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« Family law consultation extended until September | Main | Family therapy still supported by legal aid »
Thursday
Jul262018

Welcome improvement to cross-border judicial co-operation

Scottish Lord President Lord Carloway and outgoing head of the English Family Division Sir James Munby have launched a welcome initiative to improve cross border co-operation in family cases.

Their new judicial protocol will provide for the direct exchange of information between judges in intra-UK cross-border cases involving children. Liaison judges will be appointed in each country - the Scottish ones will be the two family judges Lord Brailsford and Lady Wise.  When legal proceedings are taking place in Scotland and England or Wales judges can communicate and exchange information via the liaison judges. 

While the detailed arrangements are mainly of interest to the judges who will make use of it, the preamble to the Protocol makes some interesting points:

  • Recognise that Scotland and England & Wales share a common commitment to the rule of law and to the principle that the welfare of the child is the paramount consideration when his or her needs or rights are considered by the courts;
  • Recognise that in cases involving children which have a cross-border element, judicial co-operation is of critical importance;
  • Consider that cross-border judicial co-operation should include the early identification of cases, clear lines of communication, the free flow of relevant information and the facilitation of effective case management;
  • Recognise that the removal of children from one country to another may have a harmful effect on such children;
  • Recognise that it is desirable that in the regulation of cross-border judicial communications as between Scotland and England & Wales the judiciary has regard to the Principles for Direct Judicial Communications as published by the Hague Conference on Private International Law;
  • Recognise the importance of negotiation, mediation and conciliation in the resolution of family disputes where appropriate; and
  • Recognise the value of ongoing cross-border judicial engagement in the preceding matters.
Alongside the Protocol a Handbook has been published giving short summaries of the law relating to children in Scotland, England and Wales.  The Scottish information about public and private law orders and procedure is written by Lynda Brabander QC.  This cross border guide provides a useful introduction to how things work in the three countries.
Families Need Fathers Scotland and our English and Welsh counterparts handle enquiries relating to cross border cases, and such information is long overdue.  We often find that the lawyers within one country have no understanding of how things work across the border.
We have been calling for a long time for better procedures for handling cross border cases within the UK, and while this Judicial move is a welcome improvement, we feel that a lot more needs to be done:
  • enforcement of court orders between countries is still cumbersome;
  • CAFCASS staff seem reluctant to come to Scotland when doing court reports, whereas child welfare reporters are more willing to travel to England
  • within the UK it would be desirable to have a clear understanding of which court deals with a cross-border case. At present it becomes a race to raise proceedings, whereas in international cases there are reasonably clear rules on which court should be acting;
While some of the above problems will be difficult to resolve, we suggest that a next step following on form this cross border initiative would be to clarify the procedure and cost of registering orders made in one country when they have to be implemented by a court elsewhere in the UK. 
We also look forward to the extension of this judicial protocol to the courts in Northern Ireland, given that they are operating under yet another set of laws and procedures.
We will raise these points in the current Scottish Government consultation and also write to the incoming President of the Family Division in England and Wales Sir Andrew McFarlane.

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