DAVID HODSON Partner, The International Family Law Group LLP, London.
English accredited family law solicitor, mediator, arbitrator, Deputy
District Judge of the Principal Registry of the Family Division, Australian qualified solicitor, barrister and mediator.
David acts in complex family law cases, often with an international element. He is a English accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and an Australian 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 (Family Law). David writes a weekly column for Family Law's online newsletter (Newswatch) on international aspects of family law. He has spoken at many conferences in England and abroad.
He has sat on many professional committees in respect of family law reform and good practice. He is chair of the Family Law Review Group of the Centre for Social Justice which produced a ground breaking set of major reforms of all aspects of family law.
Family Law's commentator of the year award 2011
He can be contacted on dh@davidhodson.com.
With specialist contributions by:
Helen Blackburn Partner, The International Family Law Group LLP
Nadine Finch Barrister, Garden Court Chambers
Louisa Ghevaert Partner, Porter Dodson Solicitors & Advisors
Katharine Landells Solicitor, Withers LLP
Louise McCallum Barrister, Zenith Chambers
Nazia Rashid Partner, Docklands Solicitors LLP
David Salter Joint National Head of Family Law, Mills & Reeve LLP
Ann Thomas Managing Partner, The International Family Law Group LLP
Carolynn Usher Partner, The International Family Law Group LLP
David Hodson on International Family Law
A cool summer for international family law
If it was going to be the coldest summer for many years, then perhaps not the worst time to spend it indoors with the Red book! 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, e.g. 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 e.g. 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 e.g. 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
(c) 1 September 2011
To read more articles by David please click here to visit the Family Law Newswatch website
- Introduction
- Practice and Case Management
- Recognition of Foreign Marriages and Divorces
- Stays in the UK, Europe and Worldwide
- Domicile, Residence and Nationality
- International Injunctions and Protective Orders
- Enforcement Orders and EU Maintenance Regulations
- Financial Provision after an Overseas Divorce: MFPA 1984, Part III
- Pensions
- Trusts
- Marital Agreements
- Service
- Affidavits and Sworn Documents Abroad
- Evidence
- Cross-border Alternative Dispute Resolution (ADR)
- Legal Aid
- International Children Issues
- Applications to Take Children Abroad
- Child Abduction
- International Adoption
- Surrogacy
- Forced Marriages
- Distinctive Aspects of Islamic Law
- Immigration Issues
- Same-sex and Cohabitation Relationships
- Future Developments
Includes over 35 source materials such as Family Procedure Rules 2010/Practice Directions, Maintenance Regulation 4/2009 and the Rome III – EU 2010 (enhanced co-operation on conflicts of law) 1259/2010. For the full list of source materials please see the Source Materials tab
Click here to see a PDF of the full contents
A Practical Guide to International Family Law, the first edition of this book, was published by Jordans in late spring 2008. As its name made clear, it was explicitly intended as a practical guide for practitioners having to deal with the international aspects of family law cases which were now affecting all practices in all communities across England and Wales. It provided information for the specialist family lawyer without much prior knowledge of international work as well as the increasing number of lawyers with international experience. We were delighted at the reception and success of the first publication.
Whilst some still considered international law an esoteric area of family law practice, many solicitors, barristers and judges now appreciated its impact and importance. This awareness has only increased in the 3 years since the book was published. But international family law is very fast changing. Reforms from Brussels and The Hague have continued at speed. Therefore in late 2010 this second edition was planned, appropriately renamed.
As fundamental as any new law from abroad was the arrival, in April 2011, of the new Family Procedure Rules 2010. They have introduced a complete new procedural code, covering the High Court, County Court and Family Proceedings Court. Whilst some of the old rules have been transported directly into the new rules, many are very different. Crucially, the new rules showed awareness of the international elements now within family law with several Parts and Practice Directions specifically dealing with international aspects. It was clear a second edition was needed to cover the new rules.
The EU has not slowed down in its law reform programme. In June 2011, Brussels I which governed maintenance obligations, with maintenance meaning needs, was entirely replaced for family law purposes by the EU Maintenance Regulation. This is on any basis an exceptionally complex piece of legislation yet very important internationally. There are new bases of jurisdiction, priority to agreements, separation between some countries dealing with needs claims and others dealing with property sharing, different procedures for enforcement between applicable law and non-applicable law countries and the much-loathed first to issue from Brussels II. It has a wide-ranging impact on jurisdiction of claims for financial orders and financial remedies.
The Supreme Court has also made its contribution. Agbaje was the first Part III case to reach the Supreme Court since the legislation in 1984 allowing an application for financial provision in England and Wales after a foreign divorce. Yet the international family law landscape has changed dramatically since the mid-1980s. It was an excellent judgment in many ways, allowing opportunities for just and fair outcomes for those spouses having inadequate provision abroad. Yet it is internationally confrontational in that the English courts were in effect acting as the Court of Appeal on decisions of other competent family courts abroad. Radmacher was an international marital agreement by a couple from abroad in circumstances where the agreement was binding in their own countries yet being implemented in a jurisdiction, England, which had hitherto set its face against any possibility of being bound or highly influenced by agreements. The Supreme Court recognised the very different cultural circumstances in which marital agreements are entered into abroad. It is one of the fault lines between common law and civil law, with English lawyers putting the greater emphasis on overcoming prejudice and duress to women, the financially weaker party, of these agreements by independent legal advice and disclosure. The Supreme Court has handed down several fundamental judgments in the international context regarding jurisdiction in children cases.
The battle lines have been primarily in respect of the attempts by the EU to impose applicable law on the UK, and some other EU countries. Very belatedly and most reluctantly, Brussels has seemed to accept the major disadvantages for families in the first to issue, lis pendens, of Brussels II on divorce, discouraging mediation, reconciliation and negotiation in advance of issuing proceedings first. Their answer is applicable law: it does not matter where proceedings are issued first if it is known which law will be applied. This of course ignores the well-known fact that a particular law is often applied very differently in foreign countries than it is in its home country. But with the civil law centric policy of Brussels, they tried to introduce applicable law in draft legislation known as Rome III, which was resisted by the UK and so most EU countries have entered into their own self-contained law in respect of applicable law. But when Brussels I in respect of maintenance obligations was being replaced, the EU tried again to impose applicable law and it was only after much political positioning and negotiations that a compromise was reached. These issues have been to the fore since the first edition and will continue.
With so many international families, movement of parents after parental separation has increased and with it the requests to relocate with the child. But English case-law has been dogged in its determination to give the emphasis to the primary carer in Payne and subsequent cases, rather than a more balanced test focusing on the impact on the child of the proposed move. Very belatedly however the tide is turning with the Court of Appeal decision in MK v CK in spring 2011 putting the emphasis back again on to the welfare of the child.
Areas of practice at the time of the first edition which were only then in their relative genesis have increased in importance. England has led the way in the fight against forced marriages. Legislation, case-law and government units have worked through both legal action and education to eradicate this practice. English law has been significant in its worldwide reach. England has also led the way in legislation in respect of same-sex relationships with recognition of foreign same-sex registered relationships, even if the foreign relationship is of a different form and status than in England, with opportunities for financial claims after a foreign dissolution and dissolution here of a foreign registered partnership. This last aspect has been controversial because on dissolution one party is entitled to the claims as if on dissolution of civil partnership in England even if those claims were not available on the dissolution abroad. Forum shopping is equally beneficial in the same-sex community as on divorce. Surrogacy has increased internationally with a good number of putative parents from England seeking assistance abroad and with some countries specifically encouraging surrogacy arrangements. In a series of recent cases since the first edition, the English court has had to balance the best interests of the child already born with disapproval of commercial surrogacy for profit.
Procedure is sometimes as important as substantive law. Despite criticisms of the overpowering approach of Brussels, good developments have arrived from the EU in respect of service, evidence abroad, legal aid and other areas.
In addition to these changes, case-law has continued to develop, balancing with colossal difficulty the retention of traditional English family law concepts, laws and practices with endeavouring as much as possible to recognise, engage and draw us closer to our civil law neighbours. It has not been easy. Knowing where to draw the line in the sand has required much wisdom, caution and sensitivity.
Moreover whilst so much of the clamour and din of law reform has come from within Europe, England still has incredibly strong family law connections across the world, particularly common law but also other jurisdictions. It is too easy in the European debate to lose sight of these valuable, historic and recent ties. We have massive family law traffic with the US, former and existing Commonwealth countries as well as areas such as the Middle East, Russia and the Far East. Just as the UK now finds itself economically and politically struggling to decide whether its future lies aligned very largely within Europe or as a continuing world player with alliances not only with Europe but elsewhere in the world, so English family law is in a similar position. Because of the free movement of peoples across Europe, we have very many family law cases with other EU states. But also because we are probably the world’s most cosmopolitan and multinational nation, with international families spread across the whole country rather than just a few major cities, our family law cases spread far and wide across the globe. We must never lose sight of our very diverse international ties and close family connections in our development of our law.
There has been a further dramatic development since the first edition. No longer are solicitors, barristers and judges conducting cases on a generalised knowledge of international family law principles. They are now arguing in court, through correspondence and in the mediation room the actual wording and precise content of international Regulations and Conventions. It was realised that there was no one source of the primary international family law materials in one place. Yet this is what practitioners needed. It was simply unfeasible to include this additional material in the Red Book. Hence the decision to include it in this publication, ‘The Grey Book’. Appendix 4 onwards contains domestic legislation, legislation from the EU and The Hague and other important material. It is now available in one place for the practitioner. It is shown as e.g. see Appendix 7. Clients do not present with a discrete narrow legal problem. Their cases crossover into other aspects of international family law. Therefore cross-referencing is extensive throughout the book to assist practitioners e.g. see 9.4.2
In the first edition I had the considerable benefit of three contributors on very specialist areas, Katharine Landells on same-sex relationships, Nazia Rashid on Islamic aspects and Nadine Finch on immigration issues. I have been very grateful to them for continuing their contribution in this second edition. I asked specialists in other areas to contribute into the second edition. I am very grateful to the additional contributors, building on the content in the first edition, namely David Salter on marital agreements and on pensions, Helen Blackburn on international adoption and on legal aid, Ann Thomas on child relocation and on general international children issues, Louise McCallum on forced marriages, Louisa Ghevaert on surrogacy and Carolynn Usher on child abduction. The expertise and specialisation of the contributors has added hugely to this publication.
I have been grateful to others who have commented on and assisted in respect of specific chapters including Helen Blackburn (general international children issues), (surrogacy), Tim Amos QC, Gavin Smith and Melanie Barnes (EU Maintenance Regulation), Denise Carter OBE (mediation) and Hayley Trim of Jordans on a variety of topics where she has been so helpful. I am particularly grateful to my colleagues at iFLG who have undertaken research including Hannah Budd, Jenny Green, Lucy Loizou, Mandeep Gill, Carmel Brown, Katie Harris and Michael Allum. I have also been grateful to Professor Patrick Parkinson and Justin Dowd and others at Watts McCray, our associate firm in Australia, for their insights, information and input from an Australian perspective. I have been honoured by Professor Nigel Lowe by writing the Foreword.
I have been exceedingly grateful for the support throughout of my editor at Jordans, Greg Woodgate along with Kate Hather. I am very grateful to Hugh Logue who invited me to write a weekly opinion piece for Family Law Newswatch on international family law matters which has made me keep up to date. Supremely, I have continued in the debt of Liz Walsh, the stalwart of family law reporting and editing, in this area of our work.
Book writing is a solitary experience yet for a lawyer in private practice having to continue with client work and other professional commitments, it can only be teamwork. Therefore I am so very grateful to all of my colleagues at The International Family Law Group LLP (iFLG). My team, our associate solicitor, Hannah Budd, and my PA, Catherine Evans, have been superb and very patient and understanding.
When Ann and I set up the practice in April 2007 with only four people we were certain there was a fundamental need in the market for a law practice primarily looking after the needs of international families and their children. Yet we did not anticipate the extent of the demand: iFLG now has over 20 people which is testimony to the growth of this area of work. Most of all I am grateful to Ann for all her support and encouragement throughout this process in the writing and editing of the second edition. I came back from our honeymoon to plunge immediately into the depths of recognition of foreign marriages, international surrogacy and piercing the veil of offshore trusts. I could not have accomplished it without her and I am exceedingly grateful.
