How Judges Can Support the Operation

Washington USA - September 2000

The Rt Hon Lord Justice Thorpe:

It is perhaps trite to say that the judges of the sixty member states best support the operation of the 1980 Convention by the work that they do in court. But there is a wide spectrum of judicial performance. Abduction cases require firm case management including strict time-tabling. Each jurisdiction will have its own structure but the English model is worth inspection. A Convention application can only be issued in the High Court for trial by a judge of the Family Division. In practice this means issue and trial in London. Trial should be achieved within six weeks of issue. Because of judicial vacations this is not always possible but it must remain a real target. In deciding cases, and in particular in assessing an Article 13 defence, the judge should have full regard to the primary purpose of the Convention.

From the decision of the High Court judge an appeal to the Court of Appeal cannot be brought without the permission of either the judge of trial or the Court of Appeal. If permission is granted again the appeal should be determined within six weeks of commencement. As the judge with responsibility for the management of family appeals I can ensure that this target will almost invariably be met. There is a further right of appeal to the House of Lords, our supreme court, but again only with permission from either the Court of Appeal or the House of Lords. Permission is very seldom granted by the Court of Appeal and only very sparingly by the House of Lords. Time-tabling in that court is more difficult but arrangements have been made between the Court of Appeal and the House of Lords to ensure that any application for permission to appeal an order of return made by the Court of Appeal will be given priority. As an instance in the case of Re H (Minor) our court allowed a father’s appeal and ordered the child’s return to the Republic of Ireland on 11th November 1999. By 8th December the House of Lords had granted permission to appeal, heard oral argument and dismissed the appeal, although reasons were not given until 3rd February 2000.

Beyond time-tabling it is the responsibility of the judge to supervise the preparation of the application for trial to ensure that the application is neither frustrated nor delayed by the introduction of unnecessary issues or evidence. It is only in the rarest cases that oral evidence should be admitted. The party’s entitlement to justice is satisfactorily met by the opportunity to file written statements of evidence, as detailed as may be necessary, on all relevant issues. Again it is only in rare cases that the court should admit expert evidence as to the wishes or the psychological state of either of the parties or the child in question. The judge must always be astute to ensure that spurious Article 13 defences are not developed in an endeavour to cloak or divert from adult frailty or selfishness.

However apart from doing good work in case management and in judgment the judges of the member states have a rich opportunity to promote the successful operation and development of the Convention. The Convention naturally relies upon the central authority in each jurisdiction to provide the essential administrative service and to develop collaborative relationships with central authorities in other relevant jurisdictions. The Hague Special Commissions to enable representatives of central authorities to meet and to consider practice issues are plainly important aids to development and improvement. However in my opinion the judiciary of the member states have constituted the great undeveloped resource. The 1998 de Ruwenberg judicial conference was a very significant innovation. For the first time each member state was invited to send an appropriate representative of its judiciary. Although only half the number invited attended, the conference presented an obvious opportunity for delegates to get to know their counterparts in other jurisdictions and to see comparative strengths and weaknesses in structure, administration, practice, policy and law in other jurisdictions. Building on this foundation can be confident and sure. From the conference itself there emerged the Permanent Bureau’s notion of a judicial newsletter. This has already developed from an idea into an actuality. The more individual jurisdictions contribute to future newsletters the more valuable will they become.

Another important proposal that emerged at De Ruwenberg was that each member state should appoint an individual liaison judge to take responsibility for external communication. Obviously judges cannot share the responsibility for decision making in any case. However a judge may have a need for information as to local conditions, local laws or local resources in a state to which he is contemplating return.

Alternatively he may be anxious to ensure that the family justice system in that state will tackle immediate issues without delay and he may even be anxious to identify those issues which he perceives as requiring early determination. The availability of a register of the appointed liaison judges would enable the judge contemplating return to make communication by telephone, fax, or e-mail. Appropriate communications have considerable potential for promoting child protection and welfare and for reducing the difficulties that are inevitable where there are significant differences of domestic law and practice between the adjudicating state and the state to which return is sought.

As a practical illustration of my proposition may I tell you a story of the recent appeal of Re H concerning the child abducted to England from the Republic of Ireland? There was much dispute as to Irish law and practice and each side relied on the evidence of an eminent expert. Naturally they disagreed on almost all crucial issues. In the course of argument a member of our court drew attention to an aspect of the earlier Irish proceedings that had not been advanced by either expert. I saw on one of the Irish orders a direction, the special terms of which clearly might carry the same meaning as our special term ‘liberty to apply’. I therefore telephoned Mary Laffoy, the High Court judge who had represented Ireland at the De Ruwenberg conference. She at once confirmed that the term of the order did indeed have just that meaning. The point, although by no means decisive of our appeal, had a material bearing on the outcome.

Jurisdictions that have already nominated their liaison judges include England and Wales, Australia, New Zealand, China Hong Kong and Cyprus. Other nominations from European civil law states are pending.

Of course the nomination of a liaison judge is particularly easy for a jurisdiction such as England and Wales where there is a distinct family justice system with specialist family judges at all levels of the system. It is also easy for a jurisdiction, such as ours, where Hague applications are centralised. Clearly it is not so easy for a jurisdiction, of which the USA is the most significant example, where for family justice state law predominates. This is an issue which I hope can be considered at this conference and it is extremely encouraging to see the importance which the USA attaches to the development of the Convention, a commitment which is abundantly proved by the organisation of this international meeting.

May I now instance another role for the specialist judiciary which our centralised and specialist family justice system has enabled us to pioneer? The head of our family justice system is the President. From that title you in the USA will readily understand the importance which we attach to the office. During the time of our former President, Sir Stephen Brown, an international family law committee was set up, composed of judges, barristers, solicitors, academics and representatives of government departments, all of whom shared a particular interest in or concern for the international dimensions of family law and practice. Amongst the civil servants we have always had representatives of our central authority, of the Lord Chancellor’s International Division, the Lord Chancellor’s Family Policy Division and the Foreign and Commonwealth Office. This committee has proved the ideal medium for promoting international liaisons. As an instance of its fruitful working, I tell you that in the mid 1990’s there were obvious difficulties in the operation of the Convention between England/Wales and Germany. This was a particularly serious problem given the size and importance of our respective jurisdictions within the European Union and the resultant number of cases springing from the unilateral movement of children between the jurisdictions. Statistics can of course be thoroughly misleading but the statistics certainly suggested that England was then much readier to return abducted children to Germany than Germany was ready to return abducted children to England. Building on strong academic relations between the University of Cardiff and the University of Frankfurt an Anglo/German family law judicial conference was agreed between the Lord Chancellor’s Department and the German Ministry of Justice. As the promoters of the conference we were happy to entertain the German delegation in the west of England converging on Dartington Hall in Devon for the professional exchanges. Over the course of 48 hours of intensive work it proved possible to identify with reasonable certainty the root cause of the problem. Whereas in our jurisdiction all applications must be issued and determined in London by a court consisting of only sixteen specialist judges, in Germany there were over 300 courts in which applications might be issued and determined. Individual judges had no opportunity to develop experience and expertise. Some judges said that they had never had an application, others said that they had not had more than one. Furthermore within the German system lay a deeply rooted tradition that the judge would see, and often discuss outcome, with the children in the case, even if of preschool age. There wire clear instances of judges being influenced by such discussion and then preferring their perception of the child’s wishes or the child’s welfare to honouring the obligations arising out of Germany’s ratification of the Convention. One obvious solution was to restrict Convention applications, as international business, to the superior courts of the Lande. This restriction would reduce the number of courts with jurisdiction from over 300 to about 25.

It is easy to identify reforms of law and practice in the field of family justice which would produce beneficial change almost beyond argument. However experience in our jurisdiction has led me to the regretful conclusion that translating the proposal into action is at best a frustratingly slow business. Within our constitution the government of the day seems increasingly disinclined to find legislative time for family law measures unless the change is perceived as vote winning or unless the most powerful sections of the press are campaigning for it. Germany appears to have a more rational ordering of its legislative machinery. The jurisdictional reform limiting Hague business to the courts of the Lande had passed into law and come into force within about two years of the Dartington conference. Had the need for reform been identified in our jurisdiction I doubt that it would have been accomplished so swiftly.

I believe that experience gained from the 1997 Dartington conference can claim a further success. There have for some time been jurisdictional difficulties between France and Germany and agreement was reached that a solution to these difficulties should be sought at a Franco/German judicial conference, attended by two other jurisdictions, Italy and Holland, to hold the ring. The conference took place at De Ruwenberg between Saturday 3rd and Tuesday 6th June. There were ten German judges plus two representatives of the Ministry. There were twelve French judges, seven Italian and five Dutch. The conference achieved five agreed conclusions. All five are relevant to my theme, conclusions four and five being of particular significance. It is therefore worth setting out these conclusions in full:

1. The seminar has been an important event in establishing mutual understanding, respect and trust between the judges from the different countries - factors which are essential to the effective operation of the international instruments concerned with the protection of children, and in particular the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

2. The format of the seminar, involving intensive discussions among judges from four jurisdictions around a number of practical cases, has been a success and is a model for such seminars in the future. Differences of approach, where they exist, have been revealed and the way has been opened to greater consistency in interpretation and practice under the Conventions.

3. The judges participating in the seminar will endeavour to inform their colleagues in their respective jurisdictions about the seminar and its outcome, and will in particular make available information about the International Child Abduction Database (http://www.incadat.com) and about the Special Commission on the practical operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction , which is to be held at the Hague in March 2001.

4. It is recognised that, in cases involving the international protection of children, considerable advantages are to be gained from a concentration of jurisdiction in a limited number of courts/tribunals. These advantages include the accumulation of experience among the judges and practitioners concerned and the development of greater mutual confidence between legal systems.

5. The need for more effective methods of international judicial co-operation in respect of child protection is emphasised, as well as the necessity for direct communication between judges in different jurisdictions in certain cases. The idea of the appointment of liaison judges in the different jurisdictions, to act as channels of communication in international cases, is supported. Further exploration of the administrative and legal aspects of this concept should be carried out. The continued development of an international network of judges in the field of international child protection to promote personal contacts and the exchange of information is also supported."

When we come to draft conclusions from this conference next Thursday morning I hope that we will agree to adopt, with suitable variation, the conclusions of the de Ruwenberg seminar as our beginning.

Looking to the immediate future, after our return to London at the end of this week we prepare for the third UK-German family law judicial conference which opens in Edinburgh on Tuesday 26th September. What we have achieved here in Washington will unquestionably be on the agenda.

Beyond that there can be no doubt that France has recently adopted a much more positive commitment to judicial exchange. In its current presidency of the European Union France is actively promoting a convention for the rapid enforcement of contact orders within the European Union. Whilst this is a laudable objective it is a pity not to see the proposal more extensively promoted. More generally France has recently sent an envoy to investigate the advantages of our centralised and adversarial system of family law, an interest which no doubt explains in part the very recent commitment of the French government to a Franco-British family law judicial conference at Dartington in June 2001. The agenda has yet to be discussed but abduction issues will undoubtedly be canvassed.

The potential gain from judicial family law exchange is obvious. But if that potential is to be maximised some regard must be paid to the practicalities. The pattern which has now emerged, and which I believe to be most conducive to success, is that the receiving jurisdiction provides all hospitality to the visiting delegation from airport arrival to airport departure. The conference venue needs to be capable of embracing the delegates in a pleasant and peaceful environment to allow the development of social relationships and the exchange of ideas, not just in the working sessions, but also over meals and during leisure periods. When we regard the almost prodigal expenditure of nations in political exchange (the sumptuous nature of the accommodation and the menus for the banquets triumphantly reported in the press) it astounds me to encounter government resistance to underwriting minuscule expenditure on judicial exchange. Fortunately this regrettable parsimony is being gradually overcome and I hope to see a future in which respective governments accept the need to fund necessary judicial exchange without hesitation. The hurdle should not be the financial cost but the cost to the justice system in the number of judge days lost from court sitting.

Beyond the completed commitment to the Franco-British exchange the United Kingdom has a tentative commitment to an Anglo-Egyptian family law judicial seminar, probably in 2002. Of all the jurisdictions in which Islamic faith predominates the greatest potential for the development of a special relationship in the field of child abduction lies with Egypt.

May I now commend the initiative of the Permanent Bureau at the Hague in establishing a data base of case law pertaining to the operation of the abduction Convention and its true construction? The permanent Bureau has been building up a library of precedents and it has recently created an Internet web site which it has made available for the purposes of trial to a selected number of users. In my opinion it is important that judges should have a clear perception of the Convention as an international instrument. In construing the Convention it is not enough to consult domestic case law. It is of the utmost importance that coins such as acquiescence, grave risk of harm and rights of custody have equal value in all member states. Thus it is necessary to consider the development of the jurisprudence internationally. Of course reverence for precedents is a peculiarly common law characteristic and the exchange of case law across jurisdictional boundaries is always likely to be easiest within the common law group. But it is therefore of particular importance that common lawyers should search out and respect the jurisprudence developed by states within the civil law and other legal systems. Therefore I would argue that the duty of the individual judge is twofold. His first duty is to make use of the international jurisprudence, probably most easily accessed through the Permanent Bureau’s Incadat system. His second obligation is to contribute to the growth of that aid, particularly if called upon to decide a difficult or novel point. He should either send a transcript of his judgment to the Permanent Bureau or alternatively he should ensure that the judgment is noted in the next edition of the Hague’s judicial newsletter.

The final area in which judges have an early opportunity to make a significant contribution to the more effective operation of the Convention is by participation at the 4th Special Commission. Historically judicial representation at special commissions has been slender. The 1998 De Ruwenberg judicial conference is not practically capable of repetition and enlargement without proper funding. It is sad indeed that nations of the world do not provide effective funding for the Permanent Bureau. The cost of funding a De Ruwenberg judicial seminar in unlikely to be less than £50,000. Dues for which member states are liable simply do not cover that scale of expenditure. The United States, the greatest and the richest country in the world, is even in arrears in the payment of its dues, as I understand it. Unless the rich nations of the world adjust their priorities to make proper financial contribution to the Permanent Bureau, not only to enable it to carry out its reasonable objectives but also to subsidise the participation costs of the poorer nations, there will always be a divide between what the Permanent Bureau could achieve and what it does achieve. One obvious solution in the present circumstances is therefore to extend representation at the 4th Special Commission to include judges and ministers. But judicial contribution to 4th Special Commission will only be effective if there is sufficient judicial representation. William Duncan has accepted the possibility of programming those items particularly relevant to judicial contribution to a part, and probably the second part, of the Special Commission. Such considerate planning would enable the judge to restrict the days lost from court work. Whilst I recognise that it is infinitely easier in terms of practicality and cost for neighbouring European jurisdictions to arrange judicial attendance it is vital that all jurisdictions here present, the close family of common law jurisdictions, should be at the Special Commission next March. Preparation for that is of course one of the primary objectives of this gathering.

My ideas as to imaginative and collaborative contributions from the judiciary of the member states are tentative and by no means exhaustive. I hope that they will be tested and expanded at this conference. Whilst I regard them as being of fundamental importance I hope that you will not think that I have lost sight of the judge’s paramount duty which is to uphold the Convention, to ensure the swift return of abducted children and to curtail and circumvent adult selfishness which frequently disregards the consequences of uprooting children and then seeks to justify the act by claims of necessity or duress.

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