UK/EU Family law after Brexit: a speech to the European Parliament
Sep 29, 2018, 23:22 PM
Family Law, Brexit, divorce, international family law, Law Society, Hague Conference on Private International Law, European Union, common law jurisdiction, lis pendens, forum dispute, alternative dispute resolution, EU Mediation Directive, Hague Child Abduction Convention, Hague Maintenance Convention
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UK/EU Family law after Brexit: a speech to the European Parliament
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May 18, 2018, 09:11 AM
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Speech given by Prof David Hodson OBE MICArb to the European Parliament on 16 May 2018
I am a solicitor, mediator and arbitrator practising exclusively in international family law matters from a law firm in Covent Garden, London, and a member of the family law committee of The Law Society of England and Wales. We have 175,000 solicitors. Specifically, about 12,000 solicitors undertake family law work. There are 2,500 family law barristers. In addition Scotland and Northern Ireland are part of the UK but separate jurisdictions in family law.
Without any doubt we are the largest family lawyer community in the EU. There are good reasons because of the distinctive nature of our law.
We are also a very specialist profession with high levels of education and awareness. This extends to international aspects in a direct response by our legal profession to the needs of our international community in the UK, to whom I now turn.
The UK is very probably the most international family jurisdiction in the world. (The USA is of course multiple jurisdictions.) Moreover, unlike some countries, our international families are spread across our entire country and not just found in a few Metropolitan centres. So internationally aware lawyers for these families are throughout the UK, and not just in London and Edinburgh. Moreover and again unlike some countries, our international families have a wide extreme of financial circumstances, from the abject poor to the wealthiest in the world. So, UK family lawyers represent the broadest spread, from those working for a pittance amongst the most needy to those charging close to €1,000 per hour.
Moreover and fundamentally, we probably have the broadest geographical reach of international families. Of course we have many families from the EU, accelerating in the past decade with free movement. We have many families from the Commonwealth, specifically Africa, the Caribbean, South Asia and South East Asia. We have many families from around the world who are here because of work and business opportunities including for multinational employers. Finally we have, particularly again in the last decade, some of the wealthiest families around the world choosing a base in London. The UK is an international family law crossroads. This is so significant that it has become part of who we are as a country. Some might say British values are in good part determined by the fact that we are a welcoming and tolerant crossroads. We want this to continue, whatever our EU future.
But EU families are only one part of this community. Yet we have been forced to have one set of laws for the EU family and separate laws for other families. This is highly unsatisfactory, for justice and practising lawyers.
These separate laws are far more pronounced for us in the UK than any other EU member state and this has caused real frictions. The UK is the original common law jurisdiction with our very historic emphasis on judge made law, individual discretion and opportunities for tailor-made justice. It may be 200 years since an event 20 km along the road from us here in Brussels, but the shadow of Napoleon and his civil code, which spread with him across Europe and the world, is still cast upon us here this afternoon.
Put simply, and apart from the Republic of Ireland which is hybrid, the UK is completely different to the rest of the EU as a common law jurisdiction. Yet because our financial orders are so generous, which I would categorise as fair and gender role neutral, the UK is such an attractive jurisdiction for bringing financial claims. If the UK were just one of 28 operating a similar civil code and process in the family law arena, none of the problems the EU has encountered with the UK since March 2001 would have arisen nor would we be having this discussion this Wednesday afternoon. In my experience over this past 20 years I feel there has been strong resentment from EU member states towards the very considerable differences in laws and in our generous outcomes. There have been many attempts by the EU to impose civil law concepts onto our UK common law. Even before the referendum, UK judges, lawyers and politicians had to prevent EU impositions.
Yet there has been much good that has come from the EU for family law, particularly in recognition and enforcement of cross-border EU orders. We do not want to lose this. We want to work with the EU with flexibility and avoidance of political agendas.
But from the perspective of solicitors represented by our Law Society Family Law Committee, I must share some of the very practical problems we experience with EU laws and which many do not want after we leave the EU and transition period. They are problems of which the EU is very aware.
A chief problem is lis pendens, the concept that in a forum dispute the party which issues first determines where the proceedings should be. We recognise that in the mid-1990s the EU had to sort out what to do with forum disputes, with the increasing number of international families across borders and therefore the increasing instances where courts of two-member states could have competing jurisdiction. Unfortunately, what it did was at best a social experiment on monumental proportions which hasn’t worked and at worst has been perhaps the most antifamily life, anti-settlement orientated law found in any set of jurisdictions. A leading international academic, Prof Tom Oldham, has shown that there is no other group of countries anywhere in the world which operates such a forum law. Our High Court judges have described it as thoroughly arbitrary and creating unjust outcomes. All that matters is having the fastest lawyer. It’s the divorce lawyers sports day! To change the metaphor: it is a perfect divorce storm.
An international law which encourages marital racing coupled with the largest, most specialist, and fastest legal profession in the EU coupled with a national law giving far greater financial provision than any other EU country. Because UK lawyers have tended to win most of our races, either by the proceedings being in the UK or our making jolly sure they were anywhere but in the UK! And this racing has caused very bad consequences.
Around the world there is strong emphasis on alternative dispute resolution such as mediation. The EU has rightly encouraged through the EU Mediation Directive. But racing to court is incompatible with gently strolling together to the mediation room. So our UK laws have been specifically changed to accommodate racing. The obligation in our law to meet a mediator before issuing proceedings does not apply in an international case where racing is fundamental. And when a party has raced to court to issue tactically, prospects of mediation diminish greatly.
But worse. Lawyers have cases where the marriage has not completely broken down, where one spouse wants to give the other an opportunity to reconcile, perhaps to change their ways. And we lawyers have been put in the most horrid position by the EU. We have no choice but to recommend issuing proceedings in the favourable country, without notice, just in case the other spouse issues before them. And then prospects of saving the marriage disappear. Divorce is certain. I have challenged the EU on this. Their response is that they have a duty to harmonise cross-border divorce. True. They then say they have no brief to look at the consequences on marriage. Unbelievable.
Just as bad, the law creates wealth inequalities. In many marriages, one spouse still has primary control of the funds, and can take legal advice to decide where is the best place to issue and then race to court, having taken legal advice in separate jurisdictions. From people like me. The other spouse, perhaps without funds under her control, has no access to justice to seek fast and specialist advice. She, and it often is she, loses out, sometimes very badly. We see dreadful examples of really unfair outcomes for the financially weaker spouse via this law.
We have attempted to persuade the EU to change this. Indeed, our first attempt was exactly 19 years ago in May 1999, when I was a founder member of a committee of English solicitors dealing with international matters. There was an EU consultation and two of our leading lawyers came here and argued strongly against this racing law. Ignored. Initially the EU refused to admit there was a problem with racing. When it did, it blamed UK lawyers and said it was just a UK problem, which might be true, but it was a problem nonetheless. About 10 years ago, three of us English solicitors tried to find a positive solution and we proposed to the EU a hierarchy of jurisdiction. The EU considered it and asked our senior judge, Lady Justice Black, to set out how it would work. We did. But the EU rejected it.
So, in our intra-EU cases we race to court. But in our many non-EU cases where the law is based on the closest connection of the family with any country, a law which applies in both family law and across civil litigation, there is condemnation of racing and support for greater opportunity to pause, reflect and perhaps resolve. Many in the UK want just one law for all our international families. We do not want a law which is so disadvantageous to mediation and ADR, to saving savable marriages and to the financially weaker spouse. Many will be delighted if we have no more races to court.
I name just one other problem with EU family law. It is the limitation on courts making maintenance, needs-based, claims where the only jurisdictional connection is sole domicile or sole nationality. But the EU has not just imposed this restriction on intra-EU cases but on all cases, even without any other EU involvement. So, we may have an English domicile wife married to an American national husband, both working in a Central American country where neither wants to have their family court proceedings. England is prevented in making needs-based orders because of an EU law. The US can. A crazy situation. This is the EU imposing laws which are not needed and specifically laws with so-called universal, global application when no other EU member state has any involvement. This is legislative imposition too far.
What is crucial in the English solicitors’ profession is our belief that we have a global role. This is the Law Society’s fundamental work and identity. There are many countries who borrow our exciting, innovative and fair laws and legal practices. We in turn look abroad, both in and outside the EU, and borrow to improve our own laws. We are keen to work with constructive international partners.
We find this most chiefly with The Hague Conference on Private International Law. The UK has been a strong supporter since the late 19th century. With other countries, we are the strongest advocates, promoters and users of the world’s most important and widespread international family law namely the 1980 Hague Child Abduction Convention. We have been keen on its ancillary 1996 Hague Child Protection Convention, and were really frustrated at the delay of its implementation connected with our EU membership. It works well. Children orders are recognised and enforced. Senior academics and child specialist lawyers in the UK believe that these Hague laws will cause relatively little difference in practice on our leaving the EU. The EU has a huge task itself to bring a number of its member states up to acceptable children law practice, especially expeditious dealing with abductions.
In the finance realm, we were very frustrated that the 2007 Hague Maintenance Convention was so delayed for us whilst the EU had to bring all its member states to accept its introduction. We would have wanted to have joined a long time before. Other major jurisdictions in the realm of global maintenance traffic such as the USA and Canada have signed up. The Hague has created innovative opportunities for global maintenance such as its technological iSupport procedure for transmission of information and payments between signatories. With several real disadvantages with the EU Maintenance Regulation, where of course the EU has penalised the UK as a non-applicable law jurisdiction by insisting on a two-stage process of enforcement, The Hague equivalent will do very well for us for mutual recognition and enforcement. As a global jurisdiction, we want one international law and we find it in The Hague.
In the realm of divorce jurisdiction, The Hague again has a relevant Convention, from 1970. The UK has no anxiety about recognition of incoming divorce orders. We are one of the most liberal countries in the world. We have some anxiety about recognition of outgoing UK divorce orders. But the answer is simple. The EU commits to The Hague 1970 Convention and signs on behalf of EU member states. If it won’t because some member states will not recognise certain divorces, then the EU has work on its hands with those member states. But it should not penalise liberal regimes like the UK.
In conclusion, none of us in the UK underestimate the work which has to be done for our international families with EU connections. But we can find a way. You will hear some say that we should remain within EU laws and the European Court for many years. Politically that won’t happen. It would betray the UK democracy.
Instead, our discussion this afternoon gives us the timely opportunity to reflect on how the EU can be more outward looking and work in partnership with The Hague Conference on global laws. With due deference to China, India and Babylon, Europe is the cradle of civilisations and the foundry from which liberal ideas of justice, fairness and equality have flowed. There is much which the EU can bring to future international family laws and global families, and much which the specialist UK family law profession can contribute to the EU as good supportive friends. The EU can contribute by signing up to Hague family laws on behalf of the EU. It must find a way in which the UK, with its huge international family traffic, can still have reciprocal recognition and enforcement. But not laws which encourage racing to court and discourage reconciliation and mediation.
The UK is soon leaving the EU. For those of us who care deeply about international families, we and you must find a way to help them. Thank you.
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