ONE WORLD, BUT MANY JURISDICTIONS

(SOME OF THE CROSS-BORDER ISSUES

ARISING IN MONEY WORK AND IN CHILDREN WORK)

FLBA CONTINUING EDUCATION

Introduction

  1. In the modern day and age we have the wonderful ability to engage in international travel and communication. People from all countries, races and religions can readily meet, marry, or just cohabit,have children and acquire financial responsibilities within the family context. That’s all well and good until the relationship breaks down and the parties no longer want to live together, particularly when they no longer wish to live in the same country as each other.
  1. Sometimes the wish by one party to move to a different country after a relationship breakdown is driven by career prospects in the other country, sometimes by a relationship with a new partner in the other country, and sometimes simply out of a wish to “go home” – those are all valid and understandable reasons, but they can nevertheless give rise to difficult issues with international dimensions when children and/or money are involved.
  1. There are also, of course, those cases in which such issues arise where there is no real reason for the wishof one party to move to a different country other than to make it difficult for the other parent to have a continuing relationship with their children, whether that be a conscious or a subconscious wish, and/or to try to avoid financial responsibilities, or because that party perceives that he or she will find a more sympathetic forum in the other jurisdiction.
  1. There are four main types or categories of cases concerning children in which difficult issues with international dimensions arise:

(i)applications to remove a child from the United Kingdom, whether temporarily or by way of permanent relocation, and consequential contact issues;

(ii)international child abduction;

(iii)forced marriage; and

(iv)jurisdictional and enforcement disputes.

  1. In “money work” the commonissues that have an international element relate to:

(i)jurisdictional disputes (including “Hemain” and ant-suit injunctions);

(ii)asset freezing in respect of overseas assets;

(iii)enforcement disputes.

  1. There is a mass of jurisprudence in existence in relation to each of those topics, much of which is real “lawyers’ law”. Some (but by no means all) of the sources of that jurisprudence are to be found in:

(i)domestic legislation, and other underlying foundations oflaw,in the relevant countries (which will include, for example, the common law of England and Wales,and Sharia law);

(ii)the 1980Hague Convention on the Civil Aspects of International Child Abduction;

(iii)the European Convention on Human Rights and Fundamental Freedoms;

(iv)Council Regulation (EC) No. 2201/2003 (better known as the “Brussels II (Revised) Regulation”;

(v)the 1959 United Nations Convention on the Rights of the Child;

(vi)Council Regulation (EC) No. 4/2009 (better known as the “EC Maintenance Regulation”);

(vii)Council Regulation (EC) No. 1393/2007 (better known as the “EC Service Regulation”);

(viii)the decided case law of the courts of the relevant countries;

(ix)the decided case law of the European Court of Human Rights; and

(x)the decided case law of the European Court of Justice.

  1. A whole series of talks would be necessary to set out any sort of thorough review of the various categories of issues and sources of relevant law that are identified above (which are not themselves comprehensive), so all that can be done in this presentation is to discuss a few of the recent developments and hot topics in relation tosome of those categories and highlight some practical considerations.

The relevance and construction of particular international instruments and miscellaneous points

  1. The EC Council Regulations take effect automatically in England and Wales, by reason of the substantive European Communities legislation in this country. The Hague Convention on the Civil Aspects of International Child Abduction is given effect in England and Wales through the domestic Child Abduction and Custody Act 1985. The European Convention on Human Rights and Fundamental Freedoms is taken into account (but not given direct effect) in England and Wales through the Human Rights Act 1998.
  1. The UK is a signatory to various other international instruments, such as the United Nations Convention on the Rights of the Child, which creates obligations under public international law, but gives rise to no direct application under domestic law. However, the courts when dealing with domestic cases will nevertheless take serious account of the obligations of the UK under public international law: see, for example, the importance that was ascribed to the United Nations Convention on the Rights of the Childby the Supreme Court in its recent decision in Re E. (Children) (Abduction: Custody Appeal) [2011] 2 F.L.R. 758 (a case in which it fell to be considered whether the traditional approach towards the Hague Convention on the Civil Aspects of International Child Abduction is compatible with both the United Nations Convention on the Rights of the Childand the European Convention on Human Rights and Fundamental Freedoms fell to be considered – see further below).
  1. It is also necessary to bear in mind that the application of any given international instrument is limited to the States which are signatories to the particular instrument. Thus, the geographical effect of the EC Regulations is (in the main) limited to the relevant EC Member Countries, whereas, for example, the Hague Convention on the Civil Aspects of International Child Abduction has effect in the various signatory States around the world.
  1. Although the meaning of terms that are used in a particular international instrument is, in theory, autonomous and identical in each signatory State, the reality is not always as simple. Any such problem in relation to the EC Regulations can be resolved by the process of the domestic court making a reference to the Court of Justice of the European Union, seeking guidance. However, there is no single court that is available to give universal guidance on the meaning of instruments such as the Hague Convention on the Civil Aspects of International Child Abduction, so it is possible to discern different approaches in various States in relation to certain aspects of such instruments.
  1. The 1969 Vienna Convention on the Law of Treaties also provides useful guidance on the construction and effect of public international instruments generally. For example, Article 31 of that Convention provides, in effect, that public international instruments should be applied purposively. The applicability of this approach has been confirmed in many English authorities.
  1. It is also helpful when dealing with the law of other jurisdictions to bear in mind the presumption under English law that overseas law is the same as English law unless the contrary be proved: see Mansour v. Mansour [1989] 1 F.L.R. 418, CA, at p. 419, and Re J. (A Child) (Custody Rights: Jurisdiction) [2006] 1 A.C. 80, HL, at para. 15.

Service overseas

  1. The topic of service out of the jurisdiction is dealt with in Chapter 4 of the Family Procedure Rules 2010 and in Practice Direction 6B. Permission is not required for overseas service of documents that have to be served for the purposes of the Family Procedure Rules 2010: see Part 6.41 of those rules.
  1. However, it is important to note and comply with the procedures that are required in respect of service to various overseas countries and identified in the 2010 Rules, and to ensure that there is compliance with any additional local domestic requirements in such countries (for example, some methods of service are illegal in some jurisdictions, and failure to comply with local requirements may be fatal, as explained in Bentinck v. Bentinck [2007] 2 F.L.R. 1, CA.
  1. Rules as to service of legal proceedings within EC jurisdictions is provided for by specific EC regulations, the most recent of which are to be found in the Council Regulation (EC) No. 1393/2007. Those need to comply with the EC service regulations is referred to in the Family Procedure Rules 2010 and in the Brussels II Revised Regulation, but they are frequently overlooked, with potentially dire consequences where there is a “race” to engage competing jurisdictions as the jurisdiction that is “first seised” under various EC regulations and which is therefore the governing jurisdiction. See for example, Article 16 of the Brussels II Revised Regulation, which includes the following provision:
  1. A court shall be deemed to be seised:

(a)at the time when the document instituting the proceedings or equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; or ... [emphasis added].

  1. The danger is that the other party, having been alerted to the situation by defective service, may quickly issue proceedings in the competing jurisdiction, serve those competing proceedings quickly and argue that this other jurisdiction is then “first seised”. There is, as yet, no decided case law on this, but it is bound to come.

Removal, relocation and consequential contact issues

General

  1. Where a residence order is in force with respect to a child, no person may remove the child from the United Kingdom without either the written consent of every person who has parental responsibility for the child or the leave of the court: Children Act 1989, s.13(1). However, that does not prevent the removal of a child for a period of less than one month by the person in whose favour the residence order is made: ibid, s.13(2) (unless some specific order to a contrary effect is in existence).
  1. Whether or not a residence order is in force it is a criminal offence for a person connected with a child under the age of 16 to take or send that child out of the United Kingdom without consent from each of (i) the mother; (ii) the father if he has parental responsibility; (iii) any guardian; (iv) any special guardian; (v) any person in whose favour a residence order is in force; (vi) any person in whose favour an order for custody, care or control is in force; or (vii) leave of the court granted under or by virtue of any provision of Part II the Children Act 1989: Child Abduction Act 1984, s.1. However, that does not apply to the removal of a child for a period of less than one month by the person in whose favour a residence order is in force (or for a period of less than three months by a special guardian), unless the removal is in breach of an order that has been made under the 1989 Act: ibid., s.1(4) and (4A).
  1. Further, no offence is committed where the connected person removes or causes the removal of the child from the UK without the consent of any other relevant person if he acted in the belief that the other relevant person (a) has consented; or (b) would have consented if aware of all the relevant circumstances, or (c) unreasonably refused to consent (although (c) does not apply where the person who has refused consent has the benefit of a residence or custody order or the removal would be in breach of an order made by a court in the United Kingdom): ibid., s.1(5) and (5A). Further special provisions exist in respect of children who are in care, or detained in a place of safety, or remanded to local authority accommodation, or the subject of an adoption order or adoption proceedings.
  1. Thus, it can be seen that written agreement, or leave of the court, is required before even a parent who has the benefit of a residence order can remove a child from the United Kingdom for a period of one month or more, and that a parent who does not have a residence order in his or her favour needs the relevant consent(s) or leave of the court before removing his or her child from the UK at all.
  1. It is a curious fact that leave to relocate a child from Dover to Calais (for example) is required, whereas leave is not (generally) required for a parent with the benefit of a residence order to relocate the rather greater distance from Dover to Carlisle or Lindisfarne (for example).

Illicit removal

  1. Not infrequently a parent will effect the movement of a child across international borders without first obtaining the requisite consents or leave, or even in breach of a positive order prohibiting such conduct. By removing a child from the UK in such a manner way the parent may commit the criminal offences of “kidnapping” (as to which see Archbold: Criminal Evidence Pleading & Practice, 2011 Edition, at §§ 19-333 et seq.), or “abduction of a child” (ibid. §§ 19-311 et seq.), and/or may be in contempt of court if what has been done is in defiance of a court order. The law of other jurisdictions from which a child is illicitly removed will often have similar provisions.
  1. The consequence of such conduct, in the criminal context, may be extradition and prosecution. In the civil context, the consequence may be proceedings for the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction if the abduction has been between countries that are signatories to that convention, and/or proceedings to enforce any order made in a jurisdiction to which the “Brussels II (Revised) Regulation” applies, and/or an application for committal to prison for contempt of court where there has been defiance of a court order. The Court of Appeal has recently given guidance as to the making of repeated committal orders in respect of continuing failures to comply with orders that are designed to facilitate the return of an abducted child to this jurisdiction: seeIn Re W. (A Child) (Abduction: Contempt), The Times, September 15, 2011, CA.
  1. The summary return of a child to a jurisdiction that is not a signatory to the Hague Convention may be sought within the English wardship jurisdiction. Some of these possibilities will be considered below under the “International Child Abduction” heading.

The Procedure to obtain leave to remove a child from the UK

  1. An application for permission to remove a child from the UK, whether temporarily or permanently, and whether treated as an application under section 8 of the 1989 Act or under section 13 of that Act, will engage the principle in section 1 of that Act that the welfare of the relevant child shall be the paramount consideration. Even if the application is said to be made under section 13, the court should take account of the checklist in section 1(3): see Payne v. Payne [2001] Fam. 473; [2001] 1 F.L.R. 1052, CA.

Permanent Relocation

  1. The leading domestic authority as to the correct approach in cases where an application is made for permanent relocation of a child was Payne v. Payne, the continuing validity of which had been reaffirmed in Re G (Leave to Remove) [2008] 1 F.L.R. 1587, CA, and various other subsequent cases. The factors that will usually be relevant in deciding applications of this sort were clearly identified in Payne; they are well-known and will not be repeated in this paper.
  1. However, there has been continued and sustained criticism of the Payne approach, on the basis that it fails to strike a proper balance between the various competing rights that are engaged in such cases by reason of Article 8 of the ECHR, and it has been said that although the judges in Payneacknowledged that there must be no presumptions adopted in the approach to such cases, the guidance given in that case in effect applies an inappropriate presumption in the emphasis that it places on the “reasonable proposals of the parent with a residence order” and on the “effect upon the applicant parent and the new family of the child of a refusal of leave”.
  1. However, as was pointed out by Sir Nicholas Wall, the current President of the Family Division, in both Re D. (Children) [2010] EWCA Civ 50, and in a speech given on 19 September 2010 to the “Families Need Fathers” organisation[1], the guidance given in Paynehad beenexpressly premised on the question of residence not being a live issue in paragraph [86] of the judgment of by Dame Elizabeth Butler-Sloss P, where her Ladyship had also added:

If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant. If one parent intends to set up home in another country and remove the child from school, surroundings and the other parent and his family, it may in some cases be an important factor to weigh in the balance. But in a case where the decision as to residence is clear as the judge in this case clearly thought it was, the plans for removal from the jurisdiction would not be likely to be significant in the decision over residence. The mother in this case already had a residence order and the judge’s decision on residence was not an issue before this court.

  1. Thus, it was obvious that not all of the factors identified in Payne would have the same relevance in a case where the real issue is a choice between continuing residence in England and Wales with one parent, or residence with the other parent in another jurisdiction: see Re J. (Leave to Remove: Urgent Case) [2007] 1 F.L.R. 2033. This will often be the fundamental issue in a case where there has been shared care, in a real sense, in the past, and where each parent is in a position to provide a primary home for the child(ren). In the true Payne situation, where it is common ground that one party is to be the primary carer, why should the effect on that primary carer and any new family of refusal of leave to relocate the child not be a factor to weigh heavily in the balance? After all, to refuse leave to such a parent would in reality inhibit the freedom of movement and other aspects of the life of that parent, without the court having the power to impose any inhibition on the movement of the other parent in the future, or even to compel that parent to engage in any particular level of contact with the child(ren). This was a point that was, in effect, made by Thorpe LJ in Re B; Re S. (Removal from Jurisdiction) [2003] 2 F.L.R. 1043, CA, at para. [12], where his Lordship added:

These are the tides of chance and life and in the exercise of its paternalistic jurisdiction it is important that the court should recognise the force of these movements and not frustrate them unless they are shown to be contrary to the welfare of the child.

  1. If it is said that the primary carer should sacrifice what would otherwise be a reasonable wish to live abroad, in order to facilitate regular direct contact between the other parent and child, why can it not be said with equal force that the other parent should sacrifice life in England to follow the primary parent and child, so as to facilitate direct contact, or, alternatively, that frequent direct contact will have to be sacrificed? There will have to be sacrifices on one side or the other if the situation arises, and the question of who should be expected to make the sacrifices will properly depend upon all of the circumstances and an acknowledgment of the realities of life following family breakdown.
  1. It is also right to point out, as was done by counsel for the appellant in Re G (Leave to Remove) [2008] 1 F.L.R. 1587, CA, that the principles in Payne “have been much misunderstood and frequently misapplied by lower courts” (para. [16]).
  1. However, the criticisms of the Payne continued. There has also been a certain amount of qualitative research carried out on the topic of “relocation”, including that conducted by Professor Marilyn Freeman[2].
  1. Furthermore, in March 2010, more than 50 experts and judges from around the world (including Thorpe LJ from the UK) met in Washington D.C. to discuss the topic of cross-border family relocation; the agreement that they reached, referred to as the “Washington Declaration on International Family Relocation”, identifies the factors which were agreed are relevant to decisions on international location[3]. This led Thorpe LJ to comment as follows in [2010]FamLaw 565:

Were England and Wales to subscribe to the text of the declaration, or anything in similar vein, it would represent a significant departure from the principles that our courts have applied consistently since…1970. The case for such a shift is not difficult to articulate. The principles …… were substantially founded on the concept of the custodial parent. Furthermore, there is an emerging body of significant research in various jurisdictions to be brought into account.