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.