The sins of insularity

Family Law|November 4th 2015

I’ve often heard it said that we have the best legal system in the world. Of course, such statements are utterly meaningless, unless the speaker has studied in depth every other legal system, and even then any comparisons will be open to argument. Nevertheless, it is I suppose natural to believe that one’s own system is better than others, and certainly this belief long seems to have been widely held amongst lawyers in this country, and probably in others too.

This gives rise to problems, however, when two legal systems meet. I have spoken here on a number of occasions about the international nature of family law, with modern families and their members crossing international borders with impunity. As a result, legal systems are meeting with increasing frequency, often resulting in tensions between their respective merits.

On Monday the President gave the leading judgment of the Court of Appeal in N (Children : Adoption: Jurisdiction), a case concerning two children who were born in this country to Hungarian parents. The children were subject to care and placement proceedings but the judge transferred the proceedings to Hungary. The local authority appealed against the transfer, but the Court of Appeal dismissed the appeal.

I’m not going to go into the details of the case (which are beyond my area of expertise), but will instead concentrate upon one section of the President’s judgment, in which he discusses the issue of ‘judicial comity’, or the principle that one jurisdiction should respect the laws and judicial decisions of another jurisdiction.

Referring to previous judgments, the President made the following points:

  1. “The English family justice system is now part of a much wider system of international family justice exemplified by such instruments as the various Hague Conventions and, in the purely European context, by BIIR. Looking no further afield, we are part of the European family of nations. We share common values.”
  2. “The court should not descend to some kind of divisive value judgment about the laws and procedures of our European neighbours.”
  3. “We must take it that the child protection services and the judicial services in [another country] are no less competent than the social and judicial services in this jurisdiction.”
  4. We should avoid “the sins of insularity” and recognise “that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them”, accordingly we must “both respect and trust our judicial colleagues abroad”.
  5. Finally: “it is not permissible for the court to enter into a comparison of such matters as the competence, diligence, resources or efficacy of either the child protection services or the courts of the other state.”

He could hardly have put it more clearly. When it comes to other European nations the days when we believed that our system should prevail because it is superior to others are gone. There are more ways than one to do a thing, and it is not for us to say which is best. The same would no doubt apply to other nations beyond Europe which share our values.

Whether we like it or not (and I’m certainly not going to get into an argument here over whether the UK should remain a member of the European Union), we are a part of Europe (even if we leave the Union) and there is nothing that can be done to turn back the clock. The die has been cast: families are spread around the continent and will continue to traverse borders (OK, perhaps visiting these shores less frequently if we leave the Union), so differing legal jurisdictions will continue to rub shoulders. In such a situation it would be destructive indeed if we allowed one jurisdiction to claim that it was superior to the others.

The full judgment in N (Children : Adoption: Jurisdiction) can be read here.

Author: Stowe Family Law

Comment(1)

  1. spinner says:

    It’s certainly the best for the lawyers, plenty of litigation and fat fee’s but for the consumers of the English courts it’s got to rank among the worst. Modern European countries have much better family courts with largely predetermined formula’s to decide outcomes which stops the families being asset stripped by lawyers and that money can in turn be spent on the children along with the reduction in conflict there is a much higher likelihood of both parents continuing to be part of the children’s lives which provides for a much better long term outcome for the children emotionally.

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