In this post, Head of International Family Law at Paradigm Family Law, Frank Arndt discusses jurisdictional issues – a topic that is generating a great deal of interest at the moment:
I recently wrote a post about Art 15 BIIR and the importance of international cooperation in our highly international dynamic world. I was overwhelmed by the tremendously positive comments I got in such a short period of having published the post.
Lessons to learn
Here is another example which shows that life constantly throws changes at us in one form or another. We have to adjust constantly and sometimes recover and that can take time.
I remember when I went to school in Germany, I was taught a lesson and then given a test. But as Tom Bodett says in real life you’re given a test that teaches you a lesson. This is so true and we all have to adapt quicker in the fast life we are living in at the moment and we should not be frightened of the tests ahead.
Only last week Mr. Justice Baker in HA (A Child), Re (No.2) [2015] EWHC 1310 (Fam)showed us what lessons we can all learn from this incredible case.
In his judgment he summarises at [34] to [42] the law on Art. 8, 12, 15, 16, 17, 19 and 20 Brussels IIR and the recent cases, in particular Munby J in AB v JLB. He concluded that he is not satisfied that the matter, on the present available evidence, is better placed to hear in the Court in Lithuania.
Principles of comity and co-operation
But remarkably the Judge gave some clear lessons to be learned from this case and said in his final observations at [56] that:-
(1) When considering whether or not to make a request under Article 15, the court with jurisdiction must identify precisely the case or specific part thereof in respect of which it is inviting the court of the other Member State to assume jurisdiction.
(2) Before making a request, the court must be satisfied, inter alia, that the courts of the other Member States will be better placed to hear the case or the specific part thereof. This requires the court to be given appropriate information about the processes and legal principles to be applied in the other Member State.
(3) When considering whether to make a request under Article 15, consideration must be given as to whether to proceed under Article 15(1) (a) or (b) – that is to say, whether the request should be introduced by the parties or made by the court of the Member State with jurisdiction.
(4) In public law cases, the case in this country is brought by the local authority. Before making an Article 15 request, it is necessary to consider whether the English or Welsh local authority will be able to conduct proceedings in the other Member State. If, as is likely, it will not be possible for the local authority to conduct proceedings in the other Member State, careful thought needs to be given as to how the issue which forms the subject matter of the case or specific part thereof that is being transferred could be litigated in the other Member State.
(5) In public law cases, a more nuanced and complex approach may be necessary if the best interests of the subject children are to be protected. This is illustrated by the recent series of cases between England and Wales and the Republic of Ireland, in particular by the decision of the President in Re HJ (A Child) [2013] EWHC 1867. As Mr Setright pointed out in the course of the hearing, the two matters in the earlier proceedings over which this court retained no control following the transfer to Lithuania were (1) the process of starting proceedings in Lithuania and (2) the physical transfer of H. The processes adopted in the cases between this country and the Republic of Ireland address these lacunae and could perhaps usefully be adopted in transfers between this court and other jurisdictions. The common language, the physical closeness of the countries, and the similarities between the legal systems in England and Wales and the Republic of Ireland facilitate close co-operation in these cases.
These factors are not present to the same degree in cases between England and Wales and other EU countries, but the principles of comity and co-operation apply to relations between all states of the EU. This court remains able and willing to explore ways in which, through greater co-operation, processes can be devised which improve the operation of the jurisdictional rules for the benefit of the children like H entrusted to the care of the courts. “[Emphasis added].
Contact us
If you are involved in a complex international case and need help and guidance, please speak to our specialist family lawyers at Paradigm Family Law. Call us on 0845 6020422 or email [email protected] for a free initial consultation.
