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01 SEP 2011

David Hodson on International Family Law: A cool summer for international family law

David HodsonIf it was going to be the coldest summer for many years, then perhaps not the worst time to spend it indoors with the Redbook! Jordans’ A Practical Gide to International Family Law is being published in its second edition in January 2012. Although it will have more contributors on the specialist chapters than the first edition, the bulk still remains with the author! Although I knew there had been many changes since the first edition was written early 2008, I have been amazed at how many areas have had significant case law and statute differences. Whilst some chapters have coped with the amendments, a good number have had to be almost entirely rewritten.

Greatest change of course is the new rules, FPR 2010 in effect April 2011.  When they were first published I congratulated the drafting committee for having included rules in respect of many international aspects, eg reciprocal enforcement and the Mediation Directive.  I appreciate the new rules were not written with authors primarily in mind.  Nevertheless I and many others have had much harder work because there is no table showing where the old rules now appear in the new rules. Some seem to have simply disappeared!  Some have been sensibly reordered into other locations.  Quite a few of the explicit procedural requirements have gone because they have been absorbed into either Part 18 or Part 19 procedures.  This is understandable and laudable.  But in the international context, it has meant that there are then additional rules showing where either 18 or 19 do not apply.  The fact that there are clearly a number of very minor wording changes which are needed, more by way of tweaking, eg as identified by Munby LJ in Traversa earlier this spring, doesn't detract from the colossal work in the FPR 2010.

We have already had our first updating amendment to the rules, consequential upon the coming into force of the EU Maintenance Regulation in June.  More than ever before it has shown the importance of consulting an updated annotated version of the rules.

Although there has already been criticism of inconsistencies in the rules in terminology, it has been very stark when updating a previous textbook.  Many of us still find it difficult to think of a divorce petition in being described simply as an application, as occurs in many places in the depths of the rules, eg in terms of recognition of a foreign divorce in the EU and elsewhere. This is especially as decrees nisi and absolute still appear.  Perhaps time will permit familiarity and acceptance.

Another reflection has been the increased layering of conventions, particularly in the always complex area of reciprocal enforcement.  We have recently a new Lugano convention but not all the signatory states of the previous Lugano convention have signed up to the new one so, state by state, we need to look at either the original or the successor convention.  The EU Maintenance Regulation has replaced BI in the family law context but many domestic and international statutes dealing with family law issues still refer back to BI.  We still have jurisdictions, outside of the EU, which are signatories to several reciprocal enforcement conventions so the practitioner has the choice.  Equally we still have some very important jurisdictions which are not party to any with the UK.

Amongst the criticism of the EU in its dogged determination to impose applicable law on the UK, we should openly accept the many benefits of cross Europe legislation such as on service and taking of evidence.

Whilst case law continues to multiply, this veritably becomes a population explosion in the context of child abduction. There are masses of reported decisions, more than any other area of international family law by a long way.  Some of course are only illustrative and fact specific. However many change in various ways local, EU and Hague laws interpreted here in England.

Whilst international family law has always required close working with lawyers in other relevant jurisdictions, updating the book has demonstrated even more the fundamental importance of being able to do so quickly, relatively cheaply, reliably and practically with experienced practitioners. Conferences such as the annual IAML being held in Harrogate this coming week will be increasingly vital.

When Brussels II first arrived 10 years ago it was obvious then that the financially weaker party, unable easily and quickly to put their lawyer in funds to take international advice, would lose out to the financially stronger party and have a much less good outcome.  The past decade has only seen the number of these instances increase both in the race to issue a divorce petition and also in other ways concerning international families.  The position for the legal aid party is dire.  It is with a very heavy sense of irony that one observes the EU requires member states to make available effective access to justice for citizens litigating in another Member State.

International family law statutes continue to throw up the most labyrinthine, dense and convoluted wording.  Some subsections are simply tautologies.  Some almost defy rational interpretation.  Certainly impossible for a litigant in person.  Some confounded me at the time of writing the first edition and still mean very little at the time of the second! Fortunately they haven't featured in any decided cases either!

At the same time as case law has proliferated, so have the number of conventions, regulations, directives and similar international laws. At the moment they are not in any one place, hence the decision to bring them together in the new textbook.

A long cold summer. Some red-hot beneficial improvements in our law for some international families.  Sadly, some chilling prospects ahead for many international families having to rely on national and international laws.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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