26 July 2010

In last week's comment, I referred to the remarks by LJ Thorpe in the Court of Appeal in Golubovich [2010] EWCA 180, a jurisdiction dispute involving a wealthy Russian family. I commented that the first past the post criteria found in the Brussels Regulation was neither the simple nor fair answer to these forum cases.

The judge adversely commented on the public resources devoted to such an international case when there were many national cases warranting attention.

However if a case has jurisdiction, an English connectedness, then the English family justice system should deal with it. The question of allocation and amount of resources in the family justice system is bigger and more fundamental than a few international forum cases. Yet the Golubovich debate perhaps shows some ways forward:

- It is often said that English family law is becoming inquisitorial, less accusatorial. However this needs active implementation in court rules and procedures with greater court/judicial management, especially in higher cost cases. Lawyers and parties should not be blamed when the costs are high at a final hearing when a case has had many interlocutory hearings with no adverse judicial comment being made.

 - It is no use judicially criticising high costs without analysing how such cases could have been conducted to the same ends but with dramatically lower costs. Criticising with hindsight is easy and helps no-one. We need guidance on future conduct to keep costs down.

 - There should be much greater use of early neutral evaluation such as the FDR in AR cases. My colleague, Ann Thomas, is writing in Family Law August [2010] on an equivalent Relocation Dispute Resolution (RDR) hearing in international children cases.

 - There should be greater opportunity for applications for summary judgement, as in civil litigation. Too many cases are unmeritoriously pursued by the wealthier party simply to wear down the more economically vulnerable party, to make them give in.

 - We must have powers for interim lump sums for costs, to equalise the position of the parties and prevent one party simply abandoning their claims for want of ability to fund legal representation.

These are only a few remarks. The government is embarking on a wide ranging analysis of where savings can be made. They are many, various and substantial. It is almost as impossible for a client just above public funding threshold to run a case to a final hearing in justifiable circumstances in the English family justice system as it is in some Third World countries. This must change. This is our present challenge.

David Hodson is a Consultant at The International Family Law Group. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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