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Family Law

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Court of Protection Practice and Procedure Conference 2016

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11 MAY 2015

The British general election 2015 and international family law

David Hodson OBE

Family lawyer


The British general election 2015 and international family law
On 7 May 2015 the United Kingdom went to the polls to elect our next government. What might be some of the outcomes and future considerations for international family law from the perspective of England and Wales?

For the past 5 years the UK had been governed by a coalition of the Conservative government, unable numerically to command a majority in the House of Commons, with the Liberal Democrats. It had been a very difficult period as the country faced harsh economic conditions from the GFC of the last decade and a large economic deficit. It has been a period of austerity and public service cuts with inevitable government unpopularity. The opinion polls in the weeks before the election showed the two main parties, the Conservatives of the right and the Labour Party of the left, tying at about 33%. Crucially for almost the first time in British politics in recent decades, there were several other parties commanding significant public support although it was unclear how this would convert into seats in Parliament in our ‘first past the post’ system.

The result on the morning of Friday, 8 May 2015 could never have been expected. The Conservative government has 331 of the possible 650 seats although this itself is a little misleading as Sinn Fein have four seats but never attend, so a majority required only 324 seats. Slim but a majority especially with occasional support from the one UKIP seat and some of the Northern Ireland MPs. No more coalition government. The anticipated weeks of haggling as to who would form a government to command confidence of the house has not occurred. Within a couple of days most of the Cabinet seats were filled.

What may be therefore some of the consequences looking forward to the future?

The country remains open for international families

There had been real concern that policies likely to be introduced by a left-wing administration would have directly discouraged some international families from coming to this country or staying here, with a perceived disadvantage for our economy. Threats for particular taxation of non-domiciliaries, an annual tax on all real properties worth more than £2 million, changes to estate tax, and other proposals may well have meant that some international families of some level of wealth would either not have come or might have left. (In contrast to these threatened policies, some other Western European countries are actively seeking to attract non-domiciliaries with the perceived consequential benefits to economies.) With the threat of these policies removed, England will continue to be the home of many international families from around the world.

Moreover, threats from a left-wing administration, if in power, to break up elements of the banking industry and impose certain forms of City regulation and other proposals directly affecting the financial sectors which contributes such a large amount to the English economy may have discouraged banks and other financial institutions from having their offices here and running much of their work from here, including their employees coming here from abroad for work. England has to maintain its key role in financial services in the world and in doing so will encourage more international families to this country

One of the key Conservative manifesto promises was an EU in out referendum within a couple of years. The Prime Minister will now be doing his best to negotiate powers back from the EU to Britain. But the EU has made it adamantly clear that although it will entertain discussions, the free movement of people around the EU is non-negotiable. So if the referendum results in the UK staying in the EU, the open borders policy will continue so England will still have very many European families living here. It will mean that international family law continues to be of fundamental importance.

A distinctive feature of international family law over the past few years has been the huge increase in the number of international public law, care cases often (but certainly not always) involving parties from Eastern Europe. It has had an impact on local authorities in some parts of the country and significantly added to the work of the family law International Liaison Judge’s office. This is likely to continue although the government wants to introduce a prohibition on state benefits for EU immigrants for the first couple of years after arrival which might have some impact.

One of the policies of the previous government which the Conservatives want to continue is key visa allowances to encourage Fast Track entry opportunities of skilled personnel from a number of countries. This has been coupled with direct discussions with countries such as India and China for these visa opportunities. UKIP has had a significant influence on some elements of Conservative policy and they have proposed an Australian points system for immigration. Presuming something like these policies are brought in, there will again be more international families in England.

One of the hotly disputed issues in the election was that restraints on immigration promised before the 2010 election had failed. There was significantly more immigration than had been anticipated, primarily from the EU. It is a live issue within the country. There seems to be good evidence that it has in fact had a net benefit for the economy.

It seems likely that in various ways new government policies will directly or indirectly encourage or support international families coming to this country. International family law will continue to be of great importance.

Relations with the EU

This will be a central feature over the next 2 years until we have the EU in out referendum. Unlike the Labour Party and the Liberal Democrat parties, the Conservatives promised this referendum. It is timed for a couple of years with the intent that the government endeavours to negotiate with the EU that certain powers are repatriated to the UK (although the referendum may well be brought forward to mid-2016 because of the uncertainty of the outcome on the economic markets). So David Cameron will be frequently knocking on the door of the EU for the return of previous UK sovereign powers. Dependent upon his success may be the outcome of the referendum. Although a significant generalisation, there are many in the UK who still support the trading related benefits of the original Common Market but are very unhappy about some of the widespread social and similar changes imposed by an EU which seeks a unified approach on so many aspects of national and social life. Family law is very much within this category. The direct imposition of EU laws has been a significant feature of our family law in the past 15 years

So what should happen and what might happen in the negotiations? Of course there must be the possibility, perhaps probability, that family law will feature nowhere on David Cameron’s shopping list on his trips to Brussels. But I doubt it. Some of our family law disputes with the EU are directly linked with other areas of law. In essence the EU has unilaterally seized for itself the power exclusively to enter into bilateral treaties and conventions with non-EU countries. It will not allow any member state to do so on their own: colossal financial penalties are at risk of being imposed. UK lawyers in other areas of law are angry about it. Other member states are also very unhappy with other parts of national life, perhaps affecting other member states more than the UK, also affected.

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International Family Law Practice, The

International Family Law Practice, The


Provides comprehensive coverage of the international elements of English family law

Available in Family Law Online
International Family Law

International Family Law

The practice title for family lawyers engaged in/dealing with issues European and worldwide

Available in Family Law Online
The matter was distinctively taken to the European Court last April, 2014, with a decision handed down in October 2014. Although most member states did not support this EU seizing of powers, the European Court ruled that it was valid and appropriate. The consequence is that we cannot now enter into, for example, the 1980 Hague Convention on child abduction with Singapore (and other countries), with which we have many family dealings, unless and until the EU gives the go-ahead to join up for the entire EU. Other member states are also unhappy at this restriction because it prevents their child abduction dealings with countries with which they have significant international family law traffic. Entry into 2007 Hague Maintenance Convention was delayed for this reason. This is a classic illustration of a power too far. There is no good reason why Member States cannot enter individually into multilateral treaties and conventions with non-EU countries. This imposition of EU exclusive competency power extends into several areas of social and commercial life. It should be repatriated quickly.

There are other difficulties with EU family law legislation such as the first to issue principle, lis pendens, the continued attempt to impose applicable law and similar. But whilst on an ideal shopping list for renegotiation is, it’s part of the bigger picture of our relations with the EU and unlikely to feature specifically in pre-referendum negotiations.

One of the problems in practice across Europe is that there are a number of EU Member States which, as a result of severe austerity cuts and other reasons, have relatively or very slow judicial systems and procedures which have an impact across the entire EU for international families. The EU has seemed unwilling or perhaps unable to intervene. A combined justice system may be laudable but needs consistent and good standards from the individual justice systems. This may be an increasing issue over the next 5 years dependent on the economies of some EU countries.

In the concluding chapter of the new edition of Jordans The International Family Law Practice, published late May 2015, I have conjectured what family law might be like if we left the EU. Certainly there would be things which we would miss but many of those provisions already exist in Hague Conventions which are certainly good enough for other parts of the common law world. Some could survive with specific Conventions with the EU such as Lugano. It’s an interesting debate.

Family law is a minor component of the negotiations in the next 12 months with the EU. But the attempts by the EU to create one family law judicial system across the entire EU based primarily on civil law concepts and very different to English traditional provisions and procedures will inevitably continue unless there is some pulling back by the EU. These negotiations may be vital in many ways.

Human rights

The European Convention on Human Rights extends beyond the EU. The Conservative administration has indicated that it has become very unhappy at what it perceives as a succession of cases where undeserving applicants have been given rights including the right to stay in the UK despite e.g. criminal offences, failed asylum attempts and/or awarded damages. The government seems to be attempting to withdraw from the Convention, perhaps substituting a British Bill of Rights.

This is hotly opposed by many lawyers from different disciplines. For family law there needs to be a careful informed debate (probably in conjunction with immigration lawyers who are often most directly affected) about whether the Art 8 right to family life has had an all-round benefit to our national life including our family life or whether it has, as alleged, been used as a defence to perhaps otherwise unworthy or difficult to justify claims.


This has been perhaps the biggest feature of the 2015 general election. After the narrow defeat in September 2014 of the independence referendum, the Scottish National party has taken over the seats occupied by the Labour Party and now has 56 seats, almost the entire 59 seats in Scotland. It is a party which is probably left of the Labour Party and utterly committed to defeating the so-called austerity measures of the Conservative government. It still wants independence and sees this incredible success in the election as an opportunity for a quick rerun referendum, despite what might be said on the record by their leader. David Cameron fought hard before the September 2014 referendum to hold the United Kingdom together. He will have to fight even harder, now within the UK Parliament in London, to resist Scotland seeking its independence.

The worry from England is that the payments going to support Scotland, already quite significant, will increase to ensure continued Scottish unity. A time may be reached soon when Scottish demands become unacceptable to England. Interestingly, if the EU in out referendum were to decide that the UK wanted to leave, Scotland (and Wales) would most definitely want to stay in the EU which would cause both constitutional and EU political issues. Another possibility is some variation of a federal basis, although perhaps more the Australian rather than the US model.

In fact within family law it’s not a big deal. As I wrote on the eve of the Scottish independence referendum (http://www.davidhodson.com/news/scotland-decides-impact-of-independence-on-anglo-scottish-families-and-family-law), England and Scotland are very different family law jurisdictions. Scotland is much more civil law with significant differences on spousal maintenance, marital agreements, cohabitation and court process. Certainly we are all part of the UK for EU purposes. But there are separate courts and separate central authorities. As Rachel Kelsey of Edinburgh has reminded me, the EU Maintenance Regulation applies between UK countries although Brussels II does not.

So the relationship between England, and indeed the other countries in the UK, and Scotland will be a real feature of national and political life over the coming years of this Parliament but probably not a distinctive feature affecting family law

Divorce financial provision law

UK governments have shown themselves distinctly unwilling to get involved in family law legislation. After the unhappy experience in 1996 with divorce reform for the introduction of no-fault divorce, they have mostly run scared of any new legislative reforms.

But in February 2014 the Law Commission produced a report recommending legislation for binding marital agreements with qualifying conditions. Case law (Radmacher) has already brought us close to this position. But legislation will provide certainty which will significantly assist international families and lawyers from abroad advising clients in respect of marital agreements where clients may subsequently come to the UK or have UK connections. It must be hoped that legislative time will be found to implement the Law Commission proposals.

It was regrettable that at the same time the Law Commission did not recommend legislation to deal with needs, such a crucial feature in divorce financial settlements in England, and categorisation of assets between marital and non-marital. I understand a judicial working party set up to make recommendations for the identification and characterisation of needs should report this summer. Hopefully, without being legislation, it can nevertheless have a strongly normative effect and provide certainty and clarity.

But it is the categorisation of assets which is arguably even more important. So many of my firm’s finance cases now seem to revolve around whether an asset is marital and should be automatically shared equally, unless needs determines otherwise, or whether an asset is non-marital and not shared at all, again subject to needs. It is taking up much court time and significant legal costs. The uncertainty in our law is a huge frustration for international families and their lawyers abroad who are, almost without exception, in countries where this categorisation is certain and predictable. This is both civil law and other common law countries. Is it too much to hope that the government will legislate even without specific Law Commission recommendations? It would produce much greater certainty for our law and for our international families

It was in 1963 that Harold Wilson characterised his future government with the so-called white heat of technological innovation. Although England is unable to compete with the Californian Silicon Valley and other initiatives in some other parts of the world, it is undoubtedly one of the world leaders in creativity in the digital medium. What could be done in the next 5 years of this government to bring this creativity into more walks of life? Specifically what could be done within family law?

It seems inevitable that there will be more cuts to the family justice system, already shaved to the bone and probably beyond. The indulgence, as some see it, of expensive litigation deriving from discretion, specifically uncertainty and lack of clarity in the law and expectations of outcomes, cannot survive. Other jurisdictions have creatively tackled financial outcomes on relationship breakdown through digital means including tariffs and formulae. The Law Commission gave an amber light to these issues. It must be one way forward. We can learn from other countries and it will benefit international families litigating here

And finally … What can be said without any doubt is that there will be more and other developments over these next few years affecting international family law and international families. These are exciting times but also very challenging.

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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