Family Law

The Rt Hon Lord Justice Thorpe, Head of International Family Justice, UK

This article is based on an address to the International Society of Family Laws Regional Conference, University of Chester, July 2007.

There can be few family justice systems that have not had to adapt law and practice essentially designed to serve the needs of the citizens born and bred in order to meet the challenge of the restless mobility of the modern world. Many factors contribute to this mobility. Vulnerable people flee from barbaric despotism. Others emigrate in search of economic opportunities, when the living wage in their country of birth may be no more than 5% of the living wage in the country of their choice. Others emigrate to escape the rigours of the dark northern winters. Others bond and marry across continents as a result of a holiday romance or through internet chat room flirtations. For the affluent employee, international banks, hedge funds and private equity investors demand mobility. The super rich entrepreneur is likely to maintain luxurious homes across the world.

This is our modern world and its impact on our population is little short of extraordinary. The Organisation of Economic Co-operation and Development released figures of immigration to Britain the week before last. In 1991 there were 3.3 million foreign-born Britons. Ten years later the figure had risen to 4.3 million. By 2005 the figure had risen to 5.8 million. This is a spectacular increase and in the last 2 years it is estimated that the annual increase is in the order of half a million. There is an exodus in the reverse direction with the effect that the foreign-born population is growing while the British-born population is declining. Much of the recent increase results from the government decision not to impose labour market restrictions on Eastern Europeans joining the EU in 2004. As a result, at least 650,000 have registered to work and many more have come as self-employed.

For the family justice system there are two resulting challenges. Can our existing family law deliver fair results to couples or families that originate in some distant jurisdiction whose laws are governed by tradition, culture and religion very different from the British? An even more acute challenge is posed by the family divided between two jurisdictions, particularly where the division has been achieved by a wrongful removal or retention.

In the British family justice system another significant development has been the growth of interdisciplinarity. We have recognised that the service and the standards that all litigants are entitled to expect depend crucially upon mutual understanding and collaboration between the various professions involved. This is particularly true of public law proceedings, the essential objective of which is the protection of children and the advancement of their welfare. Good results depend upon the pooled expertise of judges, practitioners, health experts, social workers, guardians and academics, as well as other disciplines less centrally engaged.

This conference unites these two evolutions. The partnership between the International Society of Family Law (ISFL) and the Cheshire Family Justice Council marries them. For me this is a particularly stimulating union. As I read of the conference I wanted to ask some fundamental questions. How widespread is the interdisciplinary model in other family justice systems? What can we in Britain learn from the work of the ISFL in this area? How has the extraordinary levels of immigration and emigration affected the work of the ISFL? How are we, judges, practitioners and academics, contributing to the development of solutions to all the problems of mobility, solutions that will deliver fairer justice between adults and which will better protect and promote the welfare of children? These questions are particularly important for me since I have had the good fortune to have worked either as a judge of the Family Division or a judge of the Court of Appeal over the course of the last near 20 years that have encompassed these two evolutions. As Head of International Family Justice and as Chairman of the Executive Committee of the Family Justice Council, internationality and interdisciplinarity are two of the three components of my present work life. The third is the Court of Appeal, where the majority of family appeals are listed in my court. I could not be more fortunate in that balance. However, before saying more about where we are (and perhaps where we aspire to be) I should explain in a little detail how we have reached our present state. I will first endeavour to trace the origins and development of the Family Justice Council and then explain how the government came to create the new post of Head of International Family Justice.


For the full article, see November [2007] International Family Law.

To log on to Family Law Online or to request a free trial click here.