracting States to provide “effective access to procedures” arising from the applications under Chapter III of the Convention through the provision of “free legal assistance” in accordance with Articles 14-17 of the Convention. The term legal assistance is defined in Article 3 c) of the Convention. See for the details on “free legal assistance” under the Convention Article 14-17 of the Convention and the Borrás/Degeling – Explanatory Report on the 2007 Hague Convention at paras 356 et seq.
See also and also the Draft Practical Handbook for Caseworkers under the 2007 Hague Convention (final version to be published in 2012).