Cross-Border Family Disputes
A European Parliament move to revise EU law in order to improve legal certainty in cross-border family disputes concerning children has been welcomed by a leading expert in international family law, Rodney Hylton-Potts of Hylton-Potts Legal Consultants. Robert Matthews reports
Analysis
Rodney Hylton-Potts considers cross-border family disputes involving children to be a legal area that needs tackling. MEPs have recently agreed that such disputes and the protection of children’s rights, especially of those with separated parents, are matters that the EU needs to address.
As he points out: “At present, we have directly conflicting national laws on outcomes, jurisdictions, stays, divorce, child support, financial outcome and the best arrangements for the children. We have laws which favour the first party to break up the marriage, and laws which favour the wealthier.
“Practice on allowing a child to be taken abroad permanently differs dramatically. Some countries are very slow and reluctant to return an abducted child. Others operate the Hague Convention, and have a sophisticated and rapid way of handling it with access to emergency legal aid.
“The time has clearly come for a more joined-up international law for our international children.
“Currently, the main problem experienced by practitioners and clients relates to the lack of recognition of another country’s orders, and the separate culture and legal system of each country. For example, some countries’ judiciaries exercise far more control over social services than others. The clients’ problems can include being trapped in a country not of their choice in order that they can see their children, while non-nationals can face bias and language problems.”
One idea supported by MEPs is the compulsory recognition of national courts’ decisions on child custody and contact.
Hylton-Potts believes that such a proposal is encouraging, but not without difficulty: “Supposing the absent spouse does not accept the fairness of the order?”
However, he is sure that the problems can be overcome with political goodwill and the proposal could be “implemented effectively and at minimal extra cost. This is already done in civil areas such as the enforcement of foreign judgements.”
On the question of whether the different legal traditions in jurisdictions across the EU can be reconciled to make this possible, Hylton-Potts thinks that Brussels and The Hague are capable of providing the means.
“They are the two leading international players in international children disputes. Brussels has an obligation to harmonise as much family law as possible across the EU by the year 2011. Whilst regulations have had to be unanimous, Brussels does have the power to compel states to respond to the proposed law reform. It has significantly strengthened the Hague Convention by Brussels II.
“The Hague is the permanent bureau of international law attempting worldwide to bring countries together in conventions. It has no specific timetable and works consensually with diverse countries, culture and traditions. The continued work of the Hague Convention in harmonising the various jurisdictions could provide another way of increasing legal certainty for international couples in dispute over their children.”
Regulation (EC) No 1347/2000
Hague Convention 1996