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Legal Focus
JULY 2013
client. We should not have to do so. This is a poor, misconceived EU law which often disadvantages the more vulnerable party. But it is the law and our practice has met this challenge.
How differently is family law operated abroad?
As most of our cases involve working closely with lawyers abroad, we see significant differences. There are countries such as Australia, the US, Canada, Hong Kong and Singapore, Germany and a couple of others which are very similar to the UK. Family lawyers are highly specialised, practices are geared up to international cases and they are used to the very distinctive elements.
But there are so many countries, including in the EU, where there are relatively few specialists, who are in any event usually only in the capital cities. Outside those few specialists there is very little awareness of the international aspects. Moreover although we complain about our family justice system and court delays, they are nothing compared to the incredible delays and cumbersome procedures in some EU and other countries.
I have complained to the EU that it is pointless giving us more and more complicated EU cross-border legislation for families unless they themselves do something to improve both the court systems and the family law professions in a number of EU countries. They seem blissfully unaware that layering upon layering of complex legislation without either the family justice systems or specialist family law professions able to cope will lead to that legislation simply not working. Again it has seemed that the EU has an agenda and its own timetable for rushing legislation into force without dealing with the fallout and consequences. As so often, it is the international families and their children who suffer.
What are your worries for international families? I have several real concerns.
National families rarely get a look in when it comes to UK domestic legislation. Family law is very low on any political agenda. But international family law is even lower down.
Rarely do any politicians take notice of these problems. It’s too easy to put the blame on another country or on organisations like the EU. Some international families are relatively transient, perhaps in one country for a few years by reason of work posting but otherwise not putting down deeper roots. So they are any easy group to ignore. But national governments would not allow their national families to have to put up with the complicated arrangements which are imposed on international families. As lawyers we can only highlight the problems to any who will listen. But at times international families and their children appear almost to have a shadowy existence, not part of any particular country and with no country taking responsibility for them.
Yet international families are at the forefront of where we will all be in the future. They are shopping in international malls, using international currencies, with international means of communication, working for international companies, speaking several languages, sympathetic to the outlook of several countries and being very comfortable with their international existence. These families were a few in number but they are now very many. I find it tragic that insufficient help is being given by national and international governments.
I am also concerned that they are caught in a political maelstrom. Within the EU there is a predominately civil law continental European approach which the EU is constantly trying to impose upon and overcome the English common law system. England resists. An unnecessary amount of time and energy is being spent by the EU on this dispute. Most recently the UK has surrendered exclusive competency to the EU in respect of any international family law arrangements. International children have suffered badly because the UK is no longer able to enter into arrangements with our historic close countries in respect of child abduction e.g. with Singapore. This was an abandonment of sovereignty which went too far and against the best interests of children. It was done without any consultation with the legal profession.
I am highly committed
to an EU which works beneficially in cross-border cases but of late it has gone too far in its attempt to create universal, extra-EU laws.