Thursday, 8 May 2014

Listing Relocation Cases

For some time, colleagues at the Bar and I have been sharing concerns that under the draft guidelines for case allocation in the new Family Court, almost all international relocation cases will be listed in front of District Judges.

The draft guidelines put cases into three categories:

1. cases involving proposed moves to countries which are not signatories to the 1980 Hague Convention on child abduction -- High Court Judge

2. cases involving proposed moves to countries which are signatories to the 1980 Hague Convention -- District Judge

3. cases involving proposed moves to countries which are signatories to the 1980 Hague Convention but which are unusually complex in legal or factual terms -- District Judge or, exceptionally, Circuit Judge.

This allocation marks a dramatic change from just a few short years ago. As late as 1993, it was being said that all international relocation cases should be reserved to High Court Judges or, if necessary, senior Circuit Judges sitting in the High Court. In 2009, Lord Justice Wall in the Court of Appeal said that Circuit Judges would normally hear international relocation cases, and that District Judges should hear them only if the judge had special experience to make him or her suited to such cases. My research on relocation cases in 2012 showed then that about 20% of international relocation cases were being heard by District Judges. So finding that almost all relocation cases should now, by default, be listed in front of DJs is quite a turn around.

Why does it matter, you might ask. Put shortly, there are two concerns. One is simply that international relocation cases are actually very complex. Even a "straightforward" case involves the potential for a serious, long-lasting changes to the child's relationship with one parent (usually the father) if the relocation is allowed, and a serious restriction on the freedom of the other parent (usually the mother) if the application is refused. There are also legal complexities with making on-going contact orders which are effective after a relocation, and real care and expertise is needed to make sure that such orders are worth the paper that they're written on.

The second concern is about appeals. Child law cases heard by District Judges are, ordinarily, heard on appeal by Circuit Judges, whereas cases that start in front of Circuit Judges are heard on appeal in the Court of Appeal. The safeguard of having a potential for review by the senior judges of the Court of Appeal is very important -- to me, almost essential -- when dealing with such major decisions as international relocations.

Anyway, these concerns appear to have been making their way through the system, and a well-placed source (I want to say "a leading member of the sieve", but I'm not sure how many people would get that reference...) has told me that the matter is now being re-considered. I for one would certainly favour a system that gave these important cases a default allocation to a more senior level of tribunal, with the possibility for genuinely straightforward cases to be moved down if that seemed appropriate to the gateway judge.

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