X -v- Latvia: Judgment of ECHR

The European Court of Human Rights will be delivering a Grand Chamber judgment in the case of X v. Latvia (application no. 27853/09) at a public hearing on 26 November 2013 at 11 a.m. – local time – in the Human Rights Building, Strasbourg. The case concerns the application of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 by the Latvian courts in ordering the return of the applicant’s daughter to Australia with her father, and its compatibility with the provisions of Article 8 of the Convention.

Forum Conveniens, BIIR and Owusu-v-Jackson

The Court of Appeal on Friday 18 October, handed down a landmark judgment for international families with connections to England and non-EU countries who are divorcing. The decision confirms that where there are divorce proceedings in both England and a non-EU country, the English court retains the discretionary power to decide that it is more appropriate for the proceedings to take place in the other country and accordingly to stay the proceedings in England on forum non conveniens grounds. Many non-EU countries around the world apply a similar test when deciding in which forum the proceedings should take place. There was much debate following the controversial decision of the European Court of Justice in Owusu v Jackson (2005)in which the ECJ said that the discretion to stay proceedings no longer existed in cases where England or other EU countries had jurisdiction under an EU Regulation to hear proceedings. The question of whether it applied in family law, particularly divorce, has been debated since. The appeal, which will be reported as Mittal v Mittal [2013] EWCA Civ 1255, The Court of Appeal was comprised of a non-family law bench, with Lord Justice Lewison giving the lead judgment to which Rimer and Jackson LLJ concurred.

Legal Aid in International Cases: The latest on the legal aid consultation.

Paras 125 of Annex B sets out some specific exemptions to the ‘residence test’. The exemptions are made by reference to particular paragraphs of Schedule 1 of LASPO. (a) Forced Marriage cases will not be covered by the 1 year residence test. (b) Various child protection cases will not be covered by the 1 year residence test including care (LASPO Sch 1, para 1) child abduction cases (para 10) (c) Inherent jurisdiction will not be covered by the 1 year residence test. We consider it to be significant that there is no express reference to Paragraph 17 of Sch 1, LASPO which deals with 1980 Hague and BIIR matters. However to confuse matters at para 116 of The Response it is stated that ‘...we would ensure that legal aid would continue to be available where necessary to comply with our obligations under EU or international law set out in Schedule 1 to LASPO .’ Para 17 of Sch 1 of LASPO is titled’ EU and international agreements concerning children’. However it is not apparent what the MoJ consider their obligations to be. Arguably this would only cover Applicants for 1980 Hague orders or which fall under Art 50 BIIR. This might therefore mean that all Respondents’ to 1980 Hague applications and all applications under BIIR (Art 11(6-8), registration and enforcement applications not covered by Art 50) would be subject to the 1 year residence test. For most of them (save in settlement cases) they would fail a residence test. Given the complexities in these cases this would be counter-productive to the efficient handling of them. There is an argument that 1980 Hague cases are also in the Inherent Jurisdiction and so would be ok. Although many 1980 Hague cases are also entitled ‘In the Inherent Jurisdiction’ we are not sure that they truly are within that. The Tipstaff orders are often framed in that jurisdiction but arguably are made under Section 5 CACA 1985 and Article 7 1980 Hague. The recent guidance from the President about drafting orders specifically disapproves of the use of ‘In the Inherent Jurisdiction’ as part of the title. In reality the ‘Inherent Jurisdiction’ plays a minor role in 1980 Hague cases (save for unusual circumstances; for instance where 1 child is not covered by the Hague and a return is sought under the Inherent Jurisdiction. I very much doubt that the Legal Aid Agency will accept applications for inherent jurisdiction certificates where the primary application is under the 1980 Hague Convention. The legal aid certificates granted to applicants are to make an application under the 1980 Hague Convention/Child Abduction and Custody Act 1985 and do NOT refer to the Inherent Jurisdiction. Issues have arisen in the past when ‘dual’ applications have been made for Applicants, or where reference is made to the Inherent Jurisdiction because legal aid is non-means non-merits for the 198 Hague/CACA but is means and merits tested for Inherent Jurisdiction and the LSC has then questioned whether there should be apportionment of costs etc. I doubt that the LAA will accept applications for inherent jurisdiction certificates to defend a Hague. We will be responding seeking confirmation of express exemption of matters falling within Para 17 of Sch 1 of LASPO. I am afraid we are working on the assumption that the failure specifically to exempt all matters falling under Para 17 is significant (rather than inadvertent) and that the residence test would apply save where there are very tightly defined ‘obligations’ to provide Legal Aid. Inherent jurisdiction is not likely to provide a life-boat. Annex B ‘s get out clause is that if you, as a legal aid provider, think that failure to grant legal aid as a matter falls outside of scope would be a breach of EU / International law, they expect you to make an application for exceptional funding under section 10 of LASPO. In the context of an applicant or a respondent to a Hague convention case this would mean that we would be expected to explain to the LAA why failure to grant funding would amount to this breach. I don’t think the exceptional funding provisions are intended to apply to entire categories of case but instead are intended to apply to individual cases which warrant funding on their facts so that obligations under EU / International law can be met. The arguments you would made for the grant of exceptional funding would always be the same in an abduction case. Which I think means that s.10 LASPO is not an appropriate safeguard to ensure that abductions are funded.

Habitual Residence: The UK Supreme Court Judgment in A

On 9th September the UKSC delivered its judgment in A: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2013_0106_Judgment.pdf There is much of interest but 2 principal points are (a)the courts of England retain jurisdiction in respect of children who are UK subjects in certain limited circumstances. (b) the test for determining the habitual residence of a child is the European test set out in Mercredi-v-Chaffe and Re A. The English authorities including Shah-v-Barnet should no longer be followed. In particular they place too much emphasis on the intentions of the adults and too little on the factual situaiton of the child.

EU issues Best Practice Guide on 1980 Hague Abduction and Art 11(6-8) applications

The European Union Working Group on Article 11 of BIIR has now issued some best practice guidance on both Central Authority and Judicial processes in relation to how 1980 Hague Abduction Convention applications are handled and how Article 11(6-8) 'second bite of the cherry' applications are dealt with. The Guidance can be found at: https://e-justice.europa.eu/content_parental_responsibility-46-en.do and https://e-justice.europa.eu/fileDownload.do?id=6c30ffe7-40e7-4d9a-96b0-7c9a14370c3c

Legal Aid Consultation

The new consultation is out. https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps/consult_view My preliminary reading (paras 125 on) suggests that the 1 year residence (a) The government have said that obligations under EU or international law as specified in Sch 1 LASPO (http://www.legislation.gov.uk/ukpga/2012/10/schedule/1 )will not be covered by the 1 year residence test and will be covered by legal aid. Para 17 of Sch 1 of LASPO covers EU and International Agreements relating to children (which includes 1980 Hague) and so I assume legal aid continues for Hague (b) Forced Marriage cases will not be covered by the 1 year residence test. (c) Various child protection cases will not be covered by the 1 year residence test including care (LASPO Sch 1, para 1) child abduction cases (para 10) (d) Inherent jurisdiction will not be covered by the 1 year residence test.

1980 Hague Convention - Relevance of child's perspective on habitual residence - exercise of discretion

Re L-C. Court of Appeal 15.8.2013.(Hallett, Black and Gloster LJJ The Court of Appeal concluded that (a) a child's own views on their integration into a country and environment could be relevant to the assessment of whether they were habitually resident there. In this case the judge had considered and given adequate weight to them. His decision that the children were habitually resident in Spain was right. (b) in considering the discretion the fact that the child had lived all her life bar 5 months in England was relevant to the weight that should be given to policy considerations. The judge was wrong in the exercise of his discretion to have given such weight to policy considerations in comparison to the child's objection and the welfare considerations supporting a non-return. (c) the case in respect of the 3 younger children were remitted for further consideration of the Article 13b issues related to separation of the sibling group.

EU activity:

The European Commission has adopted a proposal to remove obstacles to the cross-border recognition of public documents such as birth, marriage and adoption certificates.
http://bit.ly/Y91Ws1

Hague Abduction Convention: Child's Objections

RE A (CHILDREN) (2013)


CA (Civ Div) (
Thorpe LJ, Kitchin LJ, Sir David Keene) 23/07/2013The Court of Appeal refused the father's appeal against the refusal of his application for the return of the children to Norway.
Although the judge had referred to Re W and a 'comparatively low threshold requirement' she had not misdirected herself when considering the totality of her directions on the law.
In considering a young child in respect of whom an objections defence could not be made out the judge was entitled to look at the older children and exercise her discretion in respect of them and then turn to the youngest and to find an Art 13(b)  defence  based on separation from her siblings.

EU Domestic Violence Protection.

EU-wide protection for victims of domestic violence to become law Victims of violence, in particular domestic violence, will soon be able to count on EU-wide protection, after the European Parliament voted with an overwhelming majority (602 votes in favour, 23 against, 63 abstentions) to endorse the European Commission's proposal for an EU-wide protection order. The new regulation will mean that citizens (in most cases women) who have suffered domestic violence can rely on a restraining order obtained in their home country wherever they are in the EU: the protection will travel with the citizens. In practice, the EU law will benefit women in particular: around one in five women in Europe have suffered physical violence at least once in their life, according to surveys. An estimated 1 in 5 women in Europe suffer some kind of violence at least once in their lives. Sadly, the most common form of physical violence is inflicted by someone close to the woman, usually an intimate partner," said Vice-President Viviane Reding, EU's Justice Commissioner. “Thanks to the European Protection order, victims of domestic violence can breathe a sigh of relief: they will be able to rely on a restraining order obtained in their home country wherever they are in the Union. The protection will travel with the citizens. This is a tangible example of how the EU is helping to reinforce the rights of victims all over Europe. I would like to thank rapporteurs Antonio López-Istúriz and Antonyia Parvanova for their tireless work on this important dossier which paved the way for a swift adoption by the European Parliament. Today's vote in the European Parliament follows a political agreement between the European Parliament and Council of Ministers at a so-called trilogue meeting in February (

Legal Aid Consultation: 4PB International Child Law Group response to consultation

The 4PB ICLG has prepared a response to the current legal aid consultation: http://www.4pb.com/media/PDFs/Transforming_legal_aid_-_4PB_International_Child_Law_Group_Response_to_Consultation_final_.pdf

The focus of the response is on the proposal to introduce a residence test (resident at time of application and residence for 12 months in total in UK at any time).

We conclude that such a requirement would have a major impact on international family law cases, including but not limited to
(a) forced marriage cases,
(b) stranded spouse cases,
(c) non-Hague inherent jurisdiction abduction cases
(d) Hague Convention respondents
(e) reciprocal enforcement applications.

We identify examples of real cases where legal aid would not be available under the proposed changes and where its absence would be likely to have seriously detrimental effects both on the individual children concerned and on the administration of justice.

We recommend that classes of family cases are exempted from the residence requirement.

Annual Report of the Office of the Head of International Family Justice for 2012

The Annual Report provides a real insight into the activities of the Office of the International Liaison Judge together with an evaluation of developments and a statistical analysis of the cases it has dealt with.

The central message is the continually growing need for international judicial liaison as global families increase and the undoubted benefits that this can bring in resolving litigation.

The statistics show that in 2012 there was a 40.5% rise in applications for assistance to 253. This reflects growing globalisation and the increase in applications under the 1980 Hague which increased by 100% in the decade to 2008.
 The requests for assistance involved 71 separate jurisdictions. This included liaison with Sudan. Of the 71 jurisdictions involved tangible assistance was given in 46. Given only 2 countries (England and Netherlands) have a permanent office as opposed to a judge alone this is very positive. 
50% of all the cases were intra-European, 14% the Americas and Carribean, 10% Africa, 15% Middle East and Asia and 6% Australia/NZ. Within the EU the largest number of applications was in respect of Poland (14) but as Poland has not appointed a sitting judge as the IHLJ or EJN judge (same for Italy) this has impeded liaison. France, Germany, Spain and Ireland also generated significant numbers of requests. Liaison with the USA has proved easy to facilitate as they are accustomed to inter-State liaison. Good links have been made with Kenya, Nigeria and with a number of South American countries.
The office has dealt with queries relating to public and private law children cases, relocation, inter-country adoptions, surrogacy, forced marriage and financial remedy cases as well as abductions.
Of the requests most were 'outgoing' where the English courts were seeking assistance from another jurisdiction. Only 11% were incoming requests from other countries seeking information about our systems.
Although only 28% of the requests were made directly by judges (56%) were made by practitioners all approaches have to have the sanction of the judge involved.
The Pakistan Protocol has been used in a nearly 200 cases since 2003, some to achieve returns many as a protective measure in temporary leave to remove 'holiday' cases. The Cairo Declaration has not borne the fruit that the Pakistan Protocol has.

Interesting examples of the assistance given include
(a) a request to the AG of Cyprus for assistance in ensuring a mother was not prosecuted on return where an EAW had been issued
(b) assistance in the transfer of care of an incapacitated adult from France to England.
(c) Liaison with the French authorities to secure the return of 2 children the subject of care proceedings in England.

The full report can be found at : http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/international_family_justice_2013.pdf

Experts in family cases:

CW v SG [2013] EWHC 854 (Fam)

Application by mother for an order terminating father's parental responsibility and by father for a specific issues order requiring the mother to supply annual reports on child's progress. Mother's application granted, father's dismissed and consequential directions given. Mr Justice Jonathan Baker had this to say about the psychologist in para 50. 

'In light of my findings about those matters I turn to consider the evidence of XX I listened to that evidence with increasing concern. I regret to say that I have found his opinions naïve, complacent, unreliable and at times misleading. His reluctance to accept the convictions as the factual basis for his assessment was a dereliction of his duty as an expert witness. His statement in his report that there was no evidence of any "deviations" was simply untenable given the existence of the convictions for ten offences of sexual abuse. His various statements about paedophiles quoted above runs contrary to all the understanding about the dangerous and deceitful behaviour of paedophiles which this court has come across many times over the years. His assessment of risk was, in my view, worthless, and I reject it. '

This case is interesting as a restatement of the duties of an expert and an example of how badly experts can get it wrong.

Mediation and Counselling in High Conflict Cases

Interesting results from Canada on a programme called 'New Ways for Families'.  Some Family Courts in Alberta are operating the programme  cases under a three-year grant from their Provincial Ministry of Justice.
One of the two goals of the grant is to reduce court hearings – especially of high conflict divorce and separation cases that are clogging the courts worldwide. The other goal is to reduce family conflict in the community. All of this is being researched during the three years.
The cases are mostly referred to the New Ways program by court order, based on each individual judge’s belief it may become a high conflict case. The recommended standard is an easy bright line: is either party submitting a court application for a hearing to restrict the parenting of the other parent? (For example, supervised visitation, no contact orders or very limited time.) That has  been the clearest early warning sign that a significant conflict is brewing Medicine Hat is now half-way through their 3-year grant, and is starting to see some dramatic results. During the first 8 months of the program, 58% of cases settled after going through the two counseling phases of New Ways, while the rest went on to have court hearings. However, these cases did not have a mandatory ADR method, such as mediation, after the counseling and before a court hearing (such as is required in California with Family Court Services mediations before any court hearing). During the past 7 months of the program, they have had a mandatory mediation (or Collaborative Divorce or other ADR method) and 89% of the cases settled out of court and only two went to court hearing. This reinforces the idea that potentially high conflict parents need structure and focus to actually settle their cases using their skills – but they can! The sample size is still small – approximately 50 cases – but the  feedback is positive.

New Ways for Families is a structured parenting skills method with short-term (6 weeks, once a week) counseling to reduce the impact of conflict on the children in potentially high-conflict cases.Its “skills-building” counseling, which means that the focus is shifted from discussing the past at length and instead focusing on how to solve future problems.

Common sense suggests that such programmes would be likely to be of value to any family, particularly high conflict cases but in these times of austerity the financial resources required to roll-out such a programme nationwide would be immense.
Does anyone know of a similar programme being implemented as a pilot in England?

Preliminary References to the Court of Justice of the European Union

Academy of European Law Workshop: Parental Responsibility in a cross-border context.
I have just returned from Florence where I delivered a presentation on applying for preliminary rulings from the CJEU in family matters. Judges from Italy, Bulgaria, Croatia and Austria were attending a 2 & 1/2 day workshop covering aspects of BIIbis, the 1980 Hague Convention and mediation. My presentation was a bit of a 'lifeboat' talk: something you need to have but hope you never have to use. The discussion groups on the case studies did reveal some interesting and different interpretations of some of the Articles of BIIbis although overall the majority of participants across the board interpreted them in the same way. Re-assuring that this was so given the fears that some involved in cross-border work have about how consistently BIIbis and 1980 Hague are applied across the widely differing legal systems where they apply.
Some interesting translation issues arose as well which taken with Sir Peter Singer's observations in L-v-E on the difference between the French and English versions of the CJEU judgment in Mercredi-v-Chaffe are a good reminder of the value in considering translation issues.
Speaking of which the workshop was conducted in Italian and English and the simultaneous translation provided by  ARTIG (www.traduzioni-giuridiche.it) was excellent.
As ever the discussions outside the Workshop were as interesting (more than mine!) as those inside. Meeting practitioners from other jurisdictions and getting some insight into how their family justice works is always fascinating.

International News

European Union issues

The 2007 Hague Maintenance Convention
The EU will ratify this by the end of June 2013 and so it will enter into force with non-EU countries on 1.10.2013

No progress has been made on the issue of individual Member States being able to ratify Conventions independently of the EU (the competence issue). It remains the case that infraction proceedings could be taken against a Member State which ratified the 1980 Hague Convention with a new state independently of the EU.

The European Commission is looking to commission an expert to review the operation of BIIR and will then decide on whether a consultation is required

The Legal Affairs Committee of the EU Parliament is holding a meeting on 25th April 2013 on Family Protection, covering adoption, and abduction.


The European Court of Human Rights
The judgement  in X-v-Latvia is still awaited

China and the 1980 Hague Convention
The position seems to be that the Chinese are going to conduct an assessment study before considering implementation.

Pakistan
A judicial conference is taking place in Pakistan on 19th April 2013. Presumably the UK-Pakistan Protocol will be under discussion.

Habitual Residence and conditional or temporary moves

R-v-A: [2013] EWHC 692 (Fam) Parker J 27.3.13
In this case Parker J found as a fact that the mother and 2 children came to England for a temporary purpose and that their stay had been extended by agreement. The father remained in the US throughout and expected the mother and children to return in due course. However the children remained in England for over 2 years and a 3rd child was born in England.
The mother and all 3 children returned and spent several months in the US. Parker J found as a fact that this was presented by the mother as a permanent move.
The mother then removed the children to England and the father sought their return under the Hague Convention
The judgment is interesting because it concludes that despite being present in England for over 2 years the 2 children retained habitual residence in the US. Of particular importance were the fact that the father remained in the US throughout and that the purpose was a temporary one - even with extensions. The 3rd child could not be habitually resident in the US without ever having visited there: see the Court of Appeal decision in ZA. Had the father moved with them, even on a temporary basis, their habitual residence may well have changed - the decision of the CA in H-v-K would probably have required such an outcome.  
The judge also concluded that had she been wrong about the children maintaining their habitual residence in the US throughout their absence,   that when the children returned to the USA, ostensibly on a permanent basis they regained habitual residence and that the 3rd child acquired habitual residence very quickly.
A return was ordered.  

The report contains an thorough review of the authorities on habitual residence which is of interest. 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/692.html

Art 15 BIIR

RE T (A Child) [2013] EWHC 521
Mostyn J considered the working of Art 15 transfers. In doing so he reviews the forum conveniens cases.
He concludes amongst other matters that to make a transfer it must be shown that the other Member state is 'clearly the more appropriate forum'

BIIR: Prorogation under Art 12(3)

PB –v-SE  [2013] EWHC 647 (Fam) Cobb J 25^th March 2013

In this case Cobb J resolved the issue of whether prorogation of jurisdiciton was permanent or only for the lifetime of the particular proceedings concerned.

He concluded that prorogation endures until a final order is made in the proceedings in which jurisdiction was prorogued. It then comes to an end and jurisdiction has to be assessed for any new proceedings/applications according to the usual jurisdiction framework in BIIR. He relied on Art 12(1) and what was said by the UKSC in Re I.

Domestic Violence Protection: EU measures

The EU has reached agreement for a Regulation which will provide for the registration and enforcement of restraining orders across all Member States. Currently such orders are not covered by BIIR. They are covered in limited circumstances by the 1996 Hague Convention but only when they are granted under Art 11.
http://bit.ly/163iG4U

1996 Hague Convention: Protective Measures

The decision of the Court of Appeal on the use of protective measures in Art 13b cases and the facility to register them using the 1996 Hague Convention is reported on bailii: Y (A Child) [2013] EWCA Civ 129 (22 January 2013)

The case was referred back to the Court of Appeal in February when the court was asked to replace the undertakings with orders which would plainly have been capable of registration and enforcement in Cyprus; the position on undertakings had become clearer with the Cypriot lawyers advising that undertakings were not likely to be capable of enforcement. The Court of Appeal declined to replace the undertakings with orders and re-iterated that undertakings are measures.

The difficulty remains that 1996 HC Art 28 which provides that enforcement takes place in accordance with the law of the requested state. If there is no domestic equivalent in the requested state a question mark exists over whether the undertaking can be enforced and thus whether it can be considered an 'adequate' or 'effective' protective measure.

Of interest was the approach of the Court of Appeal to another commonly encountered undertaking - the non-prosecution undertaking. In this case a European Arrest Warrant had been issued after the date of the undertaking. The CA initiated a liaison with the Cypriot Hague liaison judge to seek to ensure the warrant was withdrawn. That liaison resulted in the A-G confirming the warrant would be withdrawn. Arguments about public policy (i.e. not interfering with the criminal process in another state) should not arise where the left-behind parent is prepared to offer non-prosecution. Furthermore if prosecution would lead to intolerability for the child that would be capable of giving rise to an Art 13b defence. The UKSC has made clear in Re E and Re S that the source of the harm is irrevant if in fact it arises. That would apply to abductors who refuse to return, to prosecutions and to situations where medical evidence shows the abductor's mental health is likely to deteriorate even though objectively protection can be achieved.

Queens Counsel

For those of you who might be interested below is the link to the newly appointed silks

It was posted on twitter last night:

http://www.thelawyer.com/news-and-analysis/practice-areas/litigation/bar-news-and-analysis/qc-appointments-slip-to-all-time-low-with-84-made-up/3001789.article

As it happens the author of this blog finds his name there.
Ceremony on 27th March 2013

1996 Hague Convention

The Court of Appeal has ruled that undertakings are 'measures' within the meaning of Art 11 1996 HC. They can therefore be subject to recognition and registration for enforcement under Article 24-6. The Court of Appeal did not address the issue of how that was to be done in a country which did not recognise undertakings within its own domestic

[2012] 2 FLR 1191 Re C (Jurisdiction and Enforcement of Orders Relating to Child) [2012] EWHC 907 (Fam) FD, Moylan J, 22 March 2012 BIIR – Enforcement – Conflicting opinions of English and Belgian court as to jurisdiction and whether a return order should be made – Lis pendens – Whether the English court was already seised of the matter when the Belgian court made a return order

Protective Measures and expert evidence

Cobb J yesterday considered the issue of evidence about protective measures in an EU case. The Applicant wanted to get info from Central authority and the Respondent wanted info also from lawyer. Cobb J thought the new FPR 25 and PD applied as evidence of law and its application was probably expert evidence. He eventually ordered that the CA evidence be filed (without determining whether that was expert evidence) but would not give permission to rely on a Lithuanian lawyer at that stage and observed that an application could be made pursuant to FPR 25 once the Central Authority evidence was in .

Interestingly there is still no CJEU decision on what 'adequate protective measures' means nor is there a definitive English decision although of course the UKSC said that protective measures need to be effective to ameliorate the Art 13b risk identified. 

Protective Measures and the 1996 Hague Convention

Re Y, Court of Appeal 22.1.13
The Court of Appeal concluded that undertakings fall within the definition of 'measure' within Art 11 of the 1996 Hague Convention and can therefore be registered and declared enforceable under Art 24-26.
Whilst this is uncontroversial for countries who have undertakings as part of their domestic toolkit it does not address the situation of the country which does not recognise them. Because protective measures are to be enforced in accordance with the procedures of the enforcing state, if they have no means of enforcing undertakings they will not be capable of enforcement.
Further guidance on this issue will no doubt follow from one court or another.