in civil and commercial matters /
Report of activities of the central authorities for 2009
United Kingdom
England and Wales
1. Organisational questions
a) Describe any organisational changes and any changes in your financial and human resources
We have had one change of case manager over the last year.
b) If more than one central authority has been designated in your Member State, indicate any changes to the responsibilities of the different central authorities
There are different central authorities for each of the United Kingdom’s jurisdictions and separate reports are provided for each. Within the England and Wales central authority the same staff are assigned to cases under both the Hague Convention and the EU Regulation, allowing a concentration of experience and expertise, and development of working relationships with other central authorities.
2. Working methods (Article 57)
a) Indicate any changes in your working methods
We have recently installed a new case management system within the central authority which should increase efficiency.
b) Describe any best working practices applied within your central authority or in its dealings with other central authorities
We will always translate applications and relevant documents into the language of the requested central authorities for ease of handling and in the hope that it will reduce delay. We will always endeavour to reply to requests for updates promptly. We have an internal office target to reply to correspondence within 10 working days. We find communication by e-mail, although not essential, to be the quickest and most efficient way of communicating. In incoming cases we find that the practice of direct communication between client and lawyer reduces delay in abduction cases. However the lawyer continues to keep the central authority updated about the progress of the case and will request our help if necessary.
c) Have you experienced any specific language or communication-related problems?
Generally we do not experience problems with language as we have a specific budget for translations. We generally receive translations of relevant documents from Member States in English although recently we did receive 2 cases brought under Article 55 from France which were not translated. If documents are received in languages other than English this leads to a delay, pending translation.
d) Have you experienced any particular problems in relation to working methods and if yes, how in your view these problems could be resolved?
We have nothing specific to report.
3. General functions (Article 54)
a) Describe any action taken to inform on national laws and procedures
We have nothing in addition to previous action to report here.
b) Describe any action taken to strengthen cooperation with other central authorities
There are a large number of abductions from the UK to Spain (generally over 20 a year). Since 2005 we have had a number of meetings between our central authorities and judges both in London and Madrid to facilitate our cooperation in these cases. A number of practical conclusions and action points which were drawn from these meetings have had a positive effect on subsequent cases.
c) Have any measures been taken in your Member State to improve the application of the Regulation?
There have been a number of legal training seminars in the past year which have included elements of the Regulation for lawyers. The central authority for England and Wales has participated in one of these.
4. Cooperation on cases specific to parental responsibility (Article 55)
a) Please describe any relevant action taken to:
ii.) Collect and exchange information
Since 2005 we have received a growing number of requests under Article 55 of Brussels IIa and it is used more frequently than Articles 56 and 15. It is worth noting that the majority of these requests tend to come from jurisdictions which have a centralised department or court within their internal infrastructure with responsibility for issues relating to children. For example, the requests from Latvia arrive via the Latvian Orphans Court and in the Netherlands, the Youth Welfare Bureau. We receive a large proportion of Article 55 requests from these 2 jurisdictions. Generally the requests will involve children who are subject to, or have been subject to, some sort of welfare investigation or monitoring from a child protection authority in the previous country of residence. These cases do not arise out of an abduction or retention of the children by their parents, the family have simply changed their country of residence and the authorities who were involved with them are keen to know about their circumstances in their new country of residence.
The requesting central authority will request that we confirm the whereabouts of the child and provide information on his/her circumstances. We assist by finding the relevant contact in the appropriate UK local authority so that the information on the children can be shared. Sometimes the family are already known to that authority and they already have relevant information they can pass on. However, there are occasions when they do not know of the family and they have no information to pass on. We have to ask the local authority to carry out an investigation/report and this can sometimes raise resourcing issues.
iii.) Provide information and assistance to holders of parental responsibility
We have nothing in addition to previous action to report here.
iv.) Facilitate court-to-court communication
In January 2005 the judicial post of Head of International Family Law was created for the jurisdiction of England and Wales. Amongst the various responsibilities of the office is the promotion of direct international judicial communication both in specific cases and more generally. Furthermore the Head of International Family Law initiates exchanges with judges from other jurisdictions when there is a requirement to do so. Cross-border judicial communications in these cases are often complicated and lengthy. The exchanges are numerous and take place over a period of, on average, 3 days to two weeks, involving all parties, their legal representatives (barristers and solicitors) and judges. Every attempt is made to try to deal with the case as expeditiously as possible and to that end the Central authority often collaborate with Head of International Family Law’s office. For example we have worked together recently to try to resolve a particularly difficult and long running case with one Member State.
v.) Provide information and assistance needed by courts in the context of Article 56
We have nothing specific to report.
vi.) Facilitate agreement between holders of parental responsibility through mediation and facilitate cross-border cooperation to this end
The England and Wales central authority and the external lawyers to whom cases are referred encourage parties to try and resolve their differences without the necessity of a contested hearing. The lawyers instructed on behalf of the applicant issue proceedings immediately following referral. If appropriate such negotiations take place concurrently with the return proceedings rather than as a preliminary stage to the application being issued. If the respondent indicates a willingness to return the child voluntarily the proceedings are concluded with a consent order.
The England and Wales, German, Irish and Swedish central authorities have taken part in a mediation pilot scheme which was set up by Reunite International - a non-Government organisation and the leading UK charity specialising in international parental abduction. The scheme was set up as a way of investigating whether mediation could be used to successfully resolve abduction cases by giving the parents an opportunity to discuss the practical issues affecting their children’s future.
When reviewing the feedback from parents who participated in the Reunite Mediation Pilot Scheme, the project has proved to be successful and clearly demonstrates that there is a place for mediation in cases of international parental child abduction. Reunite International are actively exploring the possibility of being authorised by the Legal Services Commission (the body responsible for legal aid in England and Wales) for the purposes of mediation.
There is also a Court of Appeal Alternative Dispute Resolution (ADR) scheme for family appeals. Although the scheme is not mandatory, and indeed depends upon the reciprocal consent of the parties, it has proved particularly effective in international child abduction. Once the parties have consented to mediate the process is directed by the Court of Appeal. The Court appoints the mediator and settles any disputes as to practicalities. Regulation cases clearly require a mediator with particular experience and expertise in international child disputes. Accordingly in practice the Court of Appeal invariably refers such mediations to Reunite.
b) Have you experienced any particular problems in relation to any of the above matters and if yes, how in your view these problems could be resolved?
We have received a number of requests under Article 55 from Member States for reports on a child’s social conditions so that the overseas court can review or make a decision relating to custody. Two of these requests have been made whilst a return application was pending. We find this slightly confusing in that the purpose of the return application is to ensure the child is sent back to that state so custody can be resolved. In England and Wales any reports relating to a child’s circumstances are produced by relevant local authorities. However we wonder whether rather than Article 55 being used in this scenario, the taking of evidence Regulation might be more appropriate as this has specific provisions for reports to be used in foreign court proceedings. The court reporting officers would then provide the report instead of the local authorities.
5. Observations on the application of the Regulation
To the extent not already covered by points 1. to 4. above, please comment on the application of the Regulation in your Member State and the European Union as a whole
Although the general ethos of this Regulation is well founded in that all orders will be recognised across the Member States of the EU the reality is not as simple when enforcement of an order is required. Article 47 explains that enforcement is governed by the law of the Member State where enforcement is required. Generally our experience is that enforcement of orders is carried out by the court which means that the applicant requires legal representation which they will have to pay for if they do not qualify for financial assistance. For example enforcement of a contact order made in Member State A which requires enforcement in Member State B because of a breach will require court intervention and inevitably the involvement of lawyers who require their fees to be paid either through legal aid or paid by the applicant privately. This means even though the applicant may have already paid legal fees for their order from the court in Member State A, they then have to pay again to enforce it in Member State B.
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Statistics for 2005 to 2009 from England and Wales
Year / Article 11 - Abduction / Article 15 - Transfer to a better placed court / Article 39 - Parental Responsibility / Article 41 - Access / Article 42 - Return of the child / Article 55 - Co operation on specific cases / Article 56 - Placement of a child / Totalincoming / outgoing / incoming / outgoing / incoming / outgoing / incoming / outgoing / incoming / outgoing / incoming / outgoing / incoming / outgoing
2005 / 95 / 87 / 2 / 1 / 1 / 186
2006 / 110 / 86 / 1 / 2 / 4 / 5 / 3 / 5 / 2 / 218
2007 / 116 / 107 / 2 / 1 / 2 / 4 / 1 / 6 / 8 / 1 / 248
2008 / 129 / 119 / 1 / 1 / 3 / 2 / 16 / 3 / 4 / 4 / 282
2009 / 138 / 134 / 1 / 2 / 1 / 3 / 3 / 6 / 1 / 32 / 1 / 2 / 4 / 328
Total / 588 / 533 / 3 / 4 / 5 / 9 / 13 / 20 / 4 / 56 / 4 / 11 / 12 / 1262
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Scotland1. Organisational questions
a) Describe any organisational changes and any changes in your financial and human resources
There have been no changes during this period.
b) If more than one central authority has been designated in your Member State, indicate any changes to the responsibilities of the different central authorities
The answer for England and Wales applies here.
2. Working methods (Article 57)
a) Indicate any changes in your working methods
There have been no specific changes in our working methods, but recent experience of Regulation cases has helped improve our knowledge and understanding.
b) Describe any best working practices applied within your central authority or in its dealings with other central authorities
Applications and supporting documents are always translated before submission to other central authorities. Applications are faxed or e-mailed to ensure prompt receipt and top copies are posted using the International Airsure service. For incoming cases our target is to appoint a solicitor to represent the applicant within 48 hours.
c) Have you experienced any specific language or communication-related problems?
No particular problems have been experienced. We have a budget for translation of outgoing documents and will occasionally have incoming documents translated if considered appropriate. One member of the team speaks fluent French and German, which can be helpful if we need a quick response.
d) Have you experienced any particular problems in relation to working methods and if yes, how in your view these problems could be resolved?
No particular problems have been experienced.
3. General functions (Article 54)
a) Describe any action taken to inform on national laws and procedures
Nothing specific recently, aside form participation in EJN meetings.
b) Describe any action taken to strengthen cooperation with other central authorities
Networking when attending EJN meetings, conferences etc.
c) Have any measures been taken in your Member State to improve the application of the Regulation?
Nothing in addition to previous action to report here.
4. Cooperation on cases specific to parental responsibility (Article 55)
b) Please describe any relevant action taken to:
i.) Collect and exchange information
We have had only one case under Article 55 but, in general, the response from England and Wales applies here.
ii.) Provide information and assistance to holders of parental responsibility
See above.
iii.) Facilitate court-to-court communication
We have not had any cases under Article 55 which needed court to court communication.
iv.) Provide information and assistance needed by courts in the context of Article 56
We have not had any cases under Article 56.
v.) Facilitate agreement between holders of parental responsibility through mediation and facilitate cross-border cooperation to this end
In most incoming cases, the lawyer is asked to seek a voluntary return before court proceedings are initiated.
b) Have you experienced any particular problems in relation to any of the above matters and if yes, how in your view these problems could be resolved?
No particular problems have been experienced.
5. Observations on the application of the Regulation
To the extent not already covered by points 1. to 4. above, please comment on the application of the Regulation in your Member State and the European Union as a whole
We rarely receive return/contact applications specifically under the Regulation; most cases either mention only the 1980 Hague Convention or quote both the Convention and the Regulation, possibly because access to legal aid is easier under the Hague Convention. The notion that a return or contact order made in one Member State should be enforceable automatically in another Member State is fine in principle but our experience is that this does not happen!
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