Tuesday 31 July 2012
Mr Justice Ryder reports on family justice
The much anticipated review of Mr Justice Ryder was published on 30th July 2012. The full report can be accessed at : http://www.judiciary.gov.uk/publications-and-reports/reports/family/the-family-justice-modernisation-programme/family-modernisation-final-report
International Judicial Liaison
The Hague Conference published 'Emerging Guidance' in respect of international judicial liaison. This has been a topic of considerable discussion over the years as a result of disagreements as to the manner in which liaison should occur and what can be the appropriate subject matter of liaison. The USA statutes provide for inter-state liaison which, when it involves anything other than purely administrative matters, requires that the parties be given the opportunity to participate and to make factual and legal submissions. In the UK no statute permits such an approach. The Emerging Guidance emphasises the limits of liaison and the need to operate within national constitutional boundaries.
Tuesday 24 July 2012
1996 Hague Convention: Part III: A New Hope Rises
Latest word is that the problems over data protection have been settled and the Convention will come into effect November or December 2012.
Friday 13 July 2012
Lord Justice Munby...
Will be back in the Court of Appeal soon completing his stint as Chair of the Law Commission on 1st August 2012.
Mr Justice Lloyd Jones will replace him.
Mr Justice Lloyd Jones will replace him.
Friday 6 July 2012
Joinder of parties to Hague Convention cases
Mr Justice Peter Jackson declined to join a 1/2 sibling of a subject child as a Respondent to Hague Convention proceedings. He did not accept the 1/2 sibling played a role in the care of the child and concluded care meant physical care not emotional support.
He also doubted that FPR 16.2 could be used as a route to join a non-subject child if they did not qualify to be joined as a Respondent
He also doubted that FPR 16.2 could be used as a route to join a non-subject child if they did not qualify to be joined as a Respondent
EU Service Regulation
Moor J had to consider the provisions of the EU service regulation in a recognition and enforcement case last week. The Respondent relied on lack of service of the originating process as a defence. Michael Gration of 4 PB put up a compelling argument, relying on a detailed analysis of the EU service regulation and Articles 18 and 23 of BIIR.
The critical point was that the Service Regulation provides where service has not been proved, that the court cannot proceed to final determination until 6 months have elapsed since service was attempted. The provisions of the Regulation set out a detailed scheme for dealing with service between Member States. The Foreign Process Section in the QBD is the transmitting and receiving agency for England and unless one of the other forms of acceptable service is adopted (service by the courts of the other MS etc) then in order to proceed to final judgment the applicant will need a certificate of service.
The critical point was that the Service Regulation provides where service has not been proved, that the court cannot proceed to final determination until 6 months have elapsed since service was attempted. The provisions of the Regulation set out a detailed scheme for dealing with service between Member States. The Foreign Process Section in the QBD is the transmitting and receiving agency for England and unless one of the other forms of acceptable service is adopted (service by the courts of the other MS etc) then in order to proceed to final judgment the applicant will need a certificate of service.
BIIR - 1 : Hague Convention - 0
JG-v-EB. Mostyn J has confirmed that in EU cases recognition and enforcement of an existing order is the appropriate route to follow rather than a 1980 Hague application. He points out the relative difficulty in opposing recognition and enforcement as compared with a Hague application and the saving of court time, legal aid money and Cafcass resources as being key reasons for preferring that route and relies on the overriding objective.
In this particular case the Applicant was entitled to non-means and non-merits legal aid to enforce as he had been legally aided in the original proceedings in France. In other cases however obtaining legal aid or private funding could be a stumbling block. The provisions of Art 21(4) might allow the issue to be determined within Hague proceedings and it may be sensible to commence Hague immediately whilst also registering for enforcement. The appeal against enforcement could then be listed within the Hague case with the summary return application being adjourned while that route was pursued.
In this particular case the Applicant was entitled to non-means and non-merits legal aid to enforce as he had been legally aided in the original proceedings in France. In other cases however obtaining legal aid or private funding could be a stumbling block. The provisions of Art 21(4) might allow the issue to be determined within Hague proceedings and it may be sensible to commence Hague immediately whilst also registering for enforcement. The appeal against enforcement could then be listed within the Hague case with the summary return application being adjourned while that route was pursued.
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