As a consequence of the increased mobility of families between different countries, family lawyers are now frequently faced with international issues arising in their cases. This major practitioner reference work provides comprehensive coverage of the international elements of English law, and includes all relevant source material, thereby providing an indispensable guide for solicitors, barristers and the judiciary to this rapidly expanding area of law and practice.
This new edition is fully updated throughout to include:
- The 1996 Hague Child Protection Convention
- The 2007 Hague Child Support Convention
- New relocation case law post-MK v CK
- An update on The EU Maintenance Regulation
- A new chapter on judicial collaboration
- An explanation of applications to The European Court of Justice and European Court of Human Rights
- All relevant Family Procedure Rules
Preface:
It is evidence of a fast and substantially developing area of law and practice that textbooks have to be updated more frequently. Nevertheless with the first edition having been published in late spring 2008 and the second edition in early spring 2012, this third edition, 2013/2014, is coming hot on the heels. The changes over this period since last writing in autumn 2011 have been very substantial and affect all family law practitioners.
The Hague 1996 Children Convention had been much delayed in its implementation, in part because of the necessity for the EU to move en masse and sign up. After a long period of news of no news, suddenly there was progress and almost immediately there was implementation. Many other countries around the world were already signatories. It will complement the Hague 1980 Child Abduction Convention but also greatly assist in the international recognition of children orders, and well beyond the EU.
The Hague 2007 Child Support Convention, also covering some spousal maintenance, is expected to come into force in autumn or winter 2013, with a fairly similar model to that of the EU Maintenance Regulation. Both conventions have required changes in domestic rules and procedures. Other parts of the FPR have been changed since the second edition to take account of international elements.
The EU Maintenance Regulation was still relatively newly in force at the time of the second edition. Moreover with little or no advance consultation or information about its intended wide sweeping consequences, there were elements within the law which only became clearer as to its implications six or nine months or so after it’s introduction. This is an appalling state of affairs but the English family law professions are now getting very used to finding out what is EU law some considerable time after the law has been introduced! One policy objective of the EU is to create more certain, clearer and more predictable law. One way of achieving this would be advance consultation with the lawyers across Europe who have to implement these laws. This third edition takes the opportunity to have a slightly more reflective consideration of the impact of this law although we are still awaiting judicial guidance on a number of areas of uncertainty.
Relocation law had become stuck in a rut for about 30 years. For right or wrong, case law had become the equivalent of statute law. The tide turned in 2011 with MK v CK and the best interests of the child are now explicitly the criteria as they always should have been. There have been a number of case law developments since that landmark decision.
With a greater number of cases being decided by reference to EU legislation rather than domestic legislation, the appropriate forum for the creation of clarity and understanding of the intention of the legislation is the European Court of Justice rather than domestic appellate courts. There have now been several children cases heard in the European Court of Human Rights. Accordingly I took this opportunity to include extensive sections on the procedure and form of both of these courts. Their decisions will play an increasing part in the content of our law.
A very helpful form of making progress in international cases is through judicial communication and collaboration. Most obviously seen in the Hague Child Abduction Network Judges and in the European Judicial Network, I was extremely grateful to Edward Bennett for agreeing to write a chapter on the work of the office of the Head of International Family Law Justice for England and Wales. He served as legal secretary 2012/2013 although writing in his personal capacity. This gives huge insights into the work being undertaken and where practitioners can assist the judiciary and vice versa.
This is also appropriate to acknowledge the monumental contribution made over many years by Mathew Thorpe to international family law, both for the benefit of England and Wales and for the entire global family law community. I wrote about this in the preface to the first edition five years ago and even more important work has been undertaken subsequently. He has stoically defended the best of the common law tradition and encouraged us to embrace the actuality and the spirit of are now close relationship with the civil law, principally through the EU. His contribution has been in a succession of cases across the broad spread of international family law work, his work as Head of International Family Law Justice for England and Wales and tirelessly working with judges in other jurisdictions, governments and civil servants and speaking at countless conferences around the world. It is not an underestimate to say we would not have our present international family law if it were not for his colossal contribution.
I am grateful to our other additional contributory authors, Tim Scott QC on general international children law matters and Helen Blackburn on child abduction. I am grateful to the continuing authors; Helen Blackburn (adoption and legal aid), Nadine Finch (immigration), Louisa Ghevaert (surrogacy), Katherine Lindells (same-sex relationships), Louise McCallum (forced marriages), Nazia Rashid (Islamic issues), David Salter (marital agreements and pensions) and Ann Thomas (relocation).
I would like to express my continued gratitude to Hugh Logue of Jordans who rather rashly invited me a couple of years ago to do a regular opinion piece on international family law for the then to be re-launched Jordans weekly electronic newsletter. It has been the most fascinating and enjoyable project, although not without its demands of deadlines! Some items have been very serious and important and others fairly light commentary on certain developments and cases here and abroad. The active readership and following has grown hugely, a further testament to the importance of this area of practice. I have also been very grateful continually to Liz Walsh, the doyenne of international family law publishing. My publishers, Greg Woodgate and Kate Hather, have been highly encouraging with good ideas for developing the book.
As ever, I’m exceptionally grateful to my colleagues at The International Family Law Group LLP in London. Michael Allum, assistant solicitor, helped with a considerable amount of initial research and Natasha Hotson, trainee, looked up many citations. I appreciate the exceptionally fortunate position to be in a firm which day by day receives enquiries from around the world including many law firms here and abroad about the most incredibly complex of issues of law and practice. The interwoven facts and matters of law sometimes defy reasonable belief but this is the life of many international families. As I set out in the concluding chapter, I remain saddened that despite good intentions in many places the position for these families and their children are not getting easier.
I’m particular grateful to my wife, Ann, all her considerable support without which this book would never have come into creation.
