News and Events

Professor Freeman’s 2016 Conference Papers

Professor Freeman has continued to receive numerous invitations to present papers at domestic and international meetings and conferences, particularly on her research findings concerning the long-term effects of abduction which have attracted considerable interest, both from the international family law community, and those in associated disciplines. Her most recent conference papers were delivered at:

The International Academy of Family Lawyers’ (IAFL) Annual Meeting and Pre-Conference Symposium, New Delhi, India, 13–18 September 2016;

The International Family Law Conference 2016, The Future of Family Justice – International and Multi-Disciplinary Pathways, Supreme Court Auditorium, Singapore, 29–30 September 2016

The National Conference for Swiss judges dealing with child abduction cases, Bern. 3 November 2016 by invitation of the Swiss Central Authority on the 1980 and 1996 Hague Conventions.


2017 Conferences

South Africa March 2017

Professor Freeman will be speaking at The 20th Annual Family Law Conference of Miller Du Toit Cloete and The University of Western Cape, “20 Years on Developments in Family Law” in Cape Town, South Africa in March 2017. Her paper at this important international event will be on the topic of: “Children: Who would have them?” and will focus on some of the areas which have formed the subject of the ICFLPP’s recent interventions in the higher courts of the United Kingdom (for further information about these interventions, see below).

World Congress on Family Law at Dublin, June 2017

She will also deliver a paper at The World Congress on Family Law and Children’s Rights in Dublin, Ireland in June 2017 on “Moving on after parental relationship breakdown – what about the children?”, and will be presenting a pre-conference institute at the Association of Family and Conciliation Courts’ (Australian Chapter) conference in Melbourne, Australia in August 2017 with leading child psychologist, Dr. Jennifer Neoh, where they will work with counsellors, therapists and others involved in the therapeutic treatment of children who have been abducted.

Seventh Special Commission at the Hague, October 2017

Professor Freeman will attend the Seventh Special Commission on the practical operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention which will take place in The Hague in October 2017. She will represent The International Association of Child Law Researchers (IACLaR) which has been granted observer status at the Special Commission.

She has already received other invitations to give guest lectures and conference papers during 2017. Please check these pages for further information if you are expecting to meet her at other international conferences.


Other conferences in the UK and Europe in 2017

Dr Frances Burton will be attending the following conferences in the UK and Europe in 2017:

The University of Cambridge Law School’s Seminar on the impact of Brexit on English Family Law, at Trinity College, Cambridge, Monday 27 March

The Family Law Bar Association’s Annual Cumberland Lodge Weekend in Windsor Great Park, 5–7 May 2017

The International Society of Family Law’s 16th World Conference at Amsterdam, ‘Family Law and Family Realities’, 25–19 July 2017

The Society of Legal Scholars Annual Conference at Trinity College, Dublin, 5-8 September 2017


The Centre’s recent appellate interventions

1. Re C (Internal Relocation) [2015] EWCA Civ 1305

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1305.html

This case concerned the legal test to be applied in internal relocation cases, and whether a distinction existed between that and the legal test to be applied in international relocation cases in view of the different ways in which the law had historically dealt with these two situations. The Centre was given permission to intervene in the appeal, which concerned a key area of Professor Freeman’s research, and was represented pro bono by Mr. Damian Garrido QC and Dr. Rob George, both of Harcourt Chambers, instructed by Dawson Cornwell, again on a pro bono basis. The Court of Appeal, which recognised the Centre’s ‘comprehensive submissions’ at paragraph 25, held that the correct test for internal relocation cases is the same as that for international relocation cases, i.e. welfare. This has been heralded as an important decision because of its clarification of the principles to be applied in such cases. Much has been written about this case and its implications by legal and other practitioners working in this field, as well as families involved in such cases for whom clarity has been extremely welcome.

2. In the matter of J (a child) [2015] UKSC 70

https://www.supremecourt.uk/cases/docs/uksc-2015-0176-judgment.pdf

This case was the first to reach the Supreme Court on the application of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Convention) which came into force in the United Kingdom on 1 November 2012. It concerned a child who was removed from Morocco without his father’s consent. Although Morocco has acceded to the 1980 Hague Child Abduction Convention, the accession has not been accepted by the United Kingdom.

The father brought proceedings in the High Court for the summary return of the child where the case was treated as being one under the inherent jurisdiction. The court held that the child remained habitually resident in Morocco, and made an order for the child to return there.

The mother appealed to the Court of Appeal and, at this point, the focus became the 1996 Convention and, in particular, article 11. Jurisdiction under the 1996 Convention is based on habitual residence, but article 11 confers an additional jurisdiction on the State where the child is currently present to take any necessary measures of protection in all cases of urgency. The court found that a return order was capable of being a “measure of protection” within article 11, but that this was not a case of urgency as the father could have made an immediate application to the Moroccan court for a return order. Therefore, the court found that there was no jurisdiction to make a return order.

The father appealed to the Supreme Court which, in unanimously allowing the appeal, held that it is open to the English courts to exercise the article 11 jurisdiction in cases of wrongful removal under the 1996 Convention, and stated that: [i]t would be extraordinary if, in a case to which the 1980 Convention did not apply, the question of whether to order the summary return of an abducted child were not a case of “urgency” even if it was ultimately determined that it was not “necessary” to order the return of the child (paragraph 38).

The Centre, which was represented pro bono by Mr. Richard Harrison QC (1 KBW) and Dr. Rob George (Harcourt Chambers), instructed by Bindmans LLP, also on a pro bono basis, raised concerns about the absence of interim contact. Professor Freeman’s research on this issue was referred to at paragraph 43 of the Supreme Court’s judgment.

3. In the matter of B (A Child) (Habitual Residence) (Inherent Jurisdiction) [2016] UKSC 4

https://www.supremecourt.uk/cases/docs/uksc-2015-0214-judgment.pdf

This case concerned a 7-year-old British National girl whose biological mother was a British citizen of Pakistani origin. The child was born as a result of IVF provided to the biological mother and her same-sex partner using donor sperm. The mother’s partner, who undertook most of the child care, did not have parental responsibility for the child. The relationship between the mother and her partner broke down after which the mother’s partner continued to see the child but the separation was acrimonious and contact was progressively reduced by the mother who, sometime later, took the child to live permanently in Pakistan without notification to her previous partner who then began proceedings for shared residence or contact with the child. Such relief was dependent on the child being habitually resident in the jurisdiction. On discovering that the child had been removed, she also applied for wardship and return of the child to the jurisdiction. The first instance judge held that the child had lost her habitual residence in England when she left for Pakistan and, therefore, relief was not available under the Children Act 1989, and that the inherent jurisdiction should only be exercised if the circumstances were dire and exceptional, and this case did not fall within those categories.

The Court of Appeal dismissed the appellant’s appeal. The Centre was given permission to intervene in the further appeal to the Supreme Court in which it was represented pro bono by Mr. Henry Setright QC, Mr. Hassan Khan and Ms. Dorothea Gartland (all of 4 Paper Buildings), and Ms. Katy Chokowry (of 1 KBW) instructed by Dawson Cornwell, again on a pro bono basis. The appeal succeeded under the 1989 Act on the basis that the child remained habitually resident in England as she had not achieved the requisite degree of disengagement from her English environment. Accordingly, the court held that the appellant’s application under the 1989 Act could and should proceed to substantive determination by the High Court. It was therefore unnecessary for the court to decide whether the inherent jurisdiction could be exercised.

4. Re R (Final) [2016] EWCA Civ 1016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/1016.html

This was a case concerning the unilateral removal by the mother of a child from his home in one part of England and Wales to another part of the country and raised issues about whether this amounts to an internal abduction (rather than relocation), and whether there should be a general principle of summary return in these circumstances to the place of former residence in line with the principles of international child abduction. The case is said to be ‘an interesting read for practitioners’, see for example http://www.familylawweek.co.uk/site.aspx?i=ed168323 Reported concerns about practitioners’ lack of clarity in this area in terms of advice offered to clients involved in these issues was one of the reasons that the ICFLPP sought permission to intervene in the Court of Appeal hearing. The court held that there was no general principle in favour of summary return, and such cases were to be decided according to the welfare principle and checklist in S1 Children Act 1989.

A lively post-judgment discussion took place in the practitioners’ peer-to-peer seminar held by Kingsley Napley (pro bono instructing solicitors on behalf of the Centre in this case) on 30th November 2016 where Professor Freeman talked about her abduction research, which included cases which were not international in nature, and counsel which represented the ICFLPP pro bono in the Court of Appeal, Mr. David Williams QC and Ms. Jacqueline Renton (both of 4 Paper Buildings) spoke about the judgment and its implications.

5. Re N (Adoption: Article 15 Transfer) [2016] UKSC 15

https://www.supremecourt.uk/cases/docs/uksc-2016-0013-judgment.pdf

This was a case relating to care proceedings and the planned non-consensual adoption of two foreign national children, and whether England and Wales, or Hungary, should have jurisdiction about the welfare of these two children who were Hungarian nationals but who had lived in England throughout their lives. The Court of Appeal had concluded that the court in England and Wales has jurisdiction to make a non-consensual adoption order for a foreign national child – see N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 . Council Regulation (EC) No. 2201/2203 (Brussels 11a) does not apply to placement and adoption proceedings, but it does apply to care proceedings. Jurisdiction under Brussels 11a is determined by habitual residence (article 8). Article 15, however, allows the transfer of proceedings to a court in another Member State with which the child has a particular connection if it is better placed to hear the case and this would be in the best interests of the child.

The mother applied successfully to the High Court (supported by the father, and the Hungarian Central Authority) under Article 15 to transfer the care proceedings to Hungary. The children’s guardian appealed this judgment unsuccessfully to the Court of Appeal, and then appealed again to the Supreme Court where the issues were about the proper approach to the best interests of the children in an Article 15 application. The court considered that a number of factors will be relevant both to the question of whether a court is ‘better placed’ to hear the proceedings and of whether transfer is in the ‘best interests’ of the child, but that these are separate questions and must be addressed separately (paragraph 57). The answer to the second does not inexorably follow from the first. There is no reason to exclude the short or longer term impact of a transfer on the children’s welfare in determining whether a transfer would be in the children’s best interests.

The Supreme Court held that the first instance judge had been wrong on the facts of the case to conclude that the Hungarian authorities were better placed to hear the case having left out of account the preclusion of one possible outcome which might be in the best interests of the children concerned (see paragraph 45) whereas retaining jurisdiction would allow all the possible outcomes to be considered. The court set aside the request for a transfer of proceedings and returned the case to the High Court. The Centre was represented pro bono in this case by Mr. David Williams QC and Ms. Jacqueline Renton (both of 4 Paper Buildings) instructed by Kingsley Napley, again acting pro bono.


Other Activities

2016

Professor Freeman was delighted to be awarded the Tim Salius President’s Award by The Association of Family and Conciliation Courts (AFCC) at their 53rd Annual Conference, “Modern Families: New Challenges, New Solutions” in Seattle in June, 2016. This award, which Professor Freeman was awarded jointly with, Associate Professor Nicola Taylor of The University of Otago, New Zealand, is presented annually to an AFCC member who has provided exemplary service to the Association, and was awarded on this occasion for the empirical research undertaken by the two recipients in the fields of child abduction and relocation.

The Centre’s extremely successful 2016 trienniel conference “Culture, Dispute Resolution and the Modernised Family” which was held in association with King’s College, London, from 6-8 July was recorded on the websites of many international academic institutions and legal practitioners. For a United Kingdom practitioner’s perspective on the conference by Tom Beak of Kingsley Napley solicitors, see the following link to their website:

https://www.kingsleynapley.co.uk/comment/blogs/family-law-blog/global-and-modern-families-not-bound-by-borders-themes-from-the-culture-dispute-resolution-and-the-modernised-family-conference

And for an example of the conference’s presence on Twitter, see:

https://twitter.com/29bedfordrow/status/750964515471134724

2017

The Centre, in association with Westminster Law School, is delighted to be hosting a lecture on the evening of 12 June 2017 where The Hon. Diana Bryant AO, Chief Justice of the Family Court of Australia, will address the audience of judges, academics, and practitioners. Her paper title is: “The Abduction Convention in a post-Brexit era: the law will survive the changes to the political landscape”.

The lecture, which is free of charge, will be followed by a reception. It is anticipated that this will be an extremely popular event. Anyone wishing to attend the lecture who may not be on the Centre’s mailing list is advised to contact Professor Freeman as soon as possible at m.freeman@westminster.ac.uk

The lecture is part of an important abduction event organised by Professor Freeman and the Westminster Law School, in collaboration with the Hague Conference on Private International Law, to be held at the University of Westminster, London. This will include a one-day invitation-only Experts’ Meeting on Issues of Domestic/Family Violence and the 1980 Child Abduction Convention on Monday 12 June. We are being assisted in the organisation of the meeting by Associate Professor Nicola Taylor from the University of Otago, New Zealand who will act as rapporteur on the day. This is a timely meeting for key subject specialists to consider the important issues of domestic/family violence and the operation of the 1980 Hague Child Abduction Convention. The practical operation of the 1980 Hague Child Abduction Convention (and the 1996 Hague Child Protection Convention) will next be reviewed at the Meeting of the Seventh Special Commission in October 2017. The Experts’ Meeting will be followed by a two-day international child law research meeting which will be informed by the outcomes from the Experts’ Meeting which, in turn, will help shape the current and future work of the child law research group.