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The Work of the Head of International Family Law

Lord Justice Thorpe gives an insight to his work as Head of International Family Law.

Lord Justice Thorpe

The post of Head of International Family Law was created by the Lord Chief Justice, then Lord Woolf, and the Lord Chancellor in January 2005. The creation recognised the steady and continuing growth of the importance of International Family Law. The origins of this growth are almost obvious. First there is the mobility of the peoples of the world. There is no capital that cannot be reached from London in a day's journey. Within the European region the demolition of protectionist rules has led to the rapid development of cheap flights to innumerable regional airports. A flight to Eastern Europe can be had for less than the price than a journey by rail in England. The rapid development of the European Union has dismantled most frontier barriers and afforded rights of residence and work universally throughout the region. Second there is the equally extraordinary development of communications. The sophistication of mobile telephone communication puts individuals in audio and even video contact with those in distant lands. No less immediate are the communications made possible by the internet. From these two factors flows the inevitable third: the development of relationships, sexual, emotional and familial, that in earlier ages would have been confined within parish boundaries. Fourth relationships which in an earlier age were almost indissoluble are now conventionally accepted to be dependent upon the will, or even the whim, of their creators. Fifth moral scruples no longer much restrain self help, enabling the self regarded victim to utilise the abundant travel facilities to repatriate with the offspring of the dissolved union.

The old territory of private international law could not meet the resulting legal challenges. International instruments became essential to contain the risk of competing proceedings and conflicting orders in separate jurisdictions. The 1980 Hague Abduction Convention has proved a phenomenal success. Despite the absence of an international court to construe its measures and despite the fact that evolutionary development of its terms is extremely difficult to achieve, it has not only proved its utility over a generation of operation but continues to attract new accessions by states anxious to enjoy its benefits. Of equal significance for us is the resolute entry of EU law makers into the field of family law. The commencement of the Regulation Brussels II Revised is not to be regarded as the fulfilment of their objective but the confident commencement of a continuing process.

The impact of these factors on the jurisdictions of the world will be very variable, however it is unlikely that the impact on our jurisdiction will be exceeded elsewhere. As a consequence of our Imperial past we have spread our language and our common law to the far ends of the earth. Our peoples have emigrated widely over the last two centuries and more. Equally we have been liberal in our receipt of immigrants both historically and in recent years. London, which at the beginning of my life was a city largely of Londoners has become a city of residents largely born elsewhere. This is a continuing process of exodus and influx. The Government's reaction to the accession of the ten new Member States of the EU was to adopt an open door policy to those seeking higher wages and a better livelihood than they had been able to gain in their homeland. Our airport is one of the principal hubs of international air travel. The inevitable consequence is an increasing percentage of family proceedings, with an international dimension, whether focused on children or property. In London there are family lawyers, solicitors, juniors and QCs, who only do cases with an international dimension. Although there is not such a degree of specialisation within the judiciary, the more complex trials will be listed before one of a small band to whose jurisdiction much of the work is limited.

The need for judicial specialisation in international family law was first recognised in the creation of the Hague network of Liaison Judges. This I proposed at the first Judicial Conference convened by the Permanent Bureau in 1998 and I have actively promoted its gradual extension ever since. The creation of the post of Head of International Family Law is the logical development. Internally it focuses the attention of practitioners and judges on the availability of a judicial resource to which they can turn when they encounter difficulties in the case. They will also be aware of their responsibility to report orders made in Anglo/Pakistani cases covered by either the letter or the spirit of the Protocol. But the real work of the Head of International Family Law lies in external fields. He is externally the visible representative of our Family Justice System. He has the opportunity to make diplomatic overtures to the judges of other jurisdictions with which we have a high volume of cross-border family litigation. He has the opportunity to initiate international judicial conferences, on a bilateral but more often multi-lateral basis, to promote better understanding and cooperation between the assembled jurisdictions. Effective cooperation is usually based on personal relationships that generate confidence and trust in the others professional ability and commitment.

Apart from these opportunities for pro-activism he must be reactive to invitations and opportunities from other jurisdictions or from international institutions. In the field of family law The Hague Permanent Bureau is the principal global institution. For some years the Bureau has been working on bridge building between Islamic and non-Islamic states. This jurisdiction is privileged to be an automatic invitee to these conferences. For policy and every other consideration it is important that we should act positively not only with financial support but by sending a strong delegation. Similarly the Permanent Bureau convenes regular Commissions to consider the operation of major conventions. Since 1998 the judges of the world have been increasingly important contributors to the success of these Commissions. Apart from the conduct of the agenda the Commissions provide an opportunity for the specialist judges of the world to congregate, to get to know each other better, to meet a newcomer whose arrival marks the retirement of a predecessor, and to discuss inter-jurisdictional difficulties that would not in themselves justify the meeting. The jurisdictions which support the work of the Permanent Bureau judicially are revealed and their contribution valued. Equally revealed are those jurisdictions who do not. Our jurisdiction has a high reputation for judicial specialisation and expertise in international family law and for consistent contribution at the international forum. This may be a proportionately small credit but it is one that I hope we will never diminish.

Within our EU region we have since 2002 the European Judicial Network. With the advent of the Regulation Brussels II Revised in March 2005, the Commission has recognised the importance direct judicial communication and therefore the need to adapt the EJN to cater for cross-border family proceedings. Accordingly Brussels' meetings of the EJN are now periodically constituted with a purely family law agenda. Again it is of the greatest importance that our jurisdiction should be represented at such a meeting by specialist judges who are able to make a high quality contribution to the debate.

At the end of fifteen months in my new post it is possible to make some assessment of the nature and volume of the resulting responsibilities. In general terms I would assess that approximately thirty-five percent of my work life is given to International Family Law. To illustrate more specifically what I mean I record the events of the last February, admittedly the busiest month for international work yet experienced.

Our High Commission in Dhaka arranged for the Chief Justice of Bangladesh to visit London on 7th - 9th February leading a small judicial delegation. The delegations priority was to explore at a judicial level the possibility of a working agreement for the management of cross-border child disputes. An overture had been made by the Foreign and Commonwealth Office in March 2005 when they invited Dame Elizabeth Butler-Sloss to make an official visit to Dhaka. Since her retirement I had reaffirmed our readiness for discussions in London.

The morning of 9th February was devoted to open discussions flowing from a carefully structured agenda settled by Khatun Sapnara, who also ensured that our delegation included prominent barristers, solicitors academics and representatives of N.G.O.s with particular experience of and commitment to the resolution of disputes involving children of families of Bangladeshi origin. Without attempting a detailed summary, I only emphasise the Chief Justices' positive approach. His clear message was that he would wish to host a return visit in 2007 during the course of which he would anticipate the completion of an agreement between our jurisdictions.

On the 11th February the Italian Ministry of Justice (supported by the French and Belgian Ministries) convened a three day conference for European Central Authorities to consider the early operation of the Brussels II Revised Regulation. The conference was sponsored and funded by the European Union and Monika Ekstrom from the Commission moderated at the plenary sessions, offering an authoritative but non-binding opinion from the Commission on difficulties in construction and implementation of the Regulation. Most of the difficulties raised were anticipatory, since none of the eighteen Central Authorities attending had yet had much experience of specific cases. There was a general acknowledgement that the proper construction of habitual residence was the most controversial issue and one which must await a decision of the European Court of Justice. A number of jurisdictions raised the difficulties created by the poor performance of at least one European Central Authority not represented at the conference. It was reassuring to hear Monika Ekstrom say that, if specific instances of bad practice were demonstrated to the Commission, diplomatic pressure would be brought to bear on the offender.

My invitation from the conference was to present a paper on collaboration between judges and on the ways in which judges should complement communication between Central Authorities. The seminal texts for my paper were Articles 11 and 15 of the Regulation and Chapter X of the Good Practice Guide. I was also able to report recent progress in the development of the European Judicial Network to meet the special needs of international family proceedings. Recent appointments of Liaison Judges in Germany and the Netherlands are particularly significant as are the positive responses from a number of European Ministers of Justice to the overture from Baroness Ashton during the United Kingdom Presidency. It is important that Central Authorities should be well informed of these developments in order to understand that the role of the judge in cross-border communication is complementary and not competitive.

The Consular Division of the Foreign and Commonwealth Office hosted a visit from the Chief Justice of Pakistan accompanied by judges of the Supreme Court of Pakistan and of Azad Jammu Kashmir as well as the Registrar of the Supreme Court and the Deputy Attorney General between 13th – 15th February.

On the morning of the 13th the Chief Justice was received by our Lord Chief Justice and greetings were exchanged publicly in the Lord Chief Justice's court. We then proceeded to business adopting the formula that proved so successful at our meeting with the Bangladeshi Judiciary, although our agenda focussed not so much on future possibilities but on three years of experience of the operation of the Protocol. Its utility was obvious from the statistics: well over fifty chronicled cases involving many more children had been exported to the Liaison judge in Islamabad with a beneficial outcome in the large majority. The number of requests for assistance to me in London was almost minimal as might have been anticipated given the movement patterns of English families of Pakistani origin. Our delegation was a UK delegation, Lady Smith representing Scotland and Gillen J representing Northern Ireland.

However the success story was clouded by the Chief Justice's anxiety that a head-on challenge to the constitutional validity of the Protocol would some day be mounted. If such a challenge were to succeed the consequences would be dire. To elevate the Protocol to an inter-governmental agreement was no answer. Only legislative adoption in Pakistan would guarantee the legitimacy of the Protocol.

This jurisdiction, which has been the principal beneficiary of the operation of the Protocol, does not share this sense of insecurity. The Protocol was concluded by the then President with the concurrence of the Lord Chancellor. Its underling principles are only the principles that underlie our statutory and inherent jurisdictions in the protection of children.

On the second day the delegation observed proceedings in the Family Division received by four of the Judges sitting that week in London.

On the third day the delegation visited Leeds where they were received by a leading firm of solicitors, met members of the Pakistani community and had discussions with the President (then sitting in Leeds) over tea at the Judges' lodgings. At the conclusion of the visit Mr Justice Khokhar and I, as Liaison Judges, signed an agreement reflecting our deliberations. The agreement is constructive and underlines the continuing development of the judicial relationship between Pakistan and the United Kingdom.

On the 12th February, the Commission arranged a meeting of the European Judicial Network in Brussels to discuss two important family law topics: first how should the voice of the child be heard in family proceedings, second how should judges communicate and collaborate in cross-border family proceedings.

The UK had been invited to be one of the two lead speakers on each of the main agenda items. On the first, hearing the voice of the child, as well as reporting our practice, I focused on the 19th recital to the Regulation which establishes the margin of appreciation allowing member states to adhere to pre-existing practices. The ensuing debate established the diversity of those practices and revealed aspirations to achieve conformity, providing of course that the practice to which the speaker was accustomed became the norm. Interventions from the presiding officials from the Commission revealed how vital to understanding is first hand judicial experience of the role of the child in the court process.

Germany and the United Kingdom had been invited to make the opening statements on the second issue. Judge Carl for Germany and I agreed that I would offer the historical introduction, report the recent appointments of specialist family judges to the EJN, and deal carefully with necessary safeguards to ensure that inappropriate communications between judges did not contaminate the proceedings by a breach of the rules of natural justice. Judge Carl would then follow with his personal experience of direct contact with special reference to specific case illustrations.

Between us I believe we made a powerful case for judicial activism.

At the shortest notice from the DCA International Relations Branch I learned of the visit of a delegation of Algerian Judges invited by the Lord Chancellor for February 20 - 23. The program suggested that their priority was the criminal justice system but a brief visit to the Family Division was mooted during the afternoon of 21 February. By arrangement with the Senior Master I was able to secure an extended exchange following on from his talk on enforcement of civil judgments. Fortunately I was able to assemble a representative group of judges and practitioners to discuss first the possibility of a judicial agreement to regulate jurisdiction and enforcement in Anglo-Algerian family proceedings and second our respective approaches to the forthcoming Malta conference in March. We preceded these points by reciprocal explanation of our family justice systems. Our Algerian colleagues emphasised that their family law was codified and applied in civil courts, albeit drawn from the writings of the Koran. The leader of the delegation Hamed-Abdelouahab, confirmed that Algeria had accepted the invitation to the Malta conference and would send three representatives. Given the lack of any preparation on either side these exchanges were as fruitful as might have been hoped.

I hope my February diary illustrates my job description. To these responsibilities described above I would only add two others. First my specialist expertise and experience is available to government whose ultimate responsibility for the development of international family is dependent on much wider considerations. For instance should UK opt in to the negotiation of a proposed E.U. Regulation? The implications for international family proceedings is only one of the important factors that influences the decision. Second it is important to disseminate to judges and practitioners information about impending developments and the outcome of international conferences. Channels of dissemination are informal – the quarterly meetings of the International Committee, the Judges' Newsletter published by The Hague Permanent Bureau and the International Family Law Journal help to spread the word.