Meeting Summaries
Family Justice Council - International Family Law Committee
08 November 2004
MATTERS ARISING
Council of Europe Draft Convention relating to contact
The Chairman recapped that all were aware that the Government consultation exercise had been discussed in Cardiff in September 2004. As a result of this exercise Lord Justice Thorpe had drafted a response to the consultation paper. The draft response was circulated to all members for comments and the final response was sent on behalf of the members of the Committee.
Gay Bailey informed the meeting that the closing date for the consultation exercise was 31 October 2004.
EC Parental Responsibility Regulation
Lord Justice Thorpe had spoken to Claire Johnston and she had assured him that the draft domestic Regulations were well advanced and would be in place before 1 March 2005.
Mr Justice Singer raised with the meeting the Brussels II bis "Practice Guide" which had been finalised with the European Judicial Network.
Lord Justice Thorpe stated that it was important to recognise that Brussels officials had appealed to experts to contribute to the drafting and had met with the European Judicial Network to consider an advanced draft. The processes and end product were both impressive.
Lord Justice Thorpe also pointed out that the "Practice Guide" was not binding but for practitioners meeting the Regulation for the first time the guide was a useful aid.
Lord Justice Thorpe informed the Committee that the President had agreed that any issue involving jurisdiction would be allocated to the Family Division. It was also hoped that domestically it would be possible to produce a good practice guide.
Discussion took place with regard to placing a link to the publications on the SFLA, FLBA and Court Service websites.
Training regarding the Regulation was being carried out by the JSB in the Hilary term. This training will include the Practice Direction issued by the President. The Committee felt this was a good opportunity to remind people of the importance of getting the venue right first time.
1996 Hague Convention on the Protection of Children - update
Gay Bailey reported that at the present time the Spanish Government was trying to improve relations with Gibraltar. It was too soon to say what impact this would have on issues relating to the 1996 Hague Convention, there were still some legislative issues to resolve. The Government’s programme will be in The Queen’s Speech.
U.K. - German Standing Judicial Conference 2004 – report back
Lord Justice Thorpe informed the Committee that the event was held from 8 - 12 September 2004 in Cardiff and was outstanding.
Conference highlights included getting Austria on board and there was every prospect that Switzerland would join as a German speaking jurisdiction.
Lord Justice Thorpe stated that Mrs Justice Catherine McGuinness saw no problem with the Republic of Ireland holding the next conference in Dublin in 2006 and that Austria had offered to hold the conference in 2008 so the future was looking very secure.
Lord Justice Thorpe said that it was important to ensure that past achievements were continually built on and that the potential of the conference was expanded.
It was agreed at the Conference that membership be restricted by language.
Draft Convention on the International Recovery of Child Support and Other Forms of Maintenance - report back from Hague meeting
European Commission Green Paper on Maintenance Obligations - UK response
The above items were dealt with together.
Gay Bailey provided the meeting with a summary. The Hague Conference was well advanced on a universal Convention. Some EU Member States did not wish to consider EU developments until The Hague Conference negotiations had reached a conclusion.
RELATIONSHIP OF THIS COMMITTEE WITH THE FAMILY JUSTICE COUNCIL
The Chairman asked the Committee how they felt about being adopted by the Family Justice Council.
Michael Nicholls welcomed the adoption and felt that it was an opportunity for new initiatives and he looked forward positively to the change.
Lord Justice Thorpe stated that International Law was increasing in importance and that the FJC would need an expert body of Internationalists.
Professor Judith Masson asked whether it was possible to have a link section on the FJC website that contained all the hyper links so that people did not have to keep scrolling through documents to find them.
Lord Justice Thorpe said that a link to the Family Proceedings Rule Committee may be important and that the Committee was a resource for the FPRC to call upon. The Senior District Judge and Lord Justice Wall were both on the FPRC.
Mr Justice Singer said there was to be a meeting in Rennes from 19 - 21 May 2005 of the Anglo-French Judicial Cooperation Committee where family law issues were due to be discussed. This meeting was primarily for judges.
Lord Justice Thorpe expressed his concern over the family law topics to be addressed at this meeting as he felt they duplicated the topics to be discussed in June 2005 at the Judicial Conference in France.
Lord Justice Thorpe and Singer J agreed to discuss this matter outside the meeting. Thorpe LJ said he would discuss with Keen LJ also.
Gay Bailey raised an issue on behalf of Sally Field. Gay explained that the FJC as part of its structure needed to produce a Business Plan and that it was important for the Committee to inform the FJC where it thought it fitted into that Business Plan. This was especially important with regard to any conferences that the Committee had up to now been involved in.
Lord Justice Thorpe explained that the Committee had up to now been self supporting and that the DCA had paid for the Cardiff Conference and therefore were not obligated to pay for it for another 10 years. However he said that if there were another Anglo - German Conference in this jurisdiction then the FJC would need to fund that.
Professor Judith Masson said that it was important to let the FJC know what they might be expected to pay for, not just for next year but the future too.
EU CONSTITUTION - EFFECT ON FAMILY POLICY
Gay Bailey informed the Committee that family EU legislation requires unanimity under the current Treaties and this remains the case under the Constitution.
Family does now have co-decision with the European Parliament which enhances the role of the European Parliament before matters go to the Council of Ministers but this does not occur until the end of negotiations.
Mark Everall read extracts from the Constitution and suggested they amounted to substantial change to Article 65; the European Union can legislate as is necessary with regard to internal markets.
Lord Justice Thorpe suggested that this may be a position ripe for clarification at a future meeting.
THE EUROPEAN JUDICIAL NETWORK
Lord Justice Thorpe said that he had been pursuing this for a long time and that Singer J had been valiantly pushing the point in the context of the Good Practice Guide. As a significant addition to the text Chapter 10 of the Guide referred to a liaison network of specialist family judges, alongside the European Judicial Network.
Lord Justice Thorpe said that this was a clearly defined organisation and that Eral Knight was our point of contact.
Lord Justice Thorpe informed the meeting that he and the President would meet Eral Knight to discuss the appointment of a liaison judge.
ANY OTHER BUSINESS
Further to the earlier discussion of EU matrimonial property regimes Michael Nicholls asked the meeting if anyone knew of or had any idea about a EU move to deal with matrimonial assets in more than one jurisdiction.
Miles Preston said that there was a meeting of the European Chapter of the International Academy of Matrimonial Lawyers in Vienna in May 2005 when this might be on the agenda.
Mark Everall said he had heard via the Bar Council that the EU matrimonial property proposals had been due to be published in a Green Paper, but this has been delayed to 2005 or 2006. This was the result of the Harmonisation Committee realising that conflict of laws harmonisation was more complex than they had thought.
All FJC members had received an invitation to join any of the adopted committees of the FJC and the Chairman welcomed Professor Judith Masson in this capacity.