Family Law

On Tuesday, 1 April 2014, a date rich with irony, the European Court of Justice is hearing claims brought by several EU Governments against the EU asserting that the EU has, in terms, wrongly exceeded its powers by claiming sole competency to enter into bilateral and multilateral arrangements with non-EU countries in respect of family law matters.  This would be obtuse heavy political stuff save that the innocent victims of this EU ‘land grab of power' are the abducted children from countries now signatories to the 1980 Hague Convention.

Given the huge attention focusing on EU powers, the in-out referendum and excessive EU claims to sovereignty, including for example the Farage v Clegg debate yesterday, it seems amazing that this issue has not been picked up by journalists or politicians.  Yet it sums up many issues concerning EU claims for powers as it affects families and children.

Moreover there has been no official publicity to this hearing as far as I'm aware.  I only discovered about the actual hearing when I asked a question to an EU representative at the European Chapter meeting of the IAML in Bordeaux last Friday.  On my return to London, I contacted the Ministry of Justice who confirmed there is to be an oral hearing next Tuesday. 

The link is:

http://curia.europa.eu/jcms/jcms/Jo1_6581/?dateDebut=1/04/2014&dateFin=1/04/2014. 

The hearing would seem to be in French, listed at 9:30 am with three other cases also in the same list, so just like most of our family court hearings!  There is no other information on the link. 

I do not know if there have been any written submissions and if so what has been said ‘on our behalf' by our Government.

I'm asking who is the advocate for the UK Government.  Family lawyers would like to know that he or she has been very well briefed about the adverse impact on international children and the consequences already experienced in a number of High Court cases in England.  Too often there has been in EU matters a perceived difference between actual practice experienced by lawyers and practice as perceived by Government officials, with adverse consequences.  The UK Government must be well briefed by practising lawyers.  If anyone has been involved in the briefing process, it would be helpful to know what has happened, at least to give some comfort that the position in practice is known and will be explained.

I have written previously about this issue.  In summary, a couple of years ago the EU unilaterally declared that it alone had exclusive competency, in effect sovereign power, to enter into treaties and conventions with non-EU countries in areas in which the EU had already made laws, which effectively now means almost all areas of family law.  This was not as a consequence of any consultation especially any democratic consultation.  It meant that the UK could not enter into a bilateral treaty with Australia or India or the USA in respect of any matters of family law which may affect those countries.  Crucially it has meant that individual EU Member States have not been able to join with the new 1980 Hague Convention signatory countries, so where there is an abduction from those countries to the UK and other Member States, it has to be treated as if it is a non-Hague Convention abduction case.  This has had a serious adverse impact on a number of international abducted children.

It is to be hoped that politicians and journalists can draw attention to this issue, perhaps even for a closer scrutiny of the hearing on 1 April.  Too little publicity has been given to the profession and public on changes emanating from the EU to our law even though it has had a huge impact on our laws and our work for national and international families.

I wish the UK and other Governments much success on Tuesday.  A quick decision returning sovereign power to EU Member States for non-EU family law issues is vital.

Once I have further information about the case, I will post as an addendum.    

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.