John Bolch on the international nature of family law

Divorce|June 9th 2014

When I began practising in the 1980s, cases with an international element were a relative rarity. I recall being involved in a child abduction case where the mother had brought the children to England from Australia and was required to return them (I can still see the children’s’ toys in a box in the office, ready to be sent back). There was also the odd the odd divorce case in which the parties had bought a villa on the Algarve. However, such cases were exceptions – the vast majority of the work I did was firmly rooted in home soil.

How times have changed. Now, hardly a day passes without coming across the report of a case with an international element.

Take last week, for example.

On Wednesday I came across the case B v B, which concerned a father’s application under the Hague Convention for the return of his daughter to Lithuania. The mother had unilaterally brought the child, now aged nine, to this country last December, as she intended to work here. She raised three defences to the father’s application: that the father consented to her bringing the child here, that the child objected to being returned to Lithuania and that the child would be exposed to an unacceptable or intolerable risk of harm, physical or psychological, or otherwise, if she returned. Mr Justice Mostyn in the High Court did not find any of the defences made out. Accordingly, he ordered that the child be returned, although he gave the mother three weeks to make the necessary arrangements and to ‘let the child down gently’. He also made an order prohibiting the father from molesting the mother or from approaching within 100 metres of the mother’s flat in Lithuania, in the light of an admission of violence by the father.

B v B was followed on Friday by the ‘inverse’ decision: TF v PJ, in which the mother had been ordered to return her child to Italy, but successfully applied to revoke that order. The reason for this unusual decision, again made by Mr Justice Mostyn, was that since the original order there had been a supervening change of circumstances which had destroyed the basis upon which the order had been made. That change was that the mother had suffered a ‘total psychological and psychiatric collapse’, which made her unable to return to Italy (it had originally been envisaged that she would return and continue to be the child’s primary carer, the father being unable to provide care himself). It was argued on behalf of the father that the court did not have jurisdiction to revoke the order (against which the mother had already unsuccessfully appealed), but Mr Justice Mostyn found that he did have jurisdiction, and accordingly set aside the original order.

Also on Friday the child relocation case DH v CL & Others appeared in my news feed. This was also rather unusual, as it concerned an application by the father for permission to permanently relocate the child, a 7½ year old boy, to the Kurdistan region of Iraq, and if it failed the father was likely to return anyway, in which case the child might end up in foster care, as the mother was unable to care for him. The application was not opposed by the mother. It was heard by Mr Justice Cobb in the High Court, who concluded that the move would promote and enhance the child’s best interests, and therefore granted the application.

As these cases demonstrate, family lawyers and courts now routinely deal with cases connected with all parts of the world. This reflects the global society in which we all now live, but also of course presents particular challenges, for example when considering the different cultures in which children may be raised and the different legal systems involved.

And those challenges are only likely to increase – the Office of the Head of International Family Justice reported back in 2011 the year-on-year increase in the number of cases referred to the Office since it was created in January 2005. The number of ‘specific case requests’ rose from 3 in 2005, to 27 in 2007, to 180 in 2011, with a projected figure of 240 for 2012. Those referrals are, of course, just the tip of the iceberg of international cases.

Clearly, all involved in the family justice system must now ensure that they are both prepared and equipped to deal with international cases and the particular challenges they pose.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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