German-British Judicial Conference
Trier, 24-29 September 2002
Brussels II and IIA: the experience of the Solicitors
Family Law Association of England and Wales
The Solicitors Family Law Association
I am pleased to be invited as the representative
of family law solicitors in England and Wales to address this distinguished
Judicial Conference. I will start with a commercial for the Solicitors
Family Law Association. The SFLA was formed in London in 1982 by a
few concerned family lawyers who believed that an aggressive approach
to family law proceedings and unnecessary reliance on the court process
exacerbate the distress of the family members and increase legal costs.
A Code of Practice was developed, designed to promote a conciliatory
atmosphere in which matters are dealt with in a sensitive, constructive
and cost-effective way. There are now over 5,000 SFLA solicitors in
England and Wales. Through its National Committee, the SFLA liaises
with government on law reform and sets high standards of good practice
in family law through training, publications and an accreditation
scheme for highly experienced specialist family lawyers.
The Code of Practice requires members to encourage clients to understand
that a family dispute is not a contest with winners and losers but
a search for fair solutions. We aim to ensure that our clients understand
that the best interests of children should be put first and that an
effort should be made to reduce the emotional tensions inherant in
the family law context. The Code sets out guidance for the solicitor’s
relationship with the client, with other solicitors, with a person
who does not have a lawyer and with children particularly when the
child is the client.
This year the Law Society of England
and Wales, in cooperation with the SFLA and United Kingdom government
departments, published the Family Law Protocol, a guide for family
lawyers which is largely based on the SFLA Code of Practice and other
SFLA guidance publications.
The Scope of this Paper
Although I have been asked to present
a paper on the initial experience of family lawyers in England and
Wales on the working of the Brussels II Regulation, I have had the
advantage of reading the excellent commentary by my learned friends
Nicholas Mostyn QC and Tim Amos and can see that they have already
said quite a lot about our concerns, some of them very serious concerns.
I agree with most of what they have written. I think that, in the
circumstances, my presentation will be more helpful if I focus on
the planned reforms to be introduced by the Brussels IIA Regulation.
Professor Nigel Lowe will say more about this on Friday, and, as I
anticipate that his paper will be academically far superior to anything
I can offer, I propose to outline some points, good and bad, which
are of particular interest to the hard pressed family law solicitors
of England and Wales. After all, solicitors are the first point of
reference for clients faced with the conundrums of Brussels II and,
as gatekeepers to the family law justice system, I think we share
their pain more than our eminent colleagues on the Bench, at the Bar
and in the Law Schools.
Brussels II – Background
When the Brussels II Regulation came
into effect in the United Kingdom and elsewhere throughout the European
Union (except Denmark) on 1 March 2001 most of the lawyers in the
United Kingdom jurisdictions (England and Wales, Scotland and Northern
Ireland) were caught by surprise. My Scottish colleague Sheila Barker,
who presents a paper to this Conference about family mediation, has
co-written, with solicitor Shona Smith, an article published in March
[2002] International Family Law confirming that there was confusion
in Scotland about Brussels II, just as there was south of the border.
The article highlights some difficulties encountered in Scotland and
makes suggestions for avoiding similar problems arising in the future.
In England and Wales the SFLA took the
lead by publishing Guidance Notes on the correct Brussels II procedure
in March and April 2002 (Brussels II – It’s Here April
[2001] International Family Law page 7). The SFLA International Committee,
of which I am Chair, also monitored enquiries from concerned solicitors
throughout our jurisdiction. There was amazement that the new law
had been implemented by direct EC Regulation rather than through an
anticipated Convention: the Brussels regulation process is foreign
to English family lawyers and there were grumblings about loss of
national sovereignty.
Since 1 March 2001 there have been surprisingly
few serious problems with Brussels II. Solicitors were initially hampered
by the lack of new court forms until these were produced by the Court
Service in September 2001. Nevertheless, we muddled through in the
best English tradition. The staff and judges at the Principal Registry
of the Family Division of the High Court in London and local divorce
County Courts worked with solicitors to make the system function.
Initially, our main concern was the
pressure to issue divorce proceedings first to secure jurisdiction.
In England and Wales we have a culture which requires the solicitor
for a client proposing to commence family law proceedings to write
a letter to the proposed Respondent before issuing proceedings, with
a view to seeking an agreed course for the litigation. This principle
is enshrined in the SFLA Code of Practice and the Law Society’s
Family Law Protocol. This practice has been modified to allow solicitors
to issue proceedings without warning if this is in the interests of
the client, particularly if the solicitor anticipates that warning
the proposed Respondent will lead to proceedings being issued first
in an inappropriate foreign jurisdiction. Some English family lawyers
are very unhappy with this development.
Mr Mostyn and Mr Amos in their paper
say they could find only one reported case on Brussels II (in England
and Wales) but I have found three which are relevant besides the case
of Sulaiman v Juffali [2002] 1 FLR 479 which they cite.
On 13 June 2001 in Ikimi v Ikimi [2001]
EWCA Civ 873 the Court of Appeal (Thorpe and Clark LJJ and Holland
J) upheld the important concept that it is possible for a married
couple to have two homes of habitual residence in two jurisdictions
at the same time. Although this was not a Brussels II case because
the homes were in England and Nigeria, there are significant implications
for cases arising between Brussels II Member States. Do jurisdictions
besides England and Wales recognise the concept of two concurrent
habitual residences?
On 14 January 2002 in A v L (Jurisdiction:
Brussels II) [2002] 1 FLR 1042, HHJ Garner decided that, where a husband’s
appeal against a Spanish court order allowing the wife to relocate
with the child to England was still pending, the Spanish court continued
to be seised of jurisdiction under Article 11. Therefore the wife’s
subsequent application to the English High Court was stayed on the
basis of declined jurisdiction under Article 11 (3). HHJ Garner also
declined to exercise discretion to make a provisional order in respect
of the child under Article 12.
On 11 February 2002 in Breuning v Breuning
[2002] EWHC Fam 236, Bennett J dismissed a wife’s divorce petition
because she could not establish a jurisdictional basis of English
domicile or habitual residence. His Lordship also held that the forum
conveniens test of balance of fairness, including convenience, favoured
the husband’s divorce proceedings in South Africa, where the
parties had a substantial connection. Although this was not a Brussels
II case, the judgment in instructive on what constitutes habitual
residence and domicile under English law.
The central question is whether the
certainty with respect to jurisdiction provided by Brussels II is
worth the risk that divorce and related proceedings will be pursued
in a clearly inappropriate jurisdiction. To take a hypothetical example,
say a German family has been living in England for many years, the
husband having been transferred from Frankfurt to London by his employer.
All the family assets are in England and the husband’s income
is earned in England. Suppose the husband is sent back to Frankfurt
for 6 months by his employer, leaving the wife in the London home
and the children in London schools. Suppose he then issues divorce
proceedings in Germany after he has been there 6 months, as he is
perfectly entitled to do under Brussels II. He then returns to live
and work in England and moves in with his secretary. Brussels II says
that all divorce related proceedings must take place in Germany. This
seems quite illogical. Mr Mostyn and Mr Amos suggest a possible solution
in their papers, but will it work?
There will be hard cases under Brussels
II, and there will be victims of the system. Is the loss of discretion
to stay proceedings on a forum conveniens basis too high a price to
pay for certainty? Should there be more scope for discretion?
Brussels IIA – For Better
or For Worse?
On 14 May 2002 the United Kingdom Lord
Chancellor’s Department wrote to the SFLA requesting comments
on the EC proposal for a new Council Regulation modifying or repealing
Brussels II. Later that month a delegation of lawyers from the SFLA
and the Family Law Bar Association (the barrister equivalent of the
SFLA) went to Brussels to meet with representatives of the European
Commission and the European Council to discuss the proposed changes.
Brussels IIA proposals include widening the scope of Brussels II to
cover all children, not just the children of the parties to the marriage,
and to modify the effect of the 1980 Hague Convention on the Civil
Aspects of International Child Abduction, particularly the procedures
for dealing with defences to the return of the child under Article
13. What we learned in Brussels informed the SFLA response to the
Lord Chancellor’s Department. What follows is a summary of that
response.
It is against a background of commitment
to fostering laws which encourage a conciliatory approach that the
SFLA supports those features of the proposed Brussels IIA Regulation
which:
1.Protect the best interests of children
in family disputes.
2.Reduce the scope for conflict between
family members.
3.Clarify legal responsibilities and
rights so that family members and their legal advisors can more easily
agree about the principles on which dispute resolution will be based.
4.Encourage conciliation and mediation,
rather than litigation, as a way to resolve disputes between family
members.
5.Empower family members to resolve
disputes by agreement.
6.Provide family members with the means
by which they can obtain professional help to assist them to resolve
disputes, including adequate public funding for:
Conciliation and mediation services.
Court services and court support services.
Legal advice and representation services.
Central Authorities and other facilities for international cooperation
between those who provide conciliation/mediation services, court services
and legal services.
The proposed Regulation has been examined
in the light of the principles outlined above.
General Comment
1.The SFLA recommends that the United
Kingdom should opt in to the proposed Regulation. However, we have
concerns and reservations about some of the provisions in the Regulation
and therefore recommend that those points of concern should be amended,
or, if amendment cannot be agreed, that the provisions in question
should be deleted from the text of the Regulation before it is approved
by the Council.
2.Subject to the above proviso, the
SFLA supports the general principles on which the proposed Regulation
is based as set out in paragraphs (1) through (25) of the Recitals
to the Regulation.
3.The SFLA is aware of proposals to
expand the membership of the European Union by adding up to 10 new
members in the near future and is conscious of the possibility that
some aspects of the family law systems in potential new Member States
may not be fully compatible with the family law systems of existing
Member States. This causes us to urge particular caution in relation
to provisions in the proposed Regulation which provide for mutual
recognition and enforcement of access orders, international child
abduction and adequate levels of public funding for conciliation/mediation
services, court services, legal services and Central Authorities and
similar facilities.
Comments on selected main provisions
the proposed of Brussels IIA Regulation
Article 3 Right of the child
to contact with both parents
This could lead to an increase in the
number of disputes over contact/access and may also lead to unacceptable
restrictions on the freedom of movement of children and parents with
residence/custody of them. When similar legislation was introduced
in Australia in 1996 there was, in the words of Chief Justice Alastair
Nicholson of the Family Court of Australia, “an explosion”
of litigation initiated by fathers (Contact Conference Report, 27
March 2002, London, page 94).
This Article should be amended in such
a way as to discourage an explosion of litigation.
Article 4 Right of the child
to be heard
The SFLA strongly endorses this principle
which will need to be backed up with adequate public funding of legal
representation for children, conciliation/mediation and court services.
Article 11 Interim continuing
jurisdiction in state of child’s former residence
This is a good practical measure but
its meaning should be clarified in more particular language to reduce
the risk of jurisdiction disputes.
Article 12 Prorogation of jurisdiction
The SFLA supports the general principle
that families should be empowered to make agreements, particularly
in relation to which jurisdiction or jurisdictions will govern family
relationships. The present drafting appears to allow parents to choose
jurisdiction in relation to matters concerning parental responsibility
but not for divorce, nullity or legal separation. The SFLA believes
parties to a marriage should be empowered to decide what jurisdiction
should govern their divorce, nullity or legal separation, subject
to the proviso that the court must find that assuming jurisdiction
is in the best interests of any children concerned.
Articles 21-24 Child abduction
The effect of these proposals would
be to reduce the status of orders currently made under Article 13
(b) of the Hague Abduction Convention (grave risk, child’s objection)
to mere provisional protective measures, subject to the power of the
court of the child’s habitual residence to overrule the provisional
order and require the return of the child. This is a radical change
which substantially weakens the Article 13 (b) defence.
The SFLA does not support these draft
regulations in their current form. We are concerned that children
may be put at grave risk, or that their mature and considered objections
to return will be disregarded or given insufficient weight. We are
aware that, in the past, there have been examples of some countries
using Article 13 (b) to refuse the return of children to their jurisdiction
of habitual residence in circumstances which have caused concern among
signatories to the Hague Abduction Convention. These past difficulties
could be revived when new Member States join the EU.
The experience of SFLA members is that
the Hague Abduction Convention works well, both within the EC and
as between EC Member States and non-members. We are aware that the
Convention works particularly effectively between the United Kingdom
jurisdictions and those jurisdictions which share a similar common
law heritage, for example, Australia and New Zealand. Central to this
effectiveness is close cooperation and good understanding between
court services, including judges, Central Authorities and lawyers
in the respective jurisdictions.
Relative to other international instruments,
the Hague Abduction Convention can be held up as a good example of
how international law can work for the benefit of families. However,
there is always room for improvement, particularly in an area which
involves complex issues of legal and culture differences affecting
parental rights and responsibilities and the protection of the best
interests of the child.
The SFLA wishes to preserve as far as
possible what is good about the Hague Abduction Convention while seeking
to harmonise its operation with Brussels IIA within the context of
the EC. The EC should consider how international cooperation between
Member States can be improved not just in the difficult area of international
child abduction but also to facilitate mutual recognition and enforcement
of laws relating to parental responsibility, custody and access.
The Hague Abduction Convention is founded
on the premis that the jurisdiction of the child’s habitual
residence is most appropriate to determine what is in the child’s
best interests, subject to certain narrow exceptions such as are found
in Article 13 (b). A considerable body of case law on the Hague Abduction
Convention has developed in many jurisdictions including the UK jurisdictions.
The SFLA urges that, so far as is practicable, the draft Brussels
IIA Regulation should leave this valuable body of jurisprudence undisturbed
and build on it rather than introduce new concepts which may create
more problems than they solve.
In the context of international maintenance
enforcement it is notorious that the provisional order procedure can
lead to a proliferation of litigation in two jurisdictions, with the
case being batted back and forth for provisional proceedings and confirmation
proceedings, sometimes referred to as ping pong litigation. This unnecessarily
increases delay, cost, uncertainty and anxiety for the families involved.
The SFLA therefore believes the provisional protective measures should
be removed from the draft Brussels IIA Regulation. If this is not
achievable, the Regulation should be amended to incorporate what in
England and Wales are referred to as safe harbour orders to protect
the welfare of children and the interests of abducting parents, who
are often the parents with the primary care of children.
For example, the courts of the jurisdiction
of the child’s habitual residence, in overruling a provisional
protective order made in a jurisdiction to which the child has been
abducted, should be required to ensure that the Central Authority
will provide the following safeguards before the parent and child
are returned:
This list of safe harbour orders is
an example only and is not intended to be exhaustive.
The safe harbour orders should remain
in place only until such time as the abducting parent and, if appropriate,
the child, have had an opportunity to obtain legal representation
and prepare for an inter partes hearing at which all relevant evidence
can be considered by the court of the child’s habitual residence.
Articles 45-49 Enforcement of
access
The SFLA supports the principle of reciprocal
recognition and enforcement of access orders where such orders are
made inter partes, or with the consent of the parties, in proceedings
in the jurisdiction of the child’s habitual residence. We would
not support such reciprocal recognition and enforcement in the case
of default orders for access, that is, orders made in proceedings
where the party ordered to grant access has not had an opportunity
to be heard.
We question whether reciprocal enforcement
should be limited to parents only. For example, there would appear
to be no reason in principle why a grandparent or other relative who
has been granted rights of access in legal proceedings in the child’s
jurisdiction of habitual residence should not have such rights enforced.
We are aware that the concept of what is a parent is changing in the
context of surrogacy arrangements, assisted conception, fostering
and adoption. For example, in Australia and Scotland earlier this
year courts have granted sperm donor fathers rights of access to their
children against the wishes of the mothers.
The provisions should be amended to
make it clear that enforcement of access should not extend to penalising
a father who refuses to have access with his child. We are aware of
a case decided in Germany in 2000 where a father was faced with a
fine of DM 50,000 if he did not have regular contact with his child.
The SFLA would not want to see such an order being enforced automatically
in England and Wales.
The drafting of these provisions should
also be reconsidered in the light of recent research in the United
Kingdom, Australia and elsewhere on how to make access work effectively
(for example, Making Contact Work, the Report of the Children Act
Subcommittee of the Lord Chancellor’s Advisory Committee on
Family Law and the paper by Chief Justice Nicholson in the Contact
Conference Report, referred to above in the comment on Article 3).
The interrelationship between the proposed
provisions and Article 21 of the Hague Abduction Convention should
also be taken into account.
Conclusion
The SFLA supports the principles upon
which the proposed Brussels IIA Regulation is based. However, the
concerns we have expressed should be reflected in substantial re-drafting
of the provisions referred to above. If implemented in its current
form the Regulation is likely to increase the scope for disputes about
children and leave families with inadequate resources to help them
deal with those disputes. The interests of children could be seriously
prejudiced as a result.
David Truex
20 September 2002
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