Scottish Lord President Lord Carloway and outgoing head of the English Family Division Sir James Munby have launched a welcome initiative to improve cross border co-operation in family cases.
Their new judicial protocol will provide for the direct exchange of information between judges in intra-UK cross-border cases involving children. Liaison judges will be appointed in each country – the Scottish ones will be the two family judges Lord Brailsford and Lady Wise. When legal proceedings are taking place in Scotland and England or Wales judges can communicate and exchange information via the liaison judges.
While the detailed arrangements are mainly of interest to the judges who will make use of it, the preamble to the Protocol makes some interesting points:
- Recognise that Scotland and England & Wales share a common commitment to the rule of law and to the principle that the welfare of the child is the paramount consideration when his or her needs or rights are considered by the courts;
- Recognise that in cases involving children which have a cross-border element, judicial co-operation is of critical importance;
- Consider that cross-border judicial co-operation should include the early identification of cases, clear lines of communication, the free flow of relevant information and the facilitation of effective case management;
- Recognise that the removal of children from one country to another may have a harmful effect on such children;
- Recognise that it is desirable that in the regulation of cross-border judicial communications as between Scotland and England & Wales the judiciary has regard to the Principles for Direct Judicial Communications as published by the Hague Conference on Private International Law;
- Recognise the importance of negotiation, mediation and conciliation in the resolution of family disputes where appropriate; and
- Recognise the value of ongoing cross-border judicial engagement in the preceding matters.
- enforcement of court orders between countries is still cumbersome;
- CAFCASS staff seem reluctant to come to Scotland when doing court reports, whereas child welfare reporters are more willing to travel to England
- within the UK it would be desirable to have a clear understanding of which court deals with a cross-border case. At present it becomes a race to raise proceedings, whereas in international cases there are reasonably clear rules on which court should be acting;