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International Family Law

The leading authority on international family law

03 JAN 2013

December 2012

Edward Bennett

Barrister and General Editor

All judicial collaboration in international family cases should be facilitated through the Office of the Head of International Family Justice. This blog post discussed the procedure for making a request for judicial collaboration. All requests are considered on a case by case basis, and with reference to the diplomatic context of the jurisdiction in respect of which the assistance is sought.

Judicial collaboration is intended, as its name alludes, to be intra-judicial. It would be too early to make a request for collaboration if a judge hadn't yet got involved in a case. Wherever there are circumstances where judicial collaboration might be able to help, it should be initiated whatever stage the litigation is at, providing of course a judge is willing and able to give assent to it. Either the judge (with the knowledge of practitioners) or practitioners (with the assent of the judge) can make the approach to the Office. There are no examples to date, of proceedings being commenced with a view solely to initiate judicial collaboration and any such moves to attempt it, one would hope, would be strongly discouraged.

It is helpful, but not essential for a reference to the Office to be made in a preamble to any order made at a hearing. Those involved with drawing up such orders should be mindful of the diplomatic necessity to not demand anything of a foreign court, but to respectfully request assistance of a kind that realistically is be able to be provided. All requests should be accompanied by: (a) a (preferably agreed) concise agreed case summary; and (b) a set of questions to be put to the network judge which: (i) ask for information of a practical and emphatically non-legal nature; and (ii) are in no way phrased in anything other than a neutral, non-tactical way.

The following words of Thorpe LJ in Re E [2011] EWCA Civ 361 at para [89] are worth remembering when waiting for a response from a Network Judge:

‘Practitioners need to understand that only this jurisdiction [England & Wales] and the Netherlands maintain offices for International Family Justice fully resourced to provide both an internal and external service. In other jurisdictions the Network Judge is unlikely to have any administrative, let alone legal support. Equally the Network Judge is more likely that not to have a case load unrelieved to reflect the calls of the Network function.'

Direct judicial communication is not intended as a tool for practitioners to: (a) receive legal advice by the back door; (b) avoid having to seek expert evidence as to foreign law or procedure in circumstances where it is appropriate; or (c) use as a substitute for their own legal research into English family law and practice. Likewise it would be a grave abuse of process to attempt to use network judges as a means of making submissions to a foreign court, thus short-circuiting the relevant procedural rules for such matters in the jurisdiction concerned. This is not to say that sealed orders and judgments cannot be transmitted to judges in other jurisdictions quickly via network judges in certain circumstances, which is relatively common.

Salient advice was again provided by Thorpe LJ in Re E:

‘90. It is important that requests for information or assistance should never be extravagant and should, ideally, be passed through the International Office to ensure that any questions are concise and relevant. Judgments in that area are better taken by the office which has the accumulated experience of good practice.

91. Since Hague proceedings in our jurisdiction are often hard fought in the adversarial sense, it is not uncommon for one counsel or the other to frame questions for judicial response that he believes will enhance his case. This consideration strengthens the need for objective editing.

92. In this case, on 25 November, Judge Salvaag answered five questions that had been transmitted to her by the Office. Her responses were detailed and thorough running to three and a half typed sheets of A4. Pauffley J's clerk sent them to counsel at 15:20 on that day and at 16:25 Mr Williams asked the judge to transmit further questions arising out of Judge Selvaag's answers to questions one and four. On the following morning, Pauffley J transmitted the additional questions to the Office lawyer who, on my instructions, declined to trouble Judge Selvaag further. That afternoon the clerk to Pauffley J informed the Bar that the judge was content with the decision that Judge Selvaag should not be troubled further.'

Office news

  • From 23 October-7 December 2012, the Office dealt with 34 requests covering the following jurisdictions: Spain, Italy, Slovakia, Nigeria, Germany, Kuwait, Poland, Czech Republic, France, Sweden, Belgium, Guyana, Colombia, Turkey, Cameroon, Morocco, Philippines, Pakistan, Brazil, Russia, Cyprus, Democratic Republic of Congo and Iraq.
  • The Office has communicated its first request for judicial collaboration in relation to the Hague Convention 1996.
  • In 2013, the International Hague Network of Judges will celebrate its 15th Anniversary. Looking back on the Network's history and what it has achieved, this is a milestone of substantial significance. Looking to the future, the Network will meet for the first time in full, at a Conference in England in July 2013.
  • The Office is compiling an index of cases where judicial collaboration has been cited in an English judgment. So far, from 1998-2012, as at the date of writing this blog post, 45 cases have been identified. Practitioners are encouraged to let the Office know of any that they are aware of, or have worked on.
  • The International Family Law Committee, with the approval of the Head of International Family Justice, will shortly be publishing a Practice Guide to the 1996 Hague Convention. The principal author is Professor Peter McEleavy, Professor of International Family Law, University of Dundee who has been closely involved in the implementation/development of the Convention and the preparation of guidance on its operation and effect. Mr Justice Holman, acting President of the Family Division, has signified his consent to the Practice Guide being published in this way.
  • Over the last few months, the Office has had to deal with several matters concerning transfers of jurisdiction pursuant to A.15 Brussels II bis. This has raised a number of legal and practical issues. Consequently, Edward Bennett and Senior District Judge Philip Waller, CBE are working on a short unofficial practical guide to A.15 to be published in the New Year. It is intended that the guide will additionally cover A.8 Hague Convention 1996.
  • In his private capacity, Lord Justice Thorpe has written an endorsement for a new book, published in November 2012, on International Adoption, written by R.Cabeza, A.Bhutta and J.Braier. Mrs Justice Theis wrote the forward to the book.
  • Dr Rob George of Oxford University continues to be supported by the Office in his collection of relocation orders and judgments. If any practitioner wishes to send Dr George such an order or judgment, please contact Edward Bennett.
  • Edward Bennett will be publishing an article entitled ‘Resolving family disputes in a globalised world: the role of judicial diplomacy' in the December 12/January 13 issue of the Diplomat Magazine.
  • An unofficial working party has been formed to consider the international development of relocation law with particular regard to the jurisdictions of England & Wales and New Zealand. The membership of the group consists of Lord Justice Thorpe (Chair), Mr Justice Moylan, Prof. Nigel Lowe, Dr. Rob George, Prof. Mark Henaghan, Prof. Marilyn Freeman, Mr Timothy Scott Q.C., Prof. Nicola Taylor and Edward Bennett (Secretary). The group had its first meeting by conference call on 21 November 2012. It is intended that the group's findings will be ready to present at the Centre of Family Law and Practice's Conference in July 2013.
  • In a piece of more light-hearted news, the Office has had in its possession the full bottomed wig and box once belonging to the late Lord Slynn of Hadley, GBE and which, on his elevation to the House of Lords, was subsequently used by Lord Justice Peter Gibson. With the permission of both Miss Helen Tyler, Mistress of the Robes and the Senior Judges' Clerks Manager, the Office took great pleasure in returning the wig to Lord Slynn's family, represented by his nephew.

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