Latest Migration Statistics

The latest provisional data from the Office for National Statistics show Net migration to the UK rose to 212,000 in the year to September 2013. Some 532,000 people immigrated to the UK in the year ending September, up from the 497,000 people who arrived during the previous year, while 320,000 emigrants left the country, down from the 343,000 the previous year. The Office for National Statistics said the net flow - the numbers moving here minus the numbers leaving the UK - rose from 154,000 in the previous year. The increase has been driven by a big increase in the number of European Union citizens coming to Britain. There was an increase in new arrivals from Poland, Spain, Italy and Portugal. The number of EU citizens arriving in the UK rose to 209,000 from 149,000 the previous year, the ONS said. But immigration of non-EU citizens decreased to 244,000 in the period, down from 269,000 the previous year. In 2012 there was a net flow of 176,000 Long-Term migrants to the UK in the year ending December 2012. 497,000 people immigrated to the UK and 321,000 emigrants left the UK and the previous falls seen since June 2011 have gone into reverse. Immigration of New Commonwealth citizens decreased significantly from 151,000 in the year ending December 2011 to 97,000. Of the 497,000 arrivals, 179,000 immigrants came to the UK for work related reasons and 181,000 people migrated away from the UK for work related reasons The number of visas issued, excluding visitor and transit visas, was 501,840 in the year ending June 2013. 562,000 National Insurance numbers (NINos) were allocated to non-UK nationals in the year to March 2013, a decrease of 6% on the year to March 2012. In 2011 Long-Term migration statistics show that 566,000 people immigrated to the UK in 2011 with 351,000 people emigrating and net migration was 215,000. In 2012 nearly half of all babies were born outside marriage/civil partnership (47.5%), compared with 47.2% in 2011 and 40.6% in 2002. The percentage of live births in England and Wales to mothers born outside the UK continued to rise in 2012, reaching 25.9% compared with 25.5% in 2011 and 17.7% in 2002. The proportion of births to mothers born outside the UK has increased every year since 1990 when it was 11.6%. Not surprisingly these figures are mirrored in the available statistics for court cases with an international element. The Annual Report of the Office of the Head of International Family Justice 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 2012 report shows that, a. In 2012 there was a 40.5% rise in applications for assistance to 253. 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. b. 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. c. 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. d. 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. e. 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. The figures from the International Child Abduction and Contact Unit also show a long term upward trend of applications made in respect of in-coming and out-going applications in respect of ‘abducted children’. Applications under the 1980 Hague increased by 100% in the decade to 2008 and increased further in 2011 to 249 applications, compared with 200 applications in 2008, and 142 in 2003.

Service Abroad: The Foreign Process Section weblink

For anyone dealing with service of proceedings abroad under the EU Service Regulation or otherwise here is a useful link to the Foreign Process Section of the QBD which is the designated authority for service under the Regulation. They can provide advice on how to serve and should issue certificates of service or non-service. http://www.justice.gov.uk/courts/rcj-rolls-building/queens-bench/foreign-process

BIIR, Jurisdictional issues: Court first seised and lis pendens

In I-v-G [2013] EWHC 4017 (Fam) Mostyn J considered the working of Article 19 of BIIR and stayed English proceedings pursuant to Article 19(2) of BIIR to allow the Italian court to determine whether it was first seised of proceedings concerning the child. In the course of the judgment Mostyn J had to consider a number of important issues in relation to the operation of Article 19. Firstly he had to determine whether an order granting residence and temporary leave to remove a child was a 'final' order so as to terminate the proceedings or whether they remained in being and thus the court remained 'seised'. Mostyn J accepted our submissions that an application for temporary leave to remove was brought to an end when an order granting temporary leave to remove was made. Thus the English court was no longer seised of proceedings. The effect of this meant that proceedings issues subsequently in Italy rendered the Italian court first seised and so on the face of it the English court had to stay the proceedings brought by the mother in England, but after the father's Italian proceedings. The mother submitted that although the Italian court was chronologically first seised the father had failed to serve and therefore the Italian court was not legally first seised; Article 16(1)(a). Mostyn J accepted that (applying ECJ/CJEU case-law) that whether adequate steps to serve had been taken was a matter for the Italian court to determine. He therefore stayed the English proceedings. Other issues which he commented on were A. The need for clarity of drafting in orders with an international dimension, in particular in relation to whether the order was final or provisional B. He condemned the growing practise of post-hearing applications being made by e-mail for judges to reconsider issues determined at court. The mother has appealed and a permission hearing is listed for 19th February 2014. The full judgment can be found on BAILII at: http://www.bailii.org/ew/cases/EWHC/Fam/2013/4017.html

Hague Abduction Conventions enters into effect with Japan

Japan ratified the Convention on 24th January 2014 and it enters into force on 1st April 2014. Countries who were Members of the Hague Conference at the time the 1980 Hague Convention was adopted can subsequently ratify. This means that the Convention automatically enters into effect between that country and all other members at the relevant date. For countries who were not members at the relevant date they can accede to the Convention. Such accessions have to be accepted on a country by country basis. Hence South Korea has acceded but the Convention is not in force between UK and Korea because we have not accepted their accession. The Convention will enter into force between Japan and all Member States of the European Union on 1 April 2014: - With regards to Member States of the European Union that ratified the Convention, it will enter into force “automatically”. This applies to Austria, Belgium, Croatia, Czech Republic, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Slovakia, Spain, Sweden, UK. - For those Member States having acceded to the Convention, Japan would need to declare acceptance of their accession, which it has done in the case of Bulgaria, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania and Slovenia. You can find more accessions that Japan has accepted in the spreadsheet showing acceptances of accessions to the Child Abduction Convention which is available at the Hague Conference website (see here).

In the Matter of E: further thoughts

In my last post I analysed the President's decision in The Matter of E (A Child) [2014] EWHC 6 (Fam) in which the Sir James Munby considered the obligations imposed by the Vienna Convention on Consular Relations. One of these is that where a national is detained his consulate must be informed. Another is that where a guardian is appointed for a child the consulate must be informed. That would seem to mean that if (a) the tipstaff executes an order and takes a person into custody, (b) the court joins a foreign national child as a party that steps should be taken to inform the relevant consulate.

Japan becomes 91st signatory to 1980 Hague Convention

On Friday 24 January 2014, Japan became the 91st Contracting State to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Japan’s instrument of ratification was deposited by H.E. Mr Masaru Tsuji, Japan’s Ambassador to the Netherlands, who was accompanied by several other officials. The broad delegation underlines the importance that the Japanese Government attaches to this event. Japan’s ratification of the Convention is indeed a milestone in the history of the Convention, which will provide a key tool to return children victims of cross-border abduction involving a Japanese parent. The Convention will enter into force for Japan on 1 April 2014. In May 2013, the Diet had approved Japan’s compliance to the treaty, sending out a clear indicator that the country was steadily moving toward participation. Until today, Japan was the only country in the Group of Eight (G8) that has not affirmed the 1980 Hague Child Abduction Convention. The following month (June) Japan’s Parliament enacted a law stipulating domestic implementation procedures for the Hague child abduction treaty. Japan’s Parliament established procedures requiring the country to create a Central Authority under the auspices of the Foreign Ministry. The Central Authority’s responsibilities include the tasks of locating children who have been abducted and encourage families involved in international parental child abduction claims to settle disputes through consultations. If the consultations fail, family courts in Tokyo and Osaka specifically trained in 1980 Hague Child Abduction Convention matters will decide on matters. The Central Authority will be staffed with legal experts in international private law as well child psychologist and domestic violence counselors. A third Hague Court location could later be added.

EU Nationals and English Care Proceedings: In the Matter of E (A Child) [2014] EWHC 6 (Fam)

The President of the Family Division, Sir James Munby has delivered a judgment giving guidance on the approach to jurisdiction and practice in care proceedings in respect of children who are nationals of other EU Member States. http://www.bailii.org/ew/cases/EWHC/Fam/2014/6.html The case involved care proceedings in respect of a child who was a Slovakian national. There has been considerable parliamentary and media interest in Slovakia over the last 2 years or so where children of Slovakian origin have been the subject of English care proceedings. This in part arises from the difference between England and much of Europe in that a care order will often lead to adoption and a complete termination of the child-parent relationship which is not possible in many other EU jurisdictions. As a result there have been a number of cases where the Slovakian authorities have been involved in seeking to intervene in English care proceedings or to make representations on issues connected with jurisdiction and transfer. See Re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) [2013] Fam 253; LA v ML & Ors [2013] EWHC 2062; (Fam); LA v ML & Ors [2013] EWHC 2063 (Fam) . The President made the following observations. The EU dimension Sir James emphasises time and again that within the European Union respect for the law and procedures of other Member States is fundamental to the proper operation of BIIR; even if those laws and procedures seem very different to our own. We must assume that child protection and judicial services are no less competent than our own. (As a matter of practise, if in fact it could be shown that in that city/region/state they were deficient it must be possible to rely on this but it would have to be fact specific rather than based on generalisations.) Jurisdiction Although the Children Act 1989 does not specify the jurisdictional basis of care proceedings the effect of BIIR (which applies to care proceedings as much as private law proceedings) is that care proceedings must be based on one of the jurisdictional grounds set out in Art 8, 12, 13 and 14 and that Arts 17 and 20 must also be considered. Thus the court must first ask: is the child habitually resident here or is the child habitually resident in another EU Member State. If the child is habitually resident in another Member State then the English court does not have jurisdiction and must pursuant to Article 17 decline to exercise jurisdiction although protective measures can be taken under Article 20 and a request for a transfer of jurisdiction could be made under Article 15. If the court cannot establish where the child is habitually resident but the child is present in England then the court may have jurisdiction under Article 13 (presence). In Re B [2013] EWCA Civ 1434 care proceedings had proceeded for a year and ultimately the Court of Appeal concluded that the child had been and might still be habitually resident in Sweden; hence they issued an Article 17 declaration declining jurisdiction. Guidance: Munby said in future in cases with a European dimension the court should (i) set out the basis of its accepting or rejecting jurisdiction (ii) the basis upon which it has decided to or not exercise its powers under Article 15 in relation to a transfer of jurisdiction. Judicial Liaison and Exchanges of Information The Court of Appeal had pointed out in Re B (above) the limits to judicial liaison both in the Hague Network and the European Judicial Network. In this case Munby P emphasised the importance of Article 55 BIIR in securing exchanges of information. The relevance of nationality Sir James drew attention to the provisions of the Vienna Convention on Consular Relations which imposes obligations where nationals of another state are either ‘detained’ or where a ‘guardian’ is appointed for a minor or an adult who lacks capacity. The primary obligation is to inform the consular authorities of the position. In the case itself Munby P permitted a member of the consular staff to attend all hearings in a non-participatory role. Guidance for judges: The consular authorities for the country concerned should be informed where; - A child national is subject to a secure accommodation order ( ‘detained’) - A child national has had a guardian appointed. In addition the court should restrict communication between a national and his consular authority and section 12 AJA should not be permitted to have this effect Permission should be granted for a consular official to attend hearings which would be private and to obtain transcripts. Reporting Restrictions In imposing reporting restrictions involving a foreign national great care must be taken not to attempt to control foreign media. A parent cannot be prevented from publishing what they like in foreign print or broadcast media and can publish on the internet what they like provided it is not in the English language. Munby P referred to the precedent for a reporting restriction order that he set out in Re P[2013] EWHC 4048 (Fam).