Meeting Summaries
The Family Justice Council International Family Law committee
Minutes of the meeting held on Tuesday 10 May 2005 In the PRFD Conference Room, First Avenue House
Present
The Right Honourable Lord Justice Thorpe (Chairman)
The Right Honourable Lord Justice Wall
The Honourable Mr Justice Singer
The Honourable Mrs Justice Baron
The Honourable Mrs Justice Black
His Honour Judge Ian Karsten QC
His Honour Judge Pearl
The Senior District Judge
Edward Solomons (Deputy Official Solicitor)
Professor Judith Masson (Family Justice Council)
Mike Hinchliffe (CAFCASS Legal Services)
Carolynn Usher (SFLA)
Gay Bailey (DCA)
Paul Ahearn (DCA)
David Hodson (SFLA)
Professor Mervyn Murch (Cardiff Law School)
Ian Edge (Barrister and Academic)
Professor David McClean (Sheffield University)
Nicholas Mostyn QC (FLBA)
Shan Maraj (Secretariat)
Apologies
Professor Nigel Lowe (Cardiff Law School)
Angela Lake-Carroll (Legal Service Commission)
Michael Nicholls (Barrister)
1. Announcements and apologies
The Chairman announced that the Honourable Mrs Justice Baron (FJC member and member of the Franco-British Cooperation Committee) and the Honourable Mrs Justice Black (FJC) were new members of this committee.
2. Minutes of the last meeting 8 November 2004
The minutes of the meeting were approved.
3. Matters arising (action plan)
I. Item 3: Matters arising from the minutes of the meeting held on 8 November 2004
Clarification was sought on item 3.2 EC Parental Responsibility Regulation (referring back to Para 3.3 of the May 2004 meeting ) and the action point for the Secretariat relevant to this. Secretariat is to ascertain.
Action: Secretariat to clarify and email Committee
ii. The Senior District Judge informed the committee that amendments had been agreed to Section 2 of the Family Law Act 1986. The section has been completely rewritten and is now much more comprehensible.
iii. The committee was told that minutes of committee meetings were on the website and that it had been decided at the FJC meeting that minutes were to be brief.
iv. Professor Mervyn Murch said that negotiations for the next Irish-German-UK conference needed to be taken forward. The Chair asked Professor Murch to find out what was happening and offer any necessary support from England and Wales. There would also be an opportunity to discuss with the Irish delegation at Beaulieu (see below).
4i. Egypt negotiations
The Chair updated the committee. The first stage of negotiations was complete. The return visit in January 2005 to Cairo was successful, with far reaching potential mechanisms for future Anglo-Egyptian business.. The importance lay in the influence the agreement might have in the Arab world. Egyptian judges were very committed to dealing with cross-border child issues. Egypt has called the outcome of the negotiations 'The Cairo Declaration.'
A question was raised as to how the English involvement in this will be publicised. The Chair said that it had been published in the International Family Law Journal and the Hague Judges' newsletter. Perhaps more needed to be done here in the UK.
ii. Operation of Pakistan protocol
The Chair said that there were some problems with this, though it was too early to assess the magnitude. There was a question as to whether the High Court of AJK, a separate jurisdiction, was fully supportive of the protocol. One member said that some cases proved that the protocol was working. The Chair said that a log of successful cases was kept by the Family Division lawyer and the only unease was in relation to the separate jurisdiction of Jammu and Kashmir.
iii. and iv EJN and liaison judges and DCA Euro Stakeholders Group
The Chair said that it was continuing to prove difficult to get direct judicial liaison between EU Member States. The DCA were being urged to put this in place. The European Civil Judicial Network already existed and how to address family matters, within or outside it, remained an issue. The Chair had suggested complementary arrangements with family judges. This would be proposed to the European Stakeholders Group meeting on 18 May. The Chair had reached agreement with the common law jurisdictions of Scotland, Malta, Northern Ireland, the Republic of Ireland and Cyprus that they would nominate liaison judges for EU business . Relationships were being developed with liaison judges in London for work involving France and Italy.
Mike Hinchliffe asked if there was an interim arrangement that could be applied to cases from Europe and whether this needed to be channelled through the chair or if there was a protocol to be followed. He explained that CAFCASS received requests for assistance on an agency to agency basis and sometimes worked that way rather than going through the Queens Bench Masters. Within limitations, CAFCASS could provide a report. The Senior District Judge stated that he had received a request from the Senior Master for a new process rather than channelling requests through his office. It was stated that the mechanics of the EJN are different from the use of liaison judges. It involved using Central Authorities and Contact Points. There are 25 national Contact Points. Other Member States would probably have different views on the need for a separate family network or on how this might work. The overwhelming majority of EJN work relates to civil matters.
v. Beaulieu
The Chair said that the Francophone Anglophone Family Law Judicial Conference in Beaulieu-sur-Mer in June 2005 would be looking at :
a. Role of the Children's Commissioner
b. Brussels II bis
c. EJN
d. Family Mediation
Gay Bailey updated the committee on the format of the conference. Participation involved eight Francophone and Anglophone jurisdictions. Two and a half days would be dedicated to business discussions with working groups in the evening to discuss resolutions. The role of the Children's Commissioner is a priority for the French Ecole Nationale de la Magistrature, one of the organisers of the conference. The Chair said the conference resolutions will be published in the International Family Law Journal and the Hague Judges' Newsletter.
The Chair said that Mrs Justice Black would be attending the Anglo-French Colloquium in Rennes, France and would be presenting a paper on 'The Role of the Child in Family Cases' and Ian Karsten would be speaking on 'Children's Rights'.
vi. Hague developments
The Chair referred to the Hague Conference on Private International Law work with Islamic jurisdictions The Hague Permanent Bureau is committed to having another conference similar to that held in Malta in March 2004, but on a larger scale, a "limited world conference" involving the USA and Australia. It is also interested in achieving better international standards or understanding on contact relating to Article 21 of the 1980 Hague Child Abduction Convention. The Chair noted that the capacity of the Permanent Bureau to facilitate and lead judicial discussions in this area was hugely important.
vii. Commonwealth law conference
This conference on Family Law will take place from 11 to 15 September 2005 in London; the Chair updated the committee on the format. He said that India would be encouraged to use this conference as a tool to develop special relations with the U.K. The Chair will be having a meeting with the Chief Justice designate of India in June 2005. It was suggested that India could be encouraged to sign the 1980 Hague Convention. If not, it would be relatively easy to achieve a protocol now there were direct contacts.
The Chair reported on Dame Elizabeth Butler-Sloss's visit to Bangladesh and there were reports on Hague Maintenance Convention negotiations by David McClean and Paul Ahearn on the Hague work. It was noted that the Hague Conference was continuing work on a new Maintenance instrument, with completion expected at the end of 2006.
5. EC Green Paper on applicable law and juridictionin divorce matters
David Hodson discussed the paper. He said a response was needed by 30 September 2005 and asked for the committee's views. Paul Ahearn said that this committee would be consulted formally by DCA as part of the UK consultation process. After much discussion it was agreed that Ian Karsten would lead a sub-group to prepare a formal response to the above paper by mid-August. Volunteers for the group were to contact Ian Karsten directly.
Action: Ian Karsten to form sub-group to prepare formal response to the paper. Copy of the response to be sent to Secretariat.
6. Production of a report to the Familiy Justice Council setting out this committee's view of its future role for the October FJC meeting
The Chairman said that there was now a profound appreciation of the importance of the international dimension of Family Law recognised by the Government and the Lord Chief Justice. There was no question as to the vital need of the committee and its future work. The Chair said that there was no need for this committee to be tied to the FJC but that there were considerable advantages in the link. If the FJC were not keen to continue the chair said that it could function on its own. There was much discussion on this. Edward Solomons suggested that links could be established with the Civil Justice Council which also had an international sub committee. The Chair will investigate this possibility. It was agreed that Florence Baron and the Chair to work on a draft report to the Council, setting out briefly activities for the past year. Future committee projects also need to be included on the FJC business plan so that funding requirements were recognised.
Action: Chairman and Florence Baron to formulate draft report and circulate to committee for approval.
7. Any other business
i. The Senior District Judge updated the committee on the EC Regulation 805/ 2004 on European enforcement orders. This comes into force on 21 October 2005. It provides for direct enforcement, including of maintenance orders, and abolishes exequatur in uncontested claims, for example consent orders in ancillary relief and unopposed orders in ancillary relief. The Civil Procedure Rules and the Family Procedure Rules have been amended.
ii. The Senior reported that the Civil Partnership Act 2004 includes provision for jurisdiction in international dissolution cases to be equated to the Brussels II revised Regulation. Rules are to be made to create the same jurisdictional basis. Gay Bailey noted that DCA would be consulting the Senior in the first instance and this committee separately after that.
iii. The Senior said that the PRFD had received visits from a delegation from Chile, which has just introduced divorce. There had been other international visitors from Spain and Ghana.
vi. Paul Ahearn said that the European Commission had issued an informal draft document on the Reciprocal Enforcement of Maintenance Orders (REMO). There were separate proposals on recognition, enforcement and applicable law. The proposals would probably be published in September. It was agreed that Paul Ahearn will circulate the document to this committee for views.
Action: Paul Ahearn to email proposal to committee, for information and any initial comments.
8. Date of next meeting
The next meeting of this committee will be held on 8 November 2005 at 4.30 pm in the Restaurant Area, 11th Floor, Thomas More Building at The Royal Courts of Justice.