Solicitor and Legal-Secretary to the Head of International Family Justice for England and Wales, Edward Bennett discusses resolving family disputes in a globalised world.
When imagining diplomacy or communication at an official level between representatives of different states with the objective of making a tangible impact on the lives of the citizens in whose name they act, we generally think of such matters being conducted by politicians, civil servants and diplomats. What is less well known is the critical role that intra-judicial communication can play in the resolution of international disputes, especially those involving families and the custody of children.
International relations, people’s lives and interactions generally, are taking place in an increasingly globalised context. Unlike the world of Tudor England where the word ‘country’ frequently meant ‘county’, we can no longer afford not to think globally, or, at the very least, internationally. Better transport, the internet and mobile telephones have all contributed to our freedom to move across borders. With such movement comes the formation of intimate relationships and the creation of family units which are truly international or which have an international aspect.
Consequently, judges across the world are dealing with ever increasing numbers of family disputes requiring a consideration of international factors. In circumstances where a man from the US divorces a woman from Australia that he met in London, where and with whom should the children who have grown up in the marital home in the UK live? The paradox judges face is that the technical developments facilitating globalisation have become widely available and a renewed surge of nationality has seen the disintegration of empires and unions with the consequence that the world is now divided into approximately 200 autonomous states. Disputes involving international families, as with trans-national trade or crime, require law and practice extending beyond the internal laws of the two or more states directly involved in the resolution of the issues.
Family disputes are emotionally draining for all involved, but are especially so when they concern children, both in the private (between adults) and public law (where social services are involved) spheres. Such strains are invariably magnified when an international element is added to the mix. All too often, a child will be moved from one country to another by one adult without the permission of another or, in public law cases, state social services. Legal proceedings might exist in relation to such a removal in several jurisdictions. Disputes over jurisdiction, courts in different countries not knowing what is going on in other jurisdictions, and other issues all serve to ultimately hinder what might be in a child’s best interest.
Clearly, when considering cases of this kind, judges have to look at both the domestic law of their jurisdiction and the various international instruments that exist to provide a framework for resolving international family disputes. The primary law makers in international family law are the Hague Conference, the EU, the UN and the Council of Europe. On the child abduction/wrongful removal front, for states that have signed up to them, the 1980 Hague Convention on the Civil Aspects of Child Abduction and its sibling, the 1996 Hague Child Protection Convention provide unique international mechanisms for preventing and remedying wrongful international movements. Amongst other things, they contain jurisdictional rules for judges to apply and give strict time frames within which cases have to be resolved. In circumstances where such treaties don’t apply, there are other options. A judicial protocol, for instance, exists in relation to child abduction cases involving Pakistan and the UK.
However, treaties are but black letter law, and divergence inevitably exists when they rely for their application upon domestic courts. With it can come both delay and gaps in factual or legal matrices that can hinder successful dispute resolution. It is here that intra-judicial communication is so crucial. A judge in State A may want to be sure that Safe Harbour Orders are possible in State B. He may want to know whether the threat of criminal proceedings can be neutralised. He may want to know how quickly an issue can be listed. The judge in State B may want information as to the law or as to the progress of the proceedings in State A: for instance what protective measures are necessary to safeguard the child on return?
Judicial communication of this kind can only occur if it is done in such a way that it doesn’t either jeopardise the independence of any judge involved, or prejudice the parties at its centre. Under the auspices of the Hague Conference, an international network of liaison judges was created in 1998. At present, it contains about 68 judges representing 46 jurisdictions. There is a similar network in respect of EU states, the European Judicial Network. If a judge in one state needs to communicate with another, they go to their liaison judge, who contacts the liaison judge for that jurisdiction, if there is one. They then either answer the questions if appropriate, or seek the advice of the judge working on the case. In all instances the parties are kept informed of what has been asked, and what responses have been received.
In addition to the appointment of liaison judges, two jurisdictions, England & Wales and the Netherlands, have gone even further. They have established dedicated offices to provide a comprehensive service to trial judges who encounter difficulties in trans-national cases, and who wish to communicate directly with the judge in the other jurisdictions, or are judges from abroad seeking assistance vice versa. In England & Wales, the Office of the Head of International Family Justice functions as a centre of expertise and a help desk for general enquiries in the field of International Family Law for the judiciary and practitioners in this jurisdiction and overseas. Its purpose is to support cross-border judicial collaboration and to enhance the expertise necessary for handling the large number of cases relating to aspects of private international law. It serves as a contact point for the courts in England & Wales when they hear a case of international child abduction or a case involving aspects of international child protection and wish to consult a foreign judge, and vice versa where a foreign judge wishes to consult with a English judge.
Celebrating its 15th anniversary in 2013, the Hague Network goes from strength-to-strength and continues to attract increasing amounts of interest. In August 2012 for example, the President of the Swiss Supreme Court Lorenz Meyer, speaking at the Anglophone-Germanophone Standing Judicial Conference, expressed the need for Switzerland to have a network judge.
There is still much work to do. It is noticeable that of the 88 contracting states to the 1980 Convention, only 46 have network judges. There are still jurisdictions for whom judicial liaison is novel and unknown, particularly across the Islamic world, Africa and Central Asia. It is to be hoped that as the fruits of judicial communication become apparent, it will be increasingly adopted. Judicial liaison working can be seen in the following recent example:
Two children were born and lived in Country B. They were removed by their father and uncle and brought to England, having travelled by road and rail through Europe. Shortly after their arrival, they were taken into police protection having been found in a make-shift shelter near live train tracks. It emerged that there were ongoing care proceedings concerning the children in Country B. Although the father and uncle had the consent of the mother to take the children out of the country, they did not have the consent of the local social services which had a care order in respect of the children. Communications between the English and foreign social services had broken down. It was difficult to establish who had jurisdiction in the matter, whether the children should be returned to Country B, and if so, under what conditions. The uncertainty surrounding the childrens’ legal status was delaying making any meaningful plans for their future. However, it was through judicial communication that collaboration between the social services of both states’ was restored.
As Lord Justice Thorpe, Head of International Family Justice for England & Wales has written: ‘The value of … (a judicial network) is not just to promote good collaboration in specific cases: underlying it is the commitment of the State to the development of international family justice…..Judges can improve the quality of justice delivered in the domestic courts of the world through judicial collaboration. Judicial liaison can reduce delay and financial costs to litigants and to individual states and can reduce the emotional distress that can often be heightened in such cases.’ Judicial diplomacy can be very effective. Long may it continue to grow, develop and flourish.
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