«David Hodson Introduction In the second week of November 2006, England and Wales was within a few days of having imposed upon it the concept of ...»
• mirror orders must be adhered to as a crucial function of international judicial comity, with a referral back to the home court on issues of doubt or intention of the original order or interpretation
• international children matters should only be dealt with by judiciary at a senior level and experienced in dealing with family law work
• there should be more publicity given to the European commission paper, July 2006, “Towards an EU Strategy on the Rights of the Child” with the appointment of a EU Commissioner Coordinator for the Rights of the child and to implement UNCROC within Europe
• given the lack of effective national borders within the European Union, greater co-operation is therefore required between state agencies to track the movement of children across Europe, whether by parental or non-parental abduction
Hearing the voice of the child
A consistent trend across many countries in the late 1980s onwards was the dismissal of the previously held notion that a child had no right to be heard until hitting the magic age of 18. Case law and legislation across Europe now require the child to be heard. This is of course subject to maturity, age and understanding. Jurisdictions have approached the question of hearing the voice of the child in different ways, refining and developing this philosophy over the last decade. Approach now differs. In some jurisdictions the child is actually heard by the judge in chambers, either in confidence or in the presence of others. In some jurisdictions the child is given the opportunity of separate representation alternatively representation is provided in all cases. In some jurisdictions, ancillary family court workers with appropriate qualifications see the child, including in the context with each parent and in the family home, and then report to the court. Some jurisdictions have a mixture.
The issue has been given greater importance as hearing the voice of the child is a precondition to the automatic recognition of contact orders across Europe, as introduced in 2005 by Brussels II bis.
Some jurisdictions, for instance Germany, allegedly say that unless their style of hearing the voice of the child is adhered to, the contact orders will not be recognised. In Germany, judges routinely see children including those of a very young age. In some jurisdictions some judges are also prepared to do so and feel confident and trained to do so. But other judges are keenly aware of entering into very dangerous waters when judges see children including the risks of being perceived to make promises to the child or knowing what information to pass on to the parents. Yet these judges believe they are just as conscientious in hearing the voice of the child second hand as those judges talking to a five-year-old across the court room table.
• The automatic recognition of contact orders is a colossal boom across Europe for parents as well as being a significant benefit for children. It should be a model for other children orders for instance as to residence, custody, parental responsibility.
• The precondition of hearing the voice of the child is a reasonable one in all matters concerning children, consistent with their age, maturity and taking account of undue influence of parental or other family pressure
• judicial and legal traditions should reasonably be able to differ as to how the child’s voice is heard and should not be a bar to the greater benefit of the automatic recognition of children orders
• the judiciary should be appropriately trained to meet with children and be given very careful guidelines on what is appropriate to say, and not to say, to children and what can subsequently be relayed to parents
• the judiciary need careful guidance on when, and in what circumstances, they should depart from recommendations and guidance given by family court workers who have seen the children and family and heard the voice of the child
• appropriate funding should be available for opportunities of child representation
Across Europe, an order made by a family court by consent pertaining to maintenance will be automatically recognised and enforced, following changes in October 2005. Brussels I gives a passport for a family court order for maintenance to be enforced across Europe.
A considerable part of Europe has a dramatic divide between maintenance and property regimes.
Maintenance is not just spousal maintenance or child maintenance orders themselves but relates to the needs of the family members. It is invariably found in spousal maintenance or child maintenance orders but can occasionally be found in equitable distribution lump sum orders. It is an issue resolved before the courts or between the lawyers.
IN these jurisdictions, property regimes on the other hand are the subject of pre-marriage agreements, statutory regimes opted into or opted out of by the couple at or before the time of the marriage and which govern the couple through to marriage breakdown or death. Invariably, the property regime is fixed. An implementation of the division of the matrimonial property regime is undertaken by notaries, one notary acting for the couple together. It is often a non contentious process and with no input from the courts. Hence maintenance and property are understandably well apart For a few countries, income and capital, maintenance and property is all simply money! It is all resources of the family capable of division to produce a fair result. If this fair result is determined exclusively by needs, these countries are aligned with the community of property countries with their emphasis on maintenance. However once the family courts start making orders based on sharing, compensation, contribution or general fairness, and not referable just to maintenance, they are stepping outside of the main matrimonial regimes across Europe. These non-maintenance orders will not be automatically recognised nor automatically enforced. International judicial comity, together with the immutability of real property, comes to some occasional assistance. However even here many continental European jurisdictions require local orders for real property situated within its jurisdiction. This can require a second order to be made to implement against a property abroad. This causes delays and additional costs.
As there is such a stunning difference between maintenance and marital property regimes in many continental European countries, European family law has distinguished between the two in recognition
This demarcation is clear and certain yet resolution is needed. The reality is that each of these separate “marital systems” will not change in the foreseeable future. Other processes must change instead.
Equally, international families should be entitled to expect that the final financial orders of competent family courts, arrived at after a fair hearing, will be recognised and enforced across related jurisdictions.
Not to do so, including making parties commence fresh proceedings where the assets are situated, is simply unfair.
• There must be recognition that the traditional divide in some jurisdictions between maintenance and marital property regimes will not end in the medium term or perhaps at all
• The wide scale redistributive powers of the countries with non community of marital property law will continue to prevail in making often substantial orders to provide for perceived fairness
• International families are entitled to expect competent courts to be able to make orders which would be recognised and enforced across the European Union and elsewhere
• Despite the differences between the separate regimes, community of property countries should automatically recognise and enforce financial orders from competent family courts with redistributive powers. Similarly, the courts of non community of property law countries should automatically recognise and enforce, as if a court order, the notarial division of marital property
• Courts should be cautious, and probably should not, interfere with family court financial orders made abroad after a fair hearing, after representation and similar
• Family financial orders should be capable of automatic enforcement against the other party and, by using local enforcement remedies, against third parties such as banks, employers and similar
International family law co-operation
The European Judicial Network (EJN) operates in civil and criminal matters whereby a liaison judge in each jurisdiction is able to coordinate with national judges in his jurisdiction and liaison judges in other jurisdictions. Family law operates within the civil justice system. Yet it is a very distinctive area with its own specialised professions of lawyers and judges. It can work at its best as a self-contained area within civil justice. Many disputes involving proceedings in two or more countries could be better managed and possibly produce a better result with greater use of the EJN in the family law context.
Central Authorities have a crucial role to play within the Ministries of Justice or similar organisations in each country. They are already involved in issues of child abduction, recognition and enforcement of the family orders and similar.
There are a number of networks of family lawyers. The leading one for family finance lawyers is the International Academy of Matrimonial Lawyers, a 300 strong peer elected group across the world, many in America and England, of lawyers who undertake a significant amount of family work. It includes some international children lawyers but the emphasis is finance. Invariably they are lawyers with high charging rates in large firms in the metropolitan centres, often capital cities. There are other networks such as those linked to reunite, the highly regarded child abduction charity. There is the IBA. Many larger firms now have overseas offices or commercial links such as Eurojuris.
However family law work is no longer the prerogative of the bigger money, bigger firm, bigger city lawyer and his clients. It is found in all towns and villages across every country. Moreover many of these
• The European judicial network is a vital tool in individual cross-border cases to create greater understanding, to overcome procedural problems, to coordinate timetable and procedural steps and to assist resolution. The importance of a strong family division to the EJN cannot be underestimated
• in any event, complex or substantially contested cases with an international element should be dealt with by the more senior judiciary because of the complexity of the issues and law but also to facilitate greater cross-border liaison and co-working by the judiciary
• the Central Authorities play a crucial role, which role will only increase.
• There is an urgent need for a network of European family law practitioner organisations, so that a lawyer in one country can contact his national family lawyers organisation which in turn would liaise with the family law organisation of the other country which in turn would recommend specialists in the locality to assist and advise. This is one of the most urgent requirements to produce justice and fairness and reasonable outcomes for clients across Europe
• unfortunately, some countries in Europe do not even have a national family lawyers organisation.
Urgent assistance from Brussels is needed in setting it up for these jurisdictions. Those who do have some national family lawyers organisation have often very rudimentary and basic groups without any opportunity to embark on this sort of initiative. Again, assistance is needed
• considerable assistance and funding is required from Brussels to set up this network, quickly and efficiently and centrally. It is crucial for the future of representation of clients in cross-border cases and implementation of European family law
Whose law is it anyway?
Although the debate has raged across Europe about applicable law, namely should a country apply its own local law or the law of the country of the couple’s origin, joint nationality or closer connection, some countries have also experienced a subtly different challenge. It is a challenge made on several fronts but of particular importance in family law. It arises primarily from sections of the Islamic community who are of the strong belief that the countries in which Muslims are living should not apply either their local law or conventional applicable law but instead should apply Islamic law, often Sharia law. This argument is being seriously contended in a number of quarters.
A number of European countries have a sizeable Islamic community. At times it seems as if some members of that community live their lives without any reference to national family laws. Marriages are contracted, and adhered to by communities, which are not recognised in national law. Even more frequently, divorces, talaqs, are entered into either willingly by both parties or unwillingly by the wife, which either take place abroad and may not be recognised or are transnational and therefore definitely not recognised. After these divorces, one or both parties marry, again through religious ceremonies and unrecognised by local law. The family courts are therefore presented with a confusing array of ceremonies and marital events, only some of which are nationally recognised yet are fully endorsed and acted upon by these families and their localised communities.
In addition, at the family courts some parties themselves seek to refer not necessarily or at all to national legislation but to the Koran. Assertions are made that judges should interpret and apply this personal law rather than national law.
Moreover, if claims for personal law are made by the Islamic community, why should it not be claimed by other religious communities such as Jews, evangelical Christians and others? Moreover, why does there have to be any limitation due to religious belief? Can it be the law of a group without any religious or similar belief? How large does that group then have to be?