German-British Judicial Conference
Trier, 24-29 September 2002

Brussels II and IIA: the experience of the Solicitors Family Law Association of England and Wales

The Solicitors Family Law Association

I am pleased to be invited as the representative of family law solicitors in England and Wales to address this distinguished Judicial Conference. I will start with a commercial for the Solicitors Family Law Association. The SFLA was formed in London in 1982 by a few concerned family lawyers who believed that an aggressive approach to family law proceedings and unnecessary reliance on the court process exacerbate the distress of the family members and increase legal costs. A Code of Practice was developed, designed to promote a conciliatory atmosphere in which matters are dealt with in a sensitive, constructive and cost-effective way. There are now over 5,000 SFLA solicitors in England and Wales. Through its National Committee, the SFLA liaises with government on law reform and sets high standards of good practice in family law through training, publications and an accreditation scheme for highly experienced specialist family lawyers.

The Code of Practice requires members to encourage clients to understand that a family dispute is not a contest with winners and losers but a search for fair solutions. We aim to ensure that our clients understand that the best interests of children should be put first and that an effort should be made to reduce the emotional tensions inherant in the family law context. The Code sets out guidance for the solicitor’s relationship with the client, with other solicitors, with a person who does not have a lawyer and with children particularly when the child is the client.

This year the Law Society of England and Wales, in cooperation with the SFLA and United Kingdom government departments, published the Family Law Protocol, a guide for family lawyers which is largely based on the SFLA Code of Practice and other SFLA guidance publications.

The Scope of this Paper

Although I have been asked to present a paper on the initial experience of family lawyers in England and Wales on the working of the Brussels II Regulation, I have had the advantage of reading the excellent commentary by my learned friends Nicholas Mostyn QC and Tim Amos and can see that they have already said quite a lot about our concerns, some of them very serious concerns. I agree with most of what they have written. I think that, in the circumstances, my presentation will be more helpful if I focus on the planned reforms to be introduced by the Brussels IIA Regulation. Professor Nigel Lowe will say more about this on Friday, and, as I anticipate that his paper will be academically far superior to anything I can offer, I propose to outline some points, good and bad, which are of particular interest to the hard pressed family law solicitors of England and Wales. After all, solicitors are the first point of reference for clients faced with the conundrums of Brussels II and, as gatekeepers to the family law justice system, I think we share their pain more than our eminent colleagues on the Bench, at the Bar and in the Law Schools.

Brussels II – Background

When the Brussels II Regulation came into effect in the United Kingdom and elsewhere throughout the European Union (except Denmark) on 1 March 2001 most of the lawyers in the United Kingdom jurisdictions (England and Wales, Scotland and Northern Ireland) were caught by surprise. My Scottish colleague Sheila Barker, who presents a paper to this Conference about family mediation, has co-written, with solicitor Shona Smith, an article published in March [2002] International Family Law confirming that there was confusion in Scotland about Brussels II, just as there was south of the border. The article highlights some difficulties encountered in Scotland and makes suggestions for avoiding similar problems arising in the future.

In England and Wales the SFLA took the lead by publishing Guidance Notes on the correct Brussels II procedure in March and April 2002 (Brussels II – It’s Here April [2001] International Family Law page 7). The SFLA International Committee, of which I am Chair, also monitored enquiries from concerned solicitors throughout our jurisdiction. There was amazement that the new law had been implemented by direct EC Regulation rather than through an anticipated Convention: the Brussels regulation process is foreign to English family lawyers and there were grumblings about loss of national sovereignty.

Since 1 March 2001 there have been surprisingly few serious problems with Brussels II. Solicitors were initially hampered by the lack of new court forms until these were produced by the Court Service in September 2001. Nevertheless, we muddled through in the best English tradition. The staff and judges at the Principal Registry of the Family Division of the High Court in London and local divorce County Courts worked with solicitors to make the system function.

Initially, our main concern was the pressure to issue divorce proceedings first to secure jurisdiction. In England and Wales we have a culture which requires the solicitor for a client proposing to commence family law proceedings to write a letter to the proposed Respondent before issuing proceedings, with a view to seeking an agreed course for the litigation. This principle is enshrined in the SFLA Code of Practice and the Law Society’s Family Law Protocol. This practice has been modified to allow solicitors to issue proceedings without warning if this is in the interests of the client, particularly if the solicitor anticipates that warning the proposed Respondent will lead to proceedings being issued first in an inappropriate foreign jurisdiction. Some English family lawyers are very unhappy with this development.

Mr Mostyn and Mr Amos in their paper say they could find only one reported case on Brussels II (in England and Wales) but I have found three which are relevant besides the case of Sulaiman v Juffali [2002] 1 FLR 479 which they cite.

On 13 June 2001 in Ikimi v Ikimi [2001] EWCA Civ 873 the Court of Appeal (Thorpe and Clark LJJ and Holland J) upheld the important concept that it is possible for a married couple to have two homes of habitual residence in two jurisdictions at the same time. Although this was not a Brussels II case because the homes were in England and Nigeria, there are significant implications for cases arising between Brussels II Member States. Do jurisdictions besides England and Wales recognise the concept of two concurrent habitual residences?

On 14 January 2002 in A v L (Jurisdiction: Brussels II) [2002] 1 FLR 1042, HHJ Garner decided that, where a husband’s appeal against a Spanish court order allowing the wife to relocate with the child to England was still pending, the Spanish court continued to be seised of jurisdiction under Article 11. Therefore the wife’s subsequent application to the English High Court was stayed on the basis of declined jurisdiction under Article 11 (3). HHJ Garner also declined to exercise discretion to make a provisional order in respect of the child under Article 12.

On 11 February 2002 in Breuning v Breuning [2002] EWHC Fam 236, Bennett J dismissed a wife’s divorce petition because she could not establish a jurisdictional basis of English domicile or habitual residence. His Lordship also held that the forum conveniens test of balance of fairness, including convenience, favoured the husband’s divorce proceedings in South Africa, where the parties had a substantial connection. Although this was not a Brussels II case, the judgment in instructive on what constitutes habitual residence and domicile under English law.

The central question is whether the certainty with respect to jurisdiction provided by Brussels II is worth the risk that divorce and related proceedings will be pursued in a clearly inappropriate jurisdiction. To take a hypothetical example, say a German family has been living in England for many years, the husband having been transferred from Frankfurt to London by his employer. All the family assets are in England and the husband’s income is earned in England. Suppose the husband is sent back to Frankfurt for 6 months by his employer, leaving the wife in the London home and the children in London schools. Suppose he then issues divorce proceedings in Germany after he has been there 6 months, as he is perfectly entitled to do under Brussels II. He then returns to live and work in England and moves in with his secretary. Brussels II says that all divorce related proceedings must take place in Germany. This seems quite illogical. Mr Mostyn and Mr Amos suggest a possible solution in their papers, but will it work?

There will be hard cases under Brussels II, and there will be victims of the system. Is the loss of discretion to stay proceedings on a forum conveniens basis too high a price to pay for certainty? Should there be more scope for discretion?

Brussels IIA – For Better or For Worse?

On 14 May 2002 the United Kingdom Lord Chancellor’s Department wrote to the SFLA requesting comments on the EC proposal for a new Council Regulation modifying or repealing Brussels II. Later that month a delegation of lawyers from the SFLA and the Family Law Bar Association (the barrister equivalent of the SFLA) went to Brussels to meet with representatives of the European Commission and the European Council to discuss the proposed changes. Brussels IIA proposals include widening the scope of Brussels II to cover all children, not just the children of the parties to the marriage, and to modify the effect of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, particularly the procedures for dealing with defences to the return of the child under Article 13. What we learned in Brussels informed the SFLA response to the Lord Chancellor’s Department. What follows is a summary of that response.

It is against a background of commitment to fostering laws which encourage a conciliatory approach that the SFLA supports those features of the proposed Brussels IIA Regulation which:

1.Protect the best interests of children in family disputes.

2.Reduce the scope for conflict between family members.

3.Clarify legal responsibilities and rights so that family members and their legal advisors can more easily agree about the principles on which dispute resolution will be based.

4.Encourage conciliation and mediation, rather than litigation, as a way to resolve disputes between family members.

5.Empower family members to resolve disputes by agreement.

6.Provide family members with the means by which they can obtain professional help to assist them to resolve disputes, including adequate public funding for:

Conciliation and mediation services.
Court services and court support services.
Legal advice and representation services.
Central Authorities and other facilities for international cooperation between those who provide conciliation/mediation services, court services and legal services.

The proposed Regulation has been examined in the light of the principles outlined above.

General Comment

1.The SFLA recommends that the United Kingdom should opt in to the proposed Regulation. However, we have concerns and reservations about some of the provisions in the Regulation and therefore recommend that those points of concern should be amended, or, if amendment cannot be agreed, that the provisions in question should be deleted from the text of the Regulation before it is approved by the Council.

2.Subject to the above proviso, the SFLA supports the general principles on which the proposed Regulation is based as set out in paragraphs (1) through (25) of the Recitals to the Regulation.

3.The SFLA is aware of proposals to expand the membership of the European Union by adding up to 10 new members in the near future and is conscious of the possibility that some aspects of the family law systems in potential new Member States may not be fully compatible with the family law systems of existing Member States. This causes us to urge particular caution in relation to provisions in the proposed Regulation which provide for mutual recognition and enforcement of access orders, international child abduction and adequate levels of public funding for conciliation/mediation services, court services, legal services and Central Authorities and similar facilities.

Comments on selected main provisions the proposed of Brussels IIA Regulation

Article 3 Right of the child to contact with both parents

This could lead to an increase in the number of disputes over contact/access and may also lead to unacceptable restrictions on the freedom of movement of children and parents with residence/custody of them. When similar legislation was introduced in Australia in 1996 there was, in the words of Chief Justice Alastair Nicholson of the Family Court of Australia, “an explosion” of litigation initiated by fathers (Contact Conference Report, 27 March 2002, London, page 94).

This Article should be amended in such a way as to discourage an explosion of litigation.

Article 4 Right of the child to be heard

The SFLA strongly endorses this principle which will need to be backed up with adequate public funding of legal representation for children, conciliation/mediation and court services.

Article 11 Interim continuing jurisdiction in state of child’s former residence

This is a good practical measure but its meaning should be clarified in more particular language to reduce the risk of jurisdiction disputes.

Article 12 Prorogation of jurisdiction

The SFLA supports the general principle that families should be empowered to make agreements, particularly in relation to which jurisdiction or jurisdictions will govern family relationships. The present drafting appears to allow parents to choose jurisdiction in relation to matters concerning parental responsibility but not for divorce, nullity or legal separation. The SFLA believes parties to a marriage should be empowered to decide what jurisdiction should govern their divorce, nullity or legal separation, subject to the proviso that the court must find that assuming jurisdiction is in the best interests of any children concerned.

Articles 21-24 Child abduction

The effect of these proposals would be to reduce the status of orders currently made under Article 13 (b) of the Hague Abduction Convention (grave risk, child’s objection) to mere provisional protective measures, subject to the power of the court of the child’s habitual residence to overrule the provisional order and require the return of the child. This is a radical change which substantially weakens the Article 13 (b) defence.

The SFLA does not support these draft regulations in their current form. We are concerned that children may be put at grave risk, or that their mature and considered objections to return will be disregarded or given insufficient weight. We are aware that, in the past, there have been examples of some countries using Article 13 (b) to refuse the return of children to their jurisdiction of habitual residence in circumstances which have caused concern among signatories to the Hague Abduction Convention. These past difficulties could be revived when new Member States join the EU.

The experience of SFLA members is that the Hague Abduction Convention works well, both within the EC and as between EC Member States and non-members. We are aware that the Convention works particularly effectively between the United Kingdom jurisdictions and those jurisdictions which share a similar common law heritage, for example, Australia and New Zealand. Central to this effectiveness is close cooperation and good understanding between court services, including judges, Central Authorities and lawyers in the respective jurisdictions.

Relative to other international instruments, the Hague Abduction Convention can be held up as a good example of how international law can work for the benefit of families. However, there is always room for improvement, particularly in an area which involves complex issues of legal and culture differences affecting parental rights and responsibilities and the protection of the best interests of the child.

The SFLA wishes to preserve as far as possible what is good about the Hague Abduction Convention while seeking to harmonise its operation with Brussels IIA within the context of the EC. The EC should consider how international cooperation between Member States can be improved not just in the difficult area of international child abduction but also to facilitate mutual recognition and enforcement of laws relating to parental responsibility, custody and access.

The Hague Abduction Convention is founded on the premis that the jurisdiction of the child’s habitual residence is most appropriate to determine what is in the child’s best interests, subject to certain narrow exceptions such as are found in Article 13 (b). A considerable body of case law on the Hague Abduction Convention has developed in many jurisdictions including the UK jurisdictions. The SFLA urges that, so far as is practicable, the draft Brussels IIA Regulation should leave this valuable body of jurisprudence undisturbed and build on it rather than introduce new concepts which may create more problems than they solve.

In the context of international maintenance enforcement it is notorious that the provisional order procedure can lead to a proliferation of litigation in two jurisdictions, with the case being batted back and forth for provisional proceedings and confirmation proceedings, sometimes referred to as ping pong litigation. This unnecessarily increases delay, cost, uncertainty and anxiety for the families involved. The SFLA therefore believes the provisional protective measures should be removed from the draft Brussels IIA Regulation. If this is not achievable, the Regulation should be amended to incorporate what in England and Wales are referred to as safe harbour orders to protect the welfare of children and the interests of abducting parents, who are often the parents with the primary care of children.

For example, the courts of the jurisdiction of the child’s habitual residence, in overruling a provisional protective order made in a jurisdiction to which the child has been abducted, should be required to ensure that the Central Authority will provide the following safeguards before the parent and child are returned:

This list of safe harbour orders is an example only and is not intended to be exhaustive.

The safe harbour orders should remain in place only until such time as the abducting parent and, if appropriate, the child, have had an opportunity to obtain legal representation and prepare for an inter partes hearing at which all relevant evidence can be considered by the court of the child’s habitual residence.

Articles 45-49 Enforcement of access

The SFLA supports the principle of reciprocal recognition and enforcement of access orders where such orders are made inter partes, or with the consent of the parties, in proceedings in the jurisdiction of the child’s habitual residence. We would not support such reciprocal recognition and enforcement in the case of default orders for access, that is, orders made in proceedings where the party ordered to grant access has not had an opportunity to be heard.

We question whether reciprocal enforcement should be limited to parents only. For example, there would appear to be no reason in principle why a grandparent or other relative who has been granted rights of access in legal proceedings in the child’s jurisdiction of habitual residence should not have such rights enforced. We are aware that the concept of what is a parent is changing in the context of surrogacy arrangements, assisted conception, fostering and adoption. For example, in Australia and Scotland earlier this year courts have granted sperm donor fathers rights of access to their children against the wishes of the mothers.

The provisions should be amended to make it clear that enforcement of access should not extend to penalising a father who refuses to have access with his child. We are aware of a case decided in Germany in 2000 where a father was faced with a fine of DM 50,000 if he did not have regular contact with his child. The SFLA would not want to see such an order being enforced automatically in England and Wales.

The drafting of these provisions should also be reconsidered in the light of recent research in the United Kingdom, Australia and elsewhere on how to make access work effectively (for example, Making Contact Work, the Report of the Children Act Subcommittee of the Lord Chancellor’s Advisory Committee on Family Law and the paper by Chief Justice Nicholson in the Contact Conference Report, referred to above in the comment on Article 3).

The interrelationship between the proposed provisions and Article 21 of the Hague Abduction Convention should also be taken into account.

Conclusion

The SFLA supports the principles upon which the proposed Brussels IIA Regulation is based. However, the concerns we have expressed should be reflected in substantial re-drafting of the provisions referred to above. If implemented in its current form the Regulation is likely to increase the scope for disputes about children and leave families with inadequate resources to help them deal with those disputes. The interests of children could be seriously prejudiced as a result.

David Truex
20 September 2002

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