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Family Law

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23 JUL 2013

David Hodson on International Family Law: Japan has responded to the EU review, so have you?



International Family Law Practice by David Hodson

David Hodson

The Sunday Times on this past Sunday carried a front-page headline reporting apparent indignation that Japan had made comments urging the UK to stay in the EU. The story featured the concern that Japanese carmakers based in the UK wanted continued access to the European market. It reported certain MPs and others asking what Japan was doing by interfering in UK domestic politics.

The clue to the real background to the story was, as often, deep in the body of the article. Japan was responding to a request by the UK government to other countries about UK continued involvement in the EU, the review of the so-called balance of competencies being carried out now. Two other EU countries also responded.

Launched in July 2012 it is a massive project covering all government departments and all aspects of our life: social, commercial, political, foreign policy, environment, tax and much more. The first responses, primarily in the arena of foreign policy including inter-governmental, were published on Monday. However consultation on many other areas is still ongoing. It will be continually in the headlines as further reports are published.

One part of this review is family law and is carried out by the Ministry of Justice. I wrote about it in my opinion piece two weeks ago entitled: Ministry of Justice review of EU powers in family law.

The closing date is 5 August 2013.

This is the opportunity for all UK family lawyers to have our democratic say in the U.K.'s future relationship with the EU on family law. It should not be wasted. We may well have a referendum in 2017 but it will be a simplistic "in or out" question. Family lawyers will decide how to vote by much wider considerations than simply family law. That referendum will not be our democratic opportunity to be heard on our relationship with the EU on family law. This review is our opportunity and we should take it.

I know the Law Society Family Law Committee and the FLBA via the Bar Council are well advanced in responses. But the government seeks responses from individuals including practitioners working in the field of family law and able to comment reliably and objectively about how the EU powers and laws affect family life and family law. Family lawyers are the very best at being able to give that distinctive and practical response.

So we should do so.

It does not require extensive high-powered responses. Although there are a series of questions, they look like identikit civil servant format and really do not fit the bill of the issues affecting family law at the moment. So say what one thinks and then find the most applicable question and put down one's opinion and experience.

The description of "balance of competencies" is very unclear to most of us. As far as I can tell, in the family law context it means essentially the powers and extent of powers of the EU including the EU's asserted competency in making laws and imposing laws in cross-border EU cases and in imposing laws for cases which do not affect other EU countries, the so-called power of "universal application". Have they got too much power in lawmaking?  Are they taking upon themselves too much power including laws which are not acceptable to the UK?  Are they refusing to listen to reasonable and legitimate objections about laws which are working very badly and contrary to what was intended and contrary to the culture of family law practice in the UK. Have their powers, their asserted competency in making far reaching laws, gone too far?  Is the balance of competency now unbalanced?

So this is nothing to do with whether the UK should be in the EU or come out. This is a distinct opportunity for us family lawyers as part of this massive consultation to give our opinion on EU law in the context of family law.

There is much which could and will be said. Perhaps some areas might be:

  • How lis pendens, the first to issue principle, has worked badly and contrary to the UK culture of practice of encouraging before the issue proceedings all reasonable attempts for settlement and mediation and instead favouring the forum shopping spouse; with the EU apparently unwilling to countenance any objections since this law was introduced in 2001.

  • The continued attempts to oppose on the UK the concept of applicable law in which every lawyer and every judge would apply not necessarily the law of England and Wales or Scotland or Northern Ireland but the law of any country in the world with which the couple may have any particular connection; highly likely to increase the costs of cases, create greater uncertainty, cause real injustice with cases decided differently but on the same facts.

  • Imposing without consultation laws that affect UK cases with non-EU countries and which are not reciprocated by those non-EU countries, for instance the lack of any power now to grant needs-based orders when the only connection is sole domicile which many from the UK working abroad need to establish jurisdiction here.

  • Demanding that the UK and other EU countries have no political and legal power to enter into family law agreements with non-EU countries without EU approval, so that, for example, we cannot become signatories with countries joining the 1980 Hague child abduction convention such as Singapore and possibly Japan next year, and instead have to treat them as if they were non-Hague countries, putting abducted children at greater risk.

  • Justifiable praise for good EU legislation such as unified divorce jurisdiction across the EU, harmonised measures regarding service of proceedings, taking of evidence, legal aid, encouragements of mediation and more.

This consultation is very important indeed. All practitioners dealing with any international families, EU or non-EU, should respond.

Details can be found here (pdf) and/or by following this link:
https://consult.justice.gov.uk/digital-communications/balance-of-competences

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 chair of the Family Law Review Group of the Centre for Social Justice. 

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). 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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