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The views set out in this post are those of the author alone and are made in a personal capacity. They do not represent the official view either of the Head of International Family Justice or the Judicial Office for England & Wales.
27 March 2013
The Hon. Cobb J
For Judicial Collaboration, Cobb J's judgment is highly significant. For the first time, an English court has judicially endorsed the use and benefits of direct judicial communication within a context of Article 15 of Brussels II Revised (BIIR). Given the similarity between Art 15 of BIIR, and Art 8 and 9 of the 1996 Hague Convention on Child Protection, it is likely that this judgment is likely to be influential in Art 8/9 cases.
Article 15 concerns transfers of jurisdiction between Member States (Denmark excepted). It provides a mechanism whereby the courts of a Member State may request, either of their own motion or on application from a party, that the case be transferred to the courts of another jurisdiction. The procedure can apply the other way, so that a court of one member state may request that of another member state to transfer jurisdiction of a case to it. The Article applies just as much to public law proceedings, as it does to private law proceedings (cf. Mostyn J's judgment Re T (A Child: Article 15 of BIIR)  EWHC 521).
Until the Cobb J judgment, reliance upon Judicial Collaboration in respect of Art 15 derived from the June 2005 Practice Guide, produced by the European Commission, to BIIR (Part III, para 3) - http://www.hcch.net/upload/wop/abduct2011pd04e.pdf. This encourages communication between courts in an Art 15 transfer situation:
Article 15 states that the courts shall co-operate, either directly or through the central authorities, for the purpose of the transfer. It may be particularly useful for the judges concerned to communicate to assess whether in the specific case the requirements for a transfer are fulfilled, in particular if it would be in the best interests of the child. If the two judges speak and/or understand a common language, they should not hesitate to contact each other directly by telephone or e-mail. Other forms of modern technology may be useful, eg conference calls. If there are language problems, the judges may rely on interpreters. The central authorities will also be able to assist the judges.
The judges will wish to keep the parties and their legal advisers informed, but it will be a matter for the judges to decide for themselves what procedures and safeguards are appropriate in the context of the particular case.
The courts may also co-operate through the central authorities.
Similar comments are made in respect of Art 8 and Art 9 Hague Convention 1996 in Part 5 of the Revised Draft Practical Handbook on the operation of the 1996 Hague Convention (May 2011) - http://www.hcch.net/upload/wop/abduct2011pd04e.pdf
Brief facts of LM
A pregnant mother travelled from England to Ireland to have her baby. Her three older children had been subject to care proceedings in England, such proceedings having been initiated by X County Council. On giving birth, the baby became subject to Irish care proceedings. The Mother moved back to England, specifically within the regional jurisdiction of Y County Council. The Mother issued applications both in Ireland and England for a transfer of the public law proceedings in respect of the bay, from Ireland to England, pursuant to Art 15 BIIR.
Amongst other things, Cobb J was required to determine:
Cobb J (cf. paras -) directed the Office of the Head of International Family Justice to assist him in facilitating direct judicial communication with the Irish Judge who had made the Art 15 request. For factual reasons, the actual communication never had to take place.
For Judicial Collaboration, the importance of Cobb J's judgment lies in paragraph :
‘It is unfortunate that this request for transfer has not been determined more swiftly. I recognise that the mother herself made individual efforts to accelerate the process. Where an Art 15 request is made, it would be helpful, in my judgment, for the requesting State to communicate such a request at once through the offices of the International Judicial Network; further or alternatively, the court in the requesting State should invite one of the parties in that case (in a public law matter, the public authority, I suggest) to drive along the request, and seek directions for the judicial determination of such a request, in the requested State. These routes may prove to be more effective, and speedy, than the alternative of communicating the request through the Central Authorities designated by BIIR'
As the 2012 Annual Report of the Office of the Head of International Family Justice makes clear (at page ), Judicial Collaboration ‘can reduce delay, reduce financial costs to litigants and to individual States and can reduce the emotional distress that can often be heightened in such cases'. Within the Art 15 context, Cobb J's judgment vindicates this and highlights that, Judicial Collaboration can and, in appropriate cases, should be used to help move a case along.
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