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International Family Law Practice, The
Provides comprehensive coverage of the international elements of English family law
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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:
- Consideration of the possible impact of Brexit on international family law matters
- The specific rules for allocation of cases, with certificates of complexity, to High Court judges
- The practical aspects of what lawyers need to do to gain priority of proceedings (‘lis pendens’)
- The detailed interaction between Brussels II Revised and the 1996 Hague Convention
- Guidance concerning allocation of international surrogacy parental order applications
- Analysis of the applicable principles in internal relocation matters and the development of case-law on external relocations
- Significant new case-law on public law proceedings with an international element
- Recent EU Maintenance Regulation decisions
- A new chapter on Female Genital Mutilation
Also available online
This book is part of Family Law Online which includes an International module that combines all the international family law content and allows you to access it all in one place with links between related Family Law Report cases. Find out more >>
- Introduction and Practice/Case Management
- European Imperative in International Family Law
- Recognition of Foreign Marriages and Divorces
- Same-sex and Cohabitation Relationships
- Stays in the UK, Europe and Worldwide
- Domicile, Residence and Nationality
- Financial Provision after an Overseas Divorce: MFPA 1984, Part III
- International Injunctions and Protective Orders
- Enforcement and Registration of Financial Orders
- Trusts and Corporate Interests
- Marital Agreements
- International Children Issues
- Applications to Take Children Abroad
- Child Abduction
- International Adoption
- Forced Marriage
- Care and Placement Proceedings Involving International Families
- Domestic Violence
- Affidavits, Statements of Truth and Apostilles
- Cross-border Appropriate Dispute Resolution (ADR)
- Legal Aid
- Distinctive Aspects of Islamic Law
- Immigration Issues
- International Judicial Collaboration
- The Future
Review of the previous edition
"If you're a family law practitioner whose work has international ramifications or dimensions, this book should be an essential purchase.... this is the book to which you should turn to if you wish to increase your expertise and authority in this rapidly expanding field....Flow charts, bullet points, checklists, not to mention the detailed table of contents, make it easier for the hard pressed practitioner to look things up....one massive but convenient volume, which we say is fast becoming the definitive work in this area"read the review in full
Phillip Taylor MBE and ELizabeth Taylor of Richmond Green Chambers
The Latest Key Developments in International Family Law - Now in a New Fourth Edition
"This book has come tobe a highly regarded and invaluable resource for practitioners involvedprofessionally in international family law...‘the explosion ofpublic law cases with an international element’ following on from theintroduction of the single unified family court in 2014...law cases are nowbeing dealt with by ‘all levels of judges’ as a consequence...its purchase all themore necessary...‘a practical guide tohelp very able family lawyers accustomed to dealing with purely national casesto understand the international elements arising in a case.’...this book is clearlywritten and easy to navigate...this book provides areliable and expert guide to virtually every conceivable issue in internationalfamily law and is therefore the ideal work of reference for barristers,solicitors and the judiciary."read the review in full
Phillip Taylor MBE and ELizabeth Taylor of Richmond Green Chambers
Review of A Practical Guide to International Family Law
"David Hodson is recognised as pre-eminent in the field of international family law and demonstrates a mastery of the complexities involved ... provides an extensive introduction to the subject with suggestions as to how to recognise and than tackle an international case depending upon the individual practitioner's knowledge and experience ... The book flags up the questions that need to be asked and guides the practitioner as to where to find that answer ... This book has been awaited with great anticipation by myself and my colleagues. It has many gems and includes useful tables and well set out guidelines throughout with handy hints ... comprehensive overview of the subject and an interesting readFamily Law Week
2016-2017 EditionFairly early on the morning of Friday 24 June 2016, Family Law woke, went downstairs and turned on the television news, saw the percentages of the EU referendum vote on the screen, saw it was much closer than had been anticipated and was heading to make an early morning cup of coffee when a few words from the television didn’t seem to make sense. Family Law paused and returned. Indeed it was closer than had been anticipated. But the closeness was not the point. The vote was to leave the EU. At which point everything changed; for Family Law both national and international, for our national law in general, for the UK and across the world.1
This fifth edition is being written only two months after the referendum yet so much has already happened in UK political life. Progress with legislative change has had to wait upon government and ministerial changes and then for civil servants to be briefed. But some indications can already be given.
Moreover this 5th edition will be regularly digitally updated until the intended 6th edition, probably in Autumn 2018, which will incorporate new legislation at the point of leaving the EU. In the meantime the UK has at least another two years of EU law continuing to apply, including new EU family laws, hence the importance of this edition.
In the fourth edition, it was said that the issues which family law faced with the EU were a microcosm of the UK relationship generally; an acknowledgement of the historic, commercial and cultural closeness with Europe, yet real anxieties about the direction, new laws and ambitions of the EU. The majority in the referendum voted to leave and the new Prime Minister, Theresa May MP, has made it clear this is what will happen. Family law will be part of this exit process. It will be a period of much change for the country, including for family law.
But certain elements will continue. Whatever happens about EU movement of people with the UK after departure, England and Wales will remain one of the most international countries in the world with very many international families from throughout the world living here and very many families from England and Wales living abroad. There will remain a huge need for international family law, and experienced practitioners. It may be that laws emanate from The Hague rather than Brussels but many will seem fairly similar3 albeit having a global reach rather than separating the legal globe into the EU v non-EU.
Throughout its time as a member of the EU, the UK has had an ambivalent attitude. It has been looking across the Channel and the North Sea at continental Europe, yet has looked across the Atlantic and around the world at the very many countries with which the UK has always had and/or now has a very close connection. The UK is truly a global international country and not just a European country. In the family law context, the UK has very many family law connections around the world and probably more than any other EU member state. Moreover as the original common law jurisdiction, it has far closer connections with common law countries around the world than with the EU. The UK is a major innovator, creator and developer of family law trends, practices and ideas and is much followed around the world. The EU departure means this country will be free again4 to enter into bilateral and multilateral treaties with non-EU countries, a cause of real opportunity for closer dealings with countries around the world.
The departure from the EU will be the opportunity for the UK to work with countries around the world to develop the best possible family law and practice for better outcomes for international families and their children. The period since the previous edition has again seen many changes. Following the introduction of the unified Family Court there are also now specific rules for allocation of cases to High Court judges with certificates of complexity. We now have further case-law in respect of the EU Maintenance Regulation. There have been an increasing number of CJEU decisions of considerable importance including, crucially, the practical aspect of what lawyers have to do to gain priority of proceedings, lis pendens. We have added an extra chapter on FGM given its significance in the international family law context and I am grateful to the author, Zimran Samuel. I remain grateful to my previous contributors who have yet again agreed to write chapters.
The authors are Edward Bennett (international judicial collaboration), Helen Blackburn (adoption, legal aid and child abduction), Nadine Finch (immigration), Louisa Ghevaert (surrogacy), Katherine Landells (same-sex relationships), Louise McCallum (forced marriages), Nazia Rashid (Islamic issues), David Salter (marital agreements, trusts and pensions), Zimran Samuel (FGM), Tim Scott QC (general international children law matters), Ann Thomas (relocation) and Aidan Vine QC (public law). I have written the chapters on case/practice management, the European imperative in international family law, recognition of foreign marriages and divorces, stays of proceedings, domicile, residence and nationality, financial provision after an overseas divorce, international injunctions, enforcement and recognition of financial orders, domestic violence, service, affidavits and statements of truth, evidence and ADR as well as the first three appendices.
My publishers, Greg Woodgate and Kate Hather, have been highly encouraging with good ideas for developing the book.
As ever, I am exceptionally grateful to my colleagues at The International Family Law Group LLP, London. Stuart Clark, Michael Allum and Emma Nash with Emma Chowdhury (web links) helped with a considerable amount of initial research. 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, international connections 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 is not getting easier.
I am exceedingly grateful to Professor Nigel Lowe for writing the Foreword. I am particularly grateful to my wife, Ann, for all her considerable support without which this book would never have come into creation or been seen in its subsequent incarnations.
Finally and as an undoubted highlight for me, I was absolutely delighted in the Queen’s Birthday Honours List in June 2014 to receive the OBE for ‘services to international family law’. I felt very strongly that it was because of the incredible work by many people in this area of which I have been most fortunate to be a part. Conversations with Her Majesty are supposed to be confidential but, at the risk of being carted off to the Tower, at the Investiture in early December 2014 at Windsor Castle one of the things Her Majesty said to me was, in terms, international family law sounds very complicated. Yes indeed, ma’am, it certainly is!
Thank you to Jordan Publishing for realising the importance of this work and the need for this book. It is a most interesting time to be involved in the international aspects of family law.
David Hodson OBE MICArb
2016-2017 EditionThe International Family Law Practice is a huge and impressive work and it is my continuing pleasure to write the Foreword to this edition. That this is already the 5th edition of a work first published in 2008 (then David Hodson’s A Practical Guide to International Family Law Practice) bears testimony both to the continuing exponential growth in international family law litigation and to the success of and need for this work.
Since the publication of the 4th edition in 2015 there has been a plethora of CJEU and UK Supreme Court decisions and there is now beginning to be significant case law on the 1996 Hague Convention on the Protection of Children and the 2007 EU Maintenance Regulation. These developments are, of course, reflected in the new edition. But, as David Hodson says in his Preface, all these developments are to an extent overshadowed by the 23 June 2016 Referendum vote for the UK to leave the EU. As we write, the exact date of the exit is far from clear (though it is unlikely to be before March 2019) and the terms of the exit are unknown. It may be that the UK will seek to continue to be bound by some of the EU instruments governing Family Law, the revised Brussels II Regulation in particular, and it is to be noted that the UK has ‘opted into’ the negotiations to reform that instrument. But whatever the final outcome, the EU Regulations referred to in this work will continue to apply for some time yet.
In the past the Preface made the point that as so many practitioners now deal with international family law work it can no longer be considered a distinct specialisation. But that, however, is not to deny its complexity and it is the enduring strength of this work that it provides practitioners with a basic point of reference across the whole international family law field. The International Family Law Practice is squarely aimed at the practitioner and is replete with good practice advice and clarifying flowcharts. It is clearly written by a team of experienced practitioners, not least by David Hodson himself, whose long involvement in international practice was recognised by the award of an OBE in 2014.
An impressive feature of the work is its width of coverage. Its 30 chapters deal with not just the obvious issues such as recognition of foreign marriages and divorce, same-sex and cohabitation relationships, financial provision after an overseas divorce, marital agreements, child abduction, child relocation, surrogacy, international adoption but also less obvious but really useful topics such as enforcement and registration of orders, stays in the UK, Europe and worldwide, pensions, trusts and forced marriage. There are also a number of useful practical chapters dealing with service, affidavits and statements of truth, evidence, cross-border alternative dispute resolution, international judicial collaboration and legal aid. The book also includes chapters on Islamic Law and immigration issues and a new chapter (Chapter 30) on FGM. The work begins with a couple of chapters explaining what international family law is and why practitioners need to know about it and also on practice and case management. The interesting concluding chapter looks to the future.
Not to be overlooked are the indispensable Appendices which not only contain the disparate relevant domestic and international legislation but also various Protocols and international Declarations. In short, The International Family Law Practice has established itself as an indispensable part of the practising family lawyer’s library and an equally useful work of reference for the judiciary and the academic community.
Emeritus Professor of Law, Cardiff University and Consultant to Number
Fourteen of Gray’s Inn Square
David Hodson OBE, Partner at The International Family Law Group LLP, London. English accredited family law solicitor, mediator, arbitrator, Deputy District Judge of the Central Family Court, London, Australian qualified solicitor and barrister.
With specialist contributions by:
Timothy Scott QC
Aidan Vine QC
2016-2017 EditionCHAPTER 1: INTRODUCTION AND CASE/PRACTICE MANAGEMENT
International family law has been accepted as a specialisation by the Law Society, the Solicitors Regulation Authority (SRA), the judiciary and others. Yet practitioners, solicitors, barristers and judges, without much prior experience of international cases or knowledge of international law, sometimes have little choice but to deal with the often complex international elements arising for their clients and need quickly and practically to understand the issues. All family law practitioners now often come across an ‘international’ case and must be aware of the relevant issues. There are also now many family lawyers who regard themselves as specialists in international family law.
This book is intended to help explain the many international elements of family law from basic explanations to complex arguments of national and international laws. It presumes a good knowledge of domestic family law. Naturally, it is also written for family lawyers who are very experienced in international cases, in England and Wales and abroad.
It is deliberately intended to be practical in its application of the law and in the practice of family law. It highlights areas of good practice. By its size and with the ever expanding breadth of international family law, it cannot cover every detail of laws or procedures affecting international families. Guidance is given where research and additional reading is available.
Family law practices, law firms and chanbers, need to run efficiently and cost effectively. International family law creates particular demands, stresses and strains and so the law practice must be especially ready for the different issues arising and willing to commit the time and resources to these cases and these clients. Specialisation and expertise is needed. Lawyer contacts abroad are essential. Good case management is vital. The best outcomes derive from the best prepared practitioners and practices.
1.1 WHY DO I NEED TO KNOW ABOUT INTERNATIONAL FAMILY LAW?
International family law work used to involve only wealthy clients and highly specialised practitioners. Accordingly it was safely left, indeed consigned, to an easily disregarded black hole. That black hole imploded many years ago, although the impact has only been fully felt in the last decade.
The past couple of decades have seen a massive movement of people around the globe for reasons of work, personal travel and personal/political/financial betterment as well as significant numbers fleeing the situation in their home country. Within the European Union (EU), this was accelerated by the policy of the free movement of labour, even further accelerated with the eastern European accession states.
The inevitable consequence has been a vast increase in the number of international relationships, families and children. Equally inevitably, there has also been an increase in relationship breakdown and disputes involving these international families. For some, the international element has ultimately been of no relevance in their family disputes, which are resolved within one country by that country’s national laws and where all of the marital assets are situated and where the children are living.
However, very many international families have real and ongoing connections with more than one country. It is here that such families look for help to an international family law and to lawyers able to advise them on international family law. On both counts, these international families are sometimes disappointed.
There is still relatively little family law, certainly outside the EU, for the direct benefit and application of international families. Actual pure international family law, ie law which is international in content and application, is moderately limited, although growing fast.1 There are now many family laws within the EU2 but some are highly unsatisfactory and out of step with the conciliatory doctrines and settlement/appropriate dispute resolution (ADR) orientated philosophies of the practice of domestic English family law.
Moreover by being so continental European-centric, many EU laws are very alien to the culture of law and practice in England. There are international children multilateral agreements, especially from The Hague, which work very well but are sometimes subject to very different national interpretations and sometimes inadequate resources of national laws and courts.
Instead too often these international families find a hotchpotch of historic laws, inconsistently or nationalistically applied and interpreted, minimal consistency and little coherent philosophy, thereby failing many families. They search in vain for a perceived sense of justice, fairness and ease of resolution. Sadly it then gets worse for these families.
Although international family law has had to make the leap from mega-money couples to average families, the family law practitioners across the world dealing with average wealth families have too often not made the same leap and learnt about international family law. This is for a very understandable reason: it is a complex, alien and quickly changing area of law. Its concepts and approaches are very different to national law. It has less national scrutiny, often less professional commentary and mostly minimal advance consultation or publicity. The level of knowledge and practical experience of some specialist domestic family lawyers in many westernised countries across the world is relatively low although increasing. In context, the standard and level of knowledge about international cases in England is much higher than almost every other country and profession across the world.
Despite its small size, England is probably the world’s leading family law jurisdiction for international cases. It has very many and diverse connections around the entire world. Naturally it has very close connections within Europe. It has strong links with North America. It retains close family links with the (existing and former) Commonwealth countries including across Africa, the Caribbean and the Asian subcontinent as well as Australia, New Zealand, South Africa, Hong Kong and elsewhere. It is home to many families from the Middle East, Russia, China and Southeast Asia and other regions of the world. No other country has the breadth and extent of international families, moreover spread across the whole country and not in just a few big cities.
There is a huge market of work awaiting law practices. International laws affecting international families will only increase. The specialist family law practitioner can no longer neglect this very important area of work, affecting many clients of all law firms and chambers. The clients of the specialist family law practitioner now expect an ability to deal with the international dimension quickly, knowledgeably and expertly ...
The International Family Law Practice Online is updated twice a year. The May update includes timely case-law, practice guidance and all changes to relevant source material, including:
Changes arising from the regionalisation of divorce centres
Case management complexity criteria in respect of financial remedies work
Recognition of foreign marriages and divorces
Financial provision after an overseas divorce
Relocation issues and child abduction
Care and placement proceedings involving international families
Request a FREE 14-day trial to the complete Family Law Online service here >>
- Adoption (Intercountry Aspects) Act 1999
- Adoption and Children Act 2002
- Care Planning, Placement and Case Review (England) Regulations 2010 SI 2010/959, regs 3 to 6 and 12
- Child Abduction and Custody Act 1985
- Children Act 1989, Schedule 2, para 19
- Children and Families Act 2014, Pt 7
- Civil Partnership Act 2004, ss 212–238, Sch 20
- Domicile and Matrimonial Proceedings Act 1973
- Family Law Act 1986
- Family Law Act 1996, Pt 4A
- Family Procedure Rules 2010 and Supplementary Practice Directions (extracts relevant to international work)
- Human Fertilisation and Embryology Act 2008, ss 33, 35, 54
- Marriage (Same Sex Couples) Act 2013, ss 1, 9-11
- Matrimonial and Family Proceedings Act 1984, Pt III
- President’s Guidance – Communicating with the Home Office in Family Proceedings (April 2013)
- Surrogacy Arrangements Act 1985
- EU Brussels I Recast 1215/2012
- EU Brussels II Revised 2201/2003
- EU Practice Guide for the Application of the New Brussels II Regulation
- EU Applicable Law Regulation 1259/2010
- EU Enforcement Order for Uncontested Claims 805/2004
- EU Legal Aid Directive 2002/8
- EC Lisbon Treaty 2007, Art 81
- EU Maintenance Regulation 4/2009
- EU Mediation Directive 2008/52
- EU Mutual Recognition of Protection Measures in Civil Matters Regulation 606/2013
- EU Protection Order (in Criminal Matters) Directive 2011/99
- EU Service Regulation 1393/2007
- EU Taking of Evidence Regulation 1206/2001
- EU Victims' of Crime Directive 2012/29
- Lugano Convention 2007/712/EC
- Strasbourg Legal Aid Agreement 1977
- Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence CETS No: 210 (Istanbul Convention)
- Council of European 1980 Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children
- Vienna Convention on Consular Relations 1963, regs 36 and 37
- Hague Convention on Child Abduction 1980
- Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007
- Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Mediation
- Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Means for Protection of the Child 1996
- Explanatory Report on the 1996 Hague Convention
- Department of Education Advice on 1996 Hague Convention
- Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965
- Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970
- Emerging Rules Regarding the Development of the International Hague Network of Judges and Draft General Principles for Judicial Communications (the "Emerging Guidance")
- Cairo Declaration of 17 January 2005
- UK Pakistan Protocol Child Abduction Protocol
- Muslim Family Law Ordinance 1961
- United Nations Convention on the Rights of the Child 1989
- Washington Declaration on International Family Relocation 2010
David Hodson - Recognition of Foreign Marriages and DivorceListen/Watch
David talks about the issue of recognition of a foreign marriage, divorce, nullity or judicial separation, including polygamy in England. It is of fundamental importance for the status of the parties and any children, for possible other proceedings and other aspects of personal and community life. It is often a preliminary in a family law case before deciding on other courses of action. Public policy considerations are strongly to the fore in England endeavouring to recognise foreign marriages and divorces wherever possible.
David Hodson - The European Imperative in Family LawListen/Watch
David discusses how many issues in international family law are now European centric, or at least follow trends created from EU law. A number of laws affecting international families originate from Brussels and many provisions apply between the EU states. This trend will continue and increase.There are now many laws, procedures and professional co-operation within Europe. Understanding the European context is therefore important.
David Hodson - Relocation of ChildrenWatch
David discusses the latest law and practice which is needed to successfully handle any relocation dispute, whether it ends up in court or not. Whether the proposed move is within the United Kingdom or international, the consequence of either allowing or refusing a relocation application is usually of the greatest importance to the parents and children involved.
Lucy Loizou - Trusts in the Foreign ContextListen
Lucy looks at offshore trusts and companies, and some of the most complicated elements in sorting out financial arrangements on divorce.
Sometimes set up to shelter and protect family assets from fiscal and/or third-party claims, thereby working to the financial benefit of the family during the marriage, they backfire on divorce against the claimant and are often a maze of tangled entities.
Moreover, investigating offshore trusts may bring the family lawyer into conflict with highly resistant trustees and trust lawyers in the jurisdiction where the trust is situated.
Lucy Loizou - Freezing Orders in International ContextListen/Watch
Lucy reminds us to always take account of the ease with which some parties, with international connections, can shift their assets between countries very quickly. How to obtain orders to maintain the status quo and preserve assets and how injunctions, especially those having worldwide effect, are some of the most draconian and powerful weapons available to the English family court and should be only exercised with considerable care, in appropriate circumstances and mindful of the impact on third parties and international comity.
Lucy Loizou - Schedule 1 Claims and TOLATAWatch
Lucy discusses the latest practice, law and procedure in respect of applications under Schedule 1 of the Children Act 1989 (which provide an important way of ensuring children’s financial needs are met where their parents are unmarried). Also considers the overlap in jurisdiction with settlement claims under the Trust of Land Act 1996, where property is owned abroad.
Lucy Loizou - Marital Agreements
Marital and other family agreements are not, even now, strictly speaking, binding on the English family courts, whether made in England or abroad. This is in stark contrast to many other western family law jurisdictions where they bind the courts, however unfair they may appear at the time of implementation and however inadequate the advice before entering into them. This causes difficulties in a number of cases where parties from abroad expect the English family court to follow the agreement.
Hannah Budd - Financial Claims After a Foreign DivorceListen
Despite a divorce abroad, the English courts still have power to make a financial order as if the divorce were in England and Wales.
Hannah looks at the discretionary power with distinctive court procedures and how it will be readily used if no adequate financial provision was possible abroad.
Hannah then looks at how the English courts had become reluctant to use this 1984 legislative power. But the Supreme Court in 2010 in Agbaje has restored the previous understanding of this statutory opportunity. The purpose is to alleviate the adverse consequences of no adequate financial provision being made on divorce by foreign court in a situation where the parties had connections with England.
Hannah Budd - Pensions in the International ContextListen
Hannah discusses how pensions can often be the second most substantial asset of a family, sometimes the most substantial. Individuals who have worked abroad may find that they have built up pensions in various countries. Some pensions are deliberately held abroad. H Budd considers the nature of pensions within an international context, especially enforcement against a foreign pension and enforcement against a UK pension following a foreign divorce settlement.
Helen Blackburn - Child AbductionListen/Watch
Helen discusses this complex area of family law where the international community has shown the greatest co-operation. Practical steps can and should be taken by parents to minimise the possibility of abduction.
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Published on behalf of the International Society of Family Law
The practice title for family lawyers engaged in/dealing with issues European and worldwide