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An Interview with Lord Justice Thorpe

Lord Justice Thorpe talks to David Chaplin, Publisher of Family Law Week, about his work as head of International Family Law and his thoughts on reform of the Matrimonial Causes Act

picture of thorpe lj

Lord Justice Thorpe

I recently had the pleasure of meeting with Lord Justice Thorpe, the Head of International Family Law, to discuss future developments in this area. International work now occupies at least half his judicial time so there was a lot of ground to cover and the recurrent theme was that these issues will continue to have an impact on domestic family law.

Rome III: will it ever happen?
We began on the topic of Rome III and I rather foolishly suggested that, given that the agreement was originally due to come into force on the day before we met, we would soon see it implemented in Europe. Lord Justice Thorpe correctly disabused me of this notion. Although he professed not to be the expert in the progress of any negotiations, it was his understanding that matters had stalled as a good number of the 24 members in the negotiation, particularly Sweden, are not too keen. The Swedish view is that marriage is very much a civil contract and so they do not want to be applying the "sacramental" element of marriage by the back door which could happen under the "applicable law" concept enshrined in the proposed regulation. Recent news reports about such unease bear this out and the reluctance to set pen to paper is understandable as all parties to the negotiation will be bound by the final regulations. I then asked how, given that the English have opted out, we could ever opt in? Theoretically we could opt in once we have seen the final regulation if it looks attractive; which he described as a "have your cake and eat it" approach.

That, of course, begged the question of whether we are ever likely to implement such a regulation. In his view the application of a foreign law in the English courts would be "contrary to long established judicial principles" and he would be against it as "a price too high". While he thought that harmonisation is probably attainable among the Continental European countries, the outlying island jurisdictions, such as England and Ireland with common law heritage, would find it difficult to integrate. He is also concerned that the proposals could bind the UK to apply the laws of states who have a vastly differing concept of marriage and divorce and could even result in the application of Saudi Arabian law.

Immigration: the impact of domestic courts
We moved on to discuss immigration generally, and migrations such as the recent influx of Polish workers: did he think this will have an impact on the domestic courts in the next few years? Interestingly, his view was that many Poles send their money home and that the family unit, while divided geographically, remains tightly united. Consequently, there might not be quite the impact that many would imagine. He went on to add that there had been a similarly significant Polish migration during and after World War II and that did not create any insurmountable problems. The one caveat though is that we have yet to see what effects such population moves will have on return cases under the Hague Convention.

Rush to court
Returning to Rome III, I asked whether our opt-out would prolong the "rush to court" syndrome often raised when discussing transnational divorce. It was his firm view that the fears of the "rush to court" introduced by Brussels II has not really emerged. The super rich who take sophisticated advice from the most well paid lawyers may well seek tactical advantage but overall the idea was overplayed. The EU was being "disingenuous" in using the "rush to court" as a reason for implementing Rome III as it had been rejected as a problem before the implementation of Brussels II.

Harmonisation of matrimonial property in the EU
He then raised the current Green Paper on harmonisation of marital property which is also currently under discussion. Although a formal response had been issued by the Government it was only along the lines of "a substantive response is to follow"; to date no such substantive response has been submitted. I asked why this was and he felt that it had stalled primarily because of a difference of opinion between specialist family and the private international property and trust lawyers. Family lawyers are generally much more apprehensive about changes to the existing regime while the property lawyers are much more amenable to the idea of the marriage as a contract and so can adapt to the continental attitudes to property more easily.

In all these issues he was keen to make the point that the English family justice system must remain positive about moves to harmonise matrimonial regimes in the EU. There are real problems with imposing English outcomes on couples who have only a slender connection with England. The increasingly common example he used was where an executive working for, say, the Societe Generale is posted to England for two years and his wife seeks a divorce after 12 months of residence.

Reform of the Matrimonial Causes Act 1973
At this point I could not resist straying from my original brief of international family law to ask about his thoughts on reform of the Matrimonial Causes Act; should any possible reform take account of the EU proposals on applicable law and matrimonial property? As we all probably know, Lord Justice Thorpe has been vocal in advocating reform of the MCA. He reiterated his preference for a move to a community approach to matrimonial property, with an accompanying move to make other contracts, such as pre-nuptial agreements, enforceable. In that way the default position would be the community of property regime but couples would be able to opt for alternative arrangements by signing a pre-nup or other type of contract. The, perhaps intended, side effect of reform along these lines would be that adoption of any EU harmonisation proposals would become much easier.

Yet, he added, any proposed reform of the MCA has been dropped "like a hot brick" by the Government despite their well publicised intention to tackle the issue way back in 1998. The Money and Property Committee of the Family Justice Council have raised the matter with the Law Commission, who were due to discuss it at a Commissioners meeting in October 2007. Given the silence since then, Lord Justice Thorpe felt there was no reason to suppose that it has been adopted as part of their programme. He also agreed that any reform of the MCA should reflect some of the proposals for reform of cohabitation regime. (Since our meeting, it has been announced that the cohabitation reforms have been put on hold; what effect this might have on reform of the MCA is a moot point.)

The role of the Head of International Family Law
We then turned to the wider ambit of his role as the Head of International Family Law. This work now takes up at least 50% of his time and is his most important function. He went on to highlight some of the forthcoming initiatives that he hopes to see bear fruit in the next two or three years. A key role is completing and consolidating the work of the European Judicial Network. The European Commission and Permanent Bureau are jointly convening a conference to start the work of strengthening ties and increasing the resources of judges worldwide.

Operation of Brussels II Revised
In June this year the EJN members will meet to discuss improvement in the operation of BIIR. Each member state has been asked to table items for discussion and among those submitted by Lord Justice Thorpe are a reconsideration of whether the 6 week timetable is realistic, whether there is a need to hear the child in every case; the use of case management protocols; and what paperwork and documentation should be necessary, and what needs to be transcribed and translated, when a refusal to return is made. He also expects detailed discussion of the public law aspects of Article 55 as these are causing some problems. If the agreed changes are radical or wide-ranging enough they will probably result in a revised Brussels II regulation.

Developments in the wider world
Outside of Europe, Lord Justice Thorpe is involved in a diverse range of initiatives and he described some of the more significant future events. In South Africa he is involved in training a panel of nominated Hague case judges to improve the quality of case management there. Another significant development is that India is expected to pass legislation by the end of 2008 introducing the Hague Convention into domestic law. This is a major responsibility for the English legal professions and India will look to English judges and lawyers to help implement the novel concepts introduced. The vastness and diversity of India makes that task all the more challenging. He also pointed out that there are over 25 million Indians resident around the world so the size of the change is huge. Although abduction cases are currently handled by wardship, this is a major change for international family law. Similar bridge building exercises are also under way with Pakistan and, through the Malta Conference, the Islamic world in general.

With Lord Justice Thorpe obviously so busy, I decided at this point that I had taken up too much of his time but before I left he did highlight another important event coming up. This year will see an inaugural International Family Law Lecture, jointly funded by the FLBA and Resolution. Watch this space for more but in the meantime let us all hope that Lord Justice Thorpe continues to fly the flag for the English family justice system as it adapts to the changes posed by international family law.

David Chaplin, Publisher, Family Law Week