The matter
was distinctively taken to the European Court last April, 2014, with a decision
handed down in October 2014. Although
most member states did not support this EU seizing of powers, the European Court
ruled that it was valid and appropriate.
The consequence is that we cannot now enter into, for example, the 1980
Hague Convention on child abduction with Singapore (and other countries), with
which we have many family dealings, unless and until the EU gives the go-ahead
to join up for the entire EU. Other
member states are also unhappy at this restriction because it prevents their
child abduction dealings with countries with which they have significant international
family law traffic. Entry into 2007
Hague Maintenance Convention was delayed for this reason. This is a classic illustration of a power too
far. There is no good reason why Member States
cannot enter individually into multilateral treaties and conventions with
non-EU countries. This imposition of EU exclusive
competency power extends into several areas of social and commercial life. It should be repatriated quickly.
There are
other difficulties with EU family law legislation such as the first to issue
principle, lis pendens, the continued attempt to impose applicable law and
similar. But whilst on an ideal shopping
list for renegotiation is, it’s part of the bigger picture of our relations
with the EU and unlikely to feature specifically in pre-referendum
negotiations.
One of the
problems in practice across Europe is that there are a number of EU Member States
which, as a result of severe austerity cuts and other reasons, have relatively or
very slow judicial systems and procedures which have an impact across the
entire EU for international families.
The EU has seemed unwilling or perhaps unable to intervene. A combined justice system may be laudable but
needs consistent and good standards from the individual justice systems. This may be an increasing issue over the next
5 years dependent on the economies of some EU countries.
In the
concluding chapter of the new edition of Jordans
The International Family Law Practice, published late May 2015, I have conjectured what family law might be
like if we left the EU. Certainly there
would be things which we would miss but many of those provisions already exist
in Hague Conventions which are certainly good enough for other parts of the
common law world. Some could survive
with specific Conventions with the EU such as Lugano. It’s an interesting debate.
Family law
is a minor component of the negotiations in the next 12 months with the
EU. But the attempts by the EU to create
one family law judicial system across the entire EU based primarily on civil
law concepts and very different to English traditional provisions and
procedures will inevitably continue unless there is some pulling back by the
EU. These negotiations may be vital in
many ways.
Human rights
The
European Convention on Human Rights extends beyond the EU. The Conservative administration has indicated
that it has become very unhappy at what it perceives as a succession of cases
where undeserving applicants have been given rights including the right to stay
in the UK despite e.g. criminal offences, failed asylum attempts and/or awarded
damages. The government seems to be
attempting to withdraw from the Convention, perhaps substituting a British Bill
of Rights.
This is
hotly opposed by many lawyers from different disciplines. For family law there needs to be a careful
informed debate (probably in conjunction with immigration lawyers who are often
most directly affected) about whether the Art 8 right to family life has had an
all-round benefit to our national life including our family life or whether it
has, as alleged, been used as a defence to perhaps otherwise unworthy or
difficult to justify claims.
Scotland
This has
been perhaps the biggest feature of the 2015 general election. After the narrow defeat in September 2014 of
the independence referendum, the Scottish National party has taken over the
seats occupied by the Labour Party and now has 56 seats, almost the entire 59
seats in Scotland. It is a party which
is probably left of the Labour Party and utterly committed to defeating the
so-called austerity measures of the Conservative government. It still wants independence and sees this
incredible success in the election as an opportunity for a quick rerun
referendum, despite what might be said on the record by their leader. David Cameron fought hard before the
September 2014 referendum to hold the United Kingdom together. He will have to fight even harder, now within
the UK Parliament in London, to resist Scotland seeking its independence.
The worry
from England is that the payments going to support Scotland, already quite
significant, will increase to ensure continued Scottish unity. A time may be reached soon when Scottish
demands become unacceptable to England. Interestingly,
if the EU in out referendum were to decide that the UK wanted to leave,
Scotland (and Wales) would most definitely want to stay in the EU which would
cause both constitutional and EU political issues. Another possibility is some variation of a federal
basis, although perhaps more the Australian rather than the US model.
In fact
within family law it’s not a big deal.
As I wrote on the eve of the Scottish independence referendum (
http://www.davidhodson.com/news/scotland-decides-impact-of-independence-on-anglo-scottish-families-and-family-law),
England and Scotland are very different family law jurisdictions. Scotland is much more civil law with
significant differences on spousal maintenance, marital agreements,
cohabitation and court process.
Certainly we are all part of the UK for EU purposes. But there are separate courts and separate
central authorities. As Rachel Kelsey of
Edinburgh has reminded me, the EU Maintenance Regulation applies between UK
countries although Brussels II does not.
So the
relationship between England, and indeed the other countries in the UK, and
Scotland will be a real feature of national and political life over the coming
years of this Parliament but probably not a distinctive feature affecting
family law
Divorce financial provision law
UK
governments have shown themselves distinctly unwilling to get involved in
family law legislation. After the unhappy
experience in 1996 with divorce reform for the introduction of no-fault
divorce, they have mostly run scared of any new legislative reforms.
But in
February 2014 the Law Commission produced a report recommending legislation for
binding marital agreements with qualifying conditions. Case law (Radmacher) has already brought us
close to this position. But legislation
will provide certainty which will significantly assist international families
and lawyers from abroad advising clients in respect of marital agreements where
clients may subsequently come to the UK or have UK connections. It must be hoped that legislative time will
be found to implement the Law Commission proposals.
It was
regrettable that at the same time the Law Commission did not recommend
legislation to deal with needs, such a crucial feature in divorce financial
settlements in England, and categorisation of assets between marital and non-marital. I understand a judicial working party set up
to make recommendations for the identification and characterisation of needs
should report this summer. Hopefully,
without being legislation, it can nevertheless have a strongly normative effect
and provide certainty and clarity.
But it is
the categorisation of assets which is arguably even more important. So many of my firm’s finance cases now seem
to revolve around whether an asset is marital and should be automatically
shared equally, unless needs determines otherwise, or whether an asset is non-marital
and not shared at all, again subject to needs.
It is taking up much court time and significant legal costs. The uncertainty in our law is a huge frustration
for international families and their lawyers abroad who are, almost without
exception, in countries where this categorisation is certain and
predictable. This is both civil law and
other common law countries. Is it too
much to hope that the government will legislate even without specific Law Commission
recommendations? It would produce much
greater certainty for our law and for our international families
It was in
1963 that Harold Wilson characterised his future government with the so-called
white heat of technological innovation.
Although England is unable to compete with the Californian Silicon
Valley and other initiatives in some other parts of the world, it is
undoubtedly one of the world leaders in creativity in the digital medium. What could be done in the next 5 years of
this government to bring this creativity into more walks of life? Specifically what could be done within family
law?
It seems
inevitable that there will be more cuts to the family justice system, already
shaved to the bone and probably beyond.
The indulgence, as some see it, of expensive litigation deriving from
discretion, specifically uncertainty and lack of clarity in the law and
expectations of outcomes, cannot survive.
Other jurisdictions have creatively tackled financial outcomes on
relationship breakdown through digital means including tariffs and
formulae. The Law Commission gave an amber
light to these issues. It must be one
way forward. We can learn from other
countries and it will benefit international families litigating here
And finally … What can be said
without any doubt is that there will be more and other developments over these
next few years affecting international family law and international
families. These are exciting times but
also very challenging.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
