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David Hodson on International Family Law: European justice scoreboard

Date:31 MAY 2013

International Family Law Practice by David Hodson

David Hodson

The Law Society Gazette reports, 24 May, that the UK has declined to take part in an EU initiative to launch a "European justice scoreboard", which according to the EU press release is "to promote effective justice systems in the EU". It focuses on elements of the individual states justice systems that improve the business and investment climate such as the speed in which cases come to court and how quickly they are resolved. It is undoubtably aimed at the commercial environment as the EU Justice Commissioner is quoted as saying "the attractiveness of a country as a place to invest and do business is undoubtably boosted by having an independent and efficient judicial system".

This had naturally attracted certain media publicity in predictable organs of the Fourth Estate along the lines of "ministerial alarm about a new EU bid to seize control of the UK justice system". It wasn't of course any such thing. Nevertheless as Hansard reports, the Justice Secretary felt it necessary to inform the House of Commons on 21 May that it was an EU initiative which the UK neither welcomed nor with which the UK intended to cooperate.

Within context of the family justice systems, this may be regrettable because England and Wales, and the other UK nations, would score very highly within Europe on any fairly objective scoring criteria.

We are a very fast jurisdiction. As much as any other country we do our best to adhere strongly to the six week timetable for the making of a return order in accordance with both Brussels II and the 1980 Hague Convention. The time between issue of Form A and the FDR, when most cases settle, is as quick as other European jurisdictions for financial resolution on divorce. When the justice system has to move very fast, England is very fast indeed: the out of hours availability of a judge, the opportunity of without notice hearings when needed and increasing electronic access to the courts. We are not in England alone in being quick but we are amongst others at the very top of the scorecard

We are very thorough in our disclosure process. Perhaps not as infinitely litigious as some US lawyers and their high profile cases but as thorough and comprehensive as anywhere else in Europe. We cannot guarantee clients that all hidden assets will be found, and the Court of Appeal has done its best to allow hidden assets as a consequence of Imerman. But we have judges and lawyers very used to searching through the complex corporate undergrowth, to quote Coleridge J, of hidden assets at all levels of family law work. Our family justice system is pretty good at getting towards the truth of the financial circumstances in most cases.

We are not really very fussed with procedural regularities. Although the rules of evidence are of course followed, unlike some jurisdictions it is not slavishly nor to penalise what would otherwise be a fair outcome or the best interests of children. Some European jurisdictions seem hidebound and tied up with continued interlocutories and rules of procedure.

We are very gender fair, giving full acknowledgement in maintenance, needs, awards to reflect sacrificial and prejudicial commitments to the marriage relationship and looking after children, in a way which many jurisdictions do not.

We have probably the most specialist family law profession and family law judiciary in the world alongside the US, Australia and a few other countries. Across much of Europe, there are in contrast still relatively few specialists.

Much more could be said; the commitment to mediation and other ADR, an international awareness which extends well beyond the very large metropolitan centres, and more.

Without being unduly smug, there is every entitlement to believe that we should be on the top of the EU scorecard, with a couple of other jurisdictions.

But perhaps we are being too smug. Perhaps our smugness arises because we ourselves have written the criteria for scoring. We put great weight on thoroughness of disclosure, relative speed of resolution of cases, specialisation, discretionary fairness and similar. We are proud of our tailor-made family justice system.

But elsewhere the EU may well have very different criteria. Certainty and predictability against discretion and tailor-made outcomes. Ease of entering into marital agreements against independent legal advice and disclosure to overcome gender duress. Exclusion of claims on non-marital property against provision for needs. On these criteria we are starting to slip down the league table.

Then there is allowing a couple to choose the law which would be applied to their financial disputes against having one law in one country before one justice system with one set of lawyers and one body of judges. Our adherence to England always applying English law will not score any marks on the EU scoresheet; probably penalty points will start to apply

Then there is the willingness to allow the EU to dictate and control all elements of family law within national law and our dealings with non-EU countries; or more precisely our unwillingness and very considerable unhappiness at the EU dominance. The calls are now very strong indeed and compelling to end the exclusive competency given by the UK to the EU a couple of years ago

On the EU scorecard of their own criteria for a family justice system, we might have nil points but more probably we will have had points deducted!

So it all depends on the criteria of scoring on this European justice scoreboard from this new EU justice initiative. Against our UK criteria we are not complacent but objectively we are doing very well. On the EU criteria, it is a different picture.

Probably the Justice Secretary was right all along not to take part in this EU justice game. It would significantly risk highlighting another rift; not in the justice systems themselves but in the criteria by which we judge family justice to be successful and in the best interests of families and children.

David Hodson is a Partner at The International Family Law Group LLP. 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 chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). 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.