After a career spanning nearly 5 decades, former Resolution chair David
Salter recently retired as joint national head of family law at Mills &
Family Law invited Salter to reflect on a long and diverse career, during which the legislative framework in family law changed dramatically.
In the second instalment of this wide-ranging, 2-part interview, Salter discusses Brexit and live streaming of court hearings.
Click HERE for part 1.
Family Law: Since it is nearly 2019, Brexit is knocking on the door. What impact do you think Brexit will have on family law?
Salter: Brexit present enormous challenges! The main concern is the uncertainty, because there is no doubt it is going to affect a lot of cases. Some practitioners do not fully understand that it is very rare these days that there is a case without some international element. But we just do not know how the jurisdictional rules will operate after 29 March. And, of course, jurisdiction for divorce is based on European law. Now, if we are faced with purely domestic legislation on a hard Brexit, there will be a lot to be taken on board.
Salter: "We may find ourselves in a very complex world."
The process of absorbing change, whatever the outcome is, is enormous: rule changes, form changes. I was privileged to be involved as founding member of the Family Procedure Rules Committee. I sat on that committee from 2004 to 2014, and I saw the amount of detailed scrutiny that goes into those rules. It will take enormous amounts of time and effort to guarantee an appropriate framework and continuity.
Family Law: Yes, continuity is hugely important. What would you advise any family law professional who is involved in, let’s say, a cross-border divorce or other pan-European family matter? Would you rush things through and try to finalize cases before March?
Salter: Well, in terms of establishing jurisdiction, once that is established, that is all well and good. But, unless there are broader grounds for issuing proceedings, I would never encourage people to rush things through. But it must be right to go with the certainty of the current rules because beyond that no one knows exactly where one stands.
Family Law: And in terms of recognizing other countries’ court orders, enforcement of those orders, do you foresee issues there?
Salter: Enforcement of orders, particularly when it comes to children, is already a very complex area. We are just going to have to wait and see. There are other, non-EU, pieces of legislation to fall back on, but it is the uncertainty that makes this question nearly impossible to answer.
Family Law: OK, on to another topic then. Live streaming of court cases. A pilot started recently and – if successful – this could be rolled out family court hearings. What do you welcome this development or do you feel that we ‘Americanizing’ court proceedings?
Salter: I think if proceedings as a
whole in open court are going to live streamed, it is very difficult for the Family
Division to resist if the hearing itself would in the ordinary course of events
be held in open court. Obviously, if it is held in private, completely
different considerations apply. Let me give you an example, if a case proceeds
to the Court of Appeal, a family case, and it would be open to live streaming,
then it is very difficult to argue why an open court first instance hearing
should not simply be open to live streaming as well. There may be a shift in
considerations that would enable one of the parties to apply for an opt-out in
relation to that, but it would be very difficult to exclude the Family Division
altogether from live streaming if the hearing is held in open court.
Family Law: Thanks for your time!