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Entries in Cross-border issues (4)


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.

Cross border contact issues raised at Holyrood

Concerns about the issues that arise when separated or separating parents move between the jurisdictions of the United Kingdom were raised during questions to the Justice Minister in Holyrood yesterday (November 16th 2016). 


Kate Forbes (Skye, Lochaber and Badenoch) (SNP) asked Annabelle Ewing "What support the Scottish Government can provide to people from Scotland who are engaged in legal proceedings in jurisdictions outside Scotland.


The Minister for Community Safety and Legal Affairs (Annabelle Ewing): It is for individuals themselves to raise and defend legal proceedings in other jurisdictions.  In international parental child abduction and child maintenance cases, support is available from the Scottish Government’s central authority team.

Kate Forbes: Engaging in legal proceedings around divorce and custody in another jurisdiction in the United Kingdom can be challenging, especially emotionally and financially, and can cause significant damage to relationships between children and both parents.  How can the Scottish Government better assist parents who are dealing with child contact and residence orders between and across jurisdictions?

Annabelle Ewing: I acknowledge the considerable stress that is caused in cross-border cases, including cases across the UK jurisdictions.  The Scottish Government cannot provide direct assistance to parents who are dealing with child contact and residence cases in other jurisdictions in the UK.  However, we provide financial support to a number of family support organisations, including Families Need Fathers. In addition, we intend to produce a guidance circular for legal practitioners and others in Scotland on the existing provisions that govern the area in the Family Law Act 1986, which applies across the UK and applies to cross-jurisdiction family actions.  We will also continue discussions with our opposite numbers in the UK Ministry of Justice and the Northern Ireland Executive. For example, we have suggested that the relevant form that is used in family cases south of the border could be amended to ask the applicant whether there is a potential Scottish or Northern Irish dimension to the case.  I understand that the Ministry of Justice is amenable to that proposal.

FNF Scotland national manager, Ian Maxwell, commented:
"We are grateful to Kate Forbes for raising this important matter and look forward to this guidance becoming available.  Where there are problems of raising or enforcing contact or residence proceedings across international boundaries there are remedies within the Hague Convention.  But we are regularly approached for advice where one parent takes children from one part of the United Kingdom to another, even when there is a contact order in place.  There ought to be simple, speedy and inexpensive procedures available between the UK jurisdictions but our experience is rather different.  Relationships can be damaged or lost during the time the cases work their way through court and, as so often, the cost can be crippling."

Research underway on Relocation Disputes within England and Wales

A British Academy Postdoctoral Fellow at the University of Oxford has begun research on relocation disputes within England and Wales. Dr Rob George is looking to "broaden our understanding of the everyday realities of relocation disputes." He will be reviewing relocation cases, at first instance, in England and Wales between 1 January 2012 and 31 December 2012.

Dr Rob George is of the view that "Although these cases are increasingly common, very little is known about their everyday reality in England and Wales because almost all the information presently available is based on a tiny sample of cases which reach the Court of Appeal. This lack of information makes it difficult to engage fully with the global debate over the law's regulation of post-separation families in the migration context."

Families Need Fathers Scotland welcomes this move to ascertain the realties of relocation within England and Wales. Hopefully this research shall encourage debate on Intra-UK relocation issues. FNF Scotland recognises that there is a distinct lack of research on relocation within the UK.

More information on Dr Rob George's research is available on Family Law Week.

For anyone affected by a relocation dispute the Custody Minefield web site is an invaluable source of information.  FNF Scotland is now collecting Scottish case studies and judgements to supplement its largely English coverage, and we would like to hear from anyone currently involved in such a case.


Cross border cases wanted

Families Need Fathers Scotland is collecting examples of UK cross-border problems in family law cases. 

We already know of various cases in which children have been moved from one country to another without agreement of the separated father, which have then resulted in court action taking place in the new location rather than the country of residence before the move.

If a similar move is made to a foreign country, then the Hague convention on child abduction should apply, and the case would have to be heard quickly in the country of origin.  It seems easier to get children back from the far side of the world than from England - so long as the destination country subscribes to the Hague convention.

We have the impression that the problem is greater if the move is from Scotland to England than vice versa, but that may just be because we hear more examples of that situation.

Anyone with experience of cross-border problems should contact Ian or John in the Edinburgh office - 0131 557 2440 or scotland@fnf.org.uk.