Developing
the family ties that cross continents
By
Lord Justice Thorpe
http://www.timesonline.co.uk/article/0,,27969-2323362,00.html
Times - 22nd
of August 2006
Marital
disputes now span borders. Britain's first head of international family
law speaks about his work
There
are few capitals that cannot be reached from London in a day. Within
Europe, cheap flights to innumerable regional airports can be had for
less than the price of a rail journey in England. The rapid development
of the European Union has dismantled frontiers and given rights of residence
and work throughout the region. Mobile phones put individuals in audio
and video contact with those in distant lands, and now, too, there is
the internet.
As
a result, relationships — sexual, emotional and familial —
that were once confined within parish boundaries and were almost indissoluble
are conventionally accepted as dependent on the will of their creators.
When relationships break down, the "victim" can easily fly
"home" with his or her children.
The
old territory of private international law could not meet the legal
challenges these changes presented but the 1980 Hague Abduction Convention
has proved a phenomenal success. Despite the lack of an international
court to construe its measures and the evolutionary development of its
terms being extremely difficult, it still attracts new accessions by
states anxious to enjoy its ben efits. Of equal significance for us
is the strong interest that EU law makers show in family law.
The
impact of these factors on different jurisdictions is variable but it
is likely to be greatest on our own. We have spread our language and
our common law to the far ends of the Earth. Our peoples have emigrated
widely. 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 made up of Londoners, has become a city of
residents largely born elsewhere. This is a continuing process of exodus
and influx.
The
inevitable consequence is an increase in family proceedings with an
international dimension, whether focused on children or property. In
London there are family lawyers, so licitors, juniors and QCs who do
only international cases. Although there is not such a degree of specialisation
in the judiciary, more complex trials will be listed before one of a
small band to whose jurisdiction much of the work is limited.
In
recognition of this, my post of head of international family law was
created in January last year by Lord Woolf, then Lord Chief Justice.
Internally, my job is to focus the attention of practitioners and judges
on a judicial resource that they can turn to when they encounter difficulties
in their cases. But the real work of the head of international family
law lies in external fields: he (or she) is the visible representative
of our family justice system. He has the opportunity to make diplomatic
overtures to judges of other jurisdictions with which we have a high
volume of cross-border family litigation. Effective co-operation is
usually based on personal relationships that generate confidence and
trust in the other’s professional ability and commitment.
In
family law, The Hague Permanent Bureau is the principal global institution.
For some years it has been bridge-building between Islamic and non-Islamic
states. It also convenes regular commissions to consider the operation
of major conventions.
Within
the EU we have, since 2002, the European Judicial Network. With the
advent of the Regulation Brussels II, revised in March last year, the
European Commission has recognised the importance of direct judicial
communication and the need to adapt the European Judicial Network (EJN)
to cater for cross-border family proceedings. Accordingly, Brussels’
meetings of the EJN have only family law on the agenda.
After
15 months in post it is possible to make some assessment of the nature
and volume of the job. About 35 per cent of my work is given to international
family law.
My
expertise and experience is also available to government, whose ultimate
responsibility for the development of international family is dependent
on wider considerations, such as whether the UK opt in to the negotiation
of a proposed EU regulation. Secondly, it is important to share information
with judges and practitioners about impending developments and the outcome
of international conferences.
My
experience of my first year in post must include a warning. The appointment
cannot be regarded as resource-neutral, to use the language of government.
In other words, the consequential costs must be recognised and budgeted.
The support I have drawn on has throughout been ad hoc and dependent
on who from time to time has been made available to me. As a result
we are just managing. But future needs must be gauged and budgeted so
that when I retire I can leave my successor a well-managed post.
