HCCH - The Judges' Newsletter on International Child Protection - Vol. XXIII - Winter 2018-Spring 2019

Special focus The 20th Anniversary of the International Hague Network of Judges (IHNJ)The Judges' Newsletter2on International Child Protection 3 Foreword The 20th Anniversary of the International Hague Network of Judges (IHNJ) The Permanent Bureau is pleased to publish Volume XXIII of The Judges’ Newsletter with a Special Focus on the Third Global Meeting of the International Hague Network of Judges (IHNJ) on the occasion of which the 20th Anniversary of the IHNJ was celebrated. From 22 to 25 June 1998, the HCCH, with the financial assistance of the European Union Grotius Programme, organised at “De Ruwenberg”in the Netherlands, a Seminar for Judges on the International Protection of Children. The reactions to the Seminar were very positive. The Seminar not only provided an opportunity for judges to reflect on and discuss the current developments in international child protection, it also provided a unique opportunity for the participants to bridge some of the differences in legal cultures and to promote the mutual understanding and confidence between judges which is necessary for the effective operation of any international instrument. The following Conclusions and Recommendations were reached at the Seminar during the discussion on the subject “Towards International Judicial Co-operation”: “1. The recommendation was made that, following the example of Australia, judges attending the seminar should raise with the relevant authorities in their jurisdictions (e.g., court presidents or other officials, as appropriate within the different legal cultures) the potential usefulness of designating one or more members of the judiciary to act as a channel of communication and liaison with their national Central Authorities, with other judges within their own jurisdictions and with judges in other states, in respect, at least initially, of issues relevant to the operation of the Hague Convention of 25 October 1980on

the Civil Aspects of International Child Abduction.

2. In accordance with the objectives of the Grotius programme of the European Union, a number of judges outlined their plans for passing on the information and experience gained during the seminar to judicial colleagues in their several jurisdictions.

3. As short newsletter would be circulated on a regular basis (perhaps twice yearly) by the Permanent Bureau of the Hague Conference on Private International Law to judges attending the Seminar, with a view to the exchange of information concerning judicial co-operation in matters of international child protection. The information would include any changes in personal contact details, notes on developments concerning relevant international instruments (e.g., new ratifications and accessions), reference to significant national developments (e.g., case law, procedural or organisational changes, judicial conferences / seminars, etc.), and examples of successful practice in international judicial co-operation. The network would be made available to other interested judges.The Judges' Newsletter4

4. There was broad support for the view that efforts should be made to ensure greater judicial participation in the work of the Hague Conference on Private International Law, both in the development of new international in struments and in the periodic reviews of their practical operation.

5. There was agreement that the seminar had been of practical value in promoting mutual understanding and in forwarding the objective of more effective international judicial co-operation in matters of international child protection. It was recommended that further seminars of this kind be organised periodically (every three or four years).” In attendance at the 1998 “De Ruwenberg” Seminar were the four founding members of the IHNJ: Justices James

Garbolino (United States of America), Michael J. Hartmann (China, Hong Kong, SAR), George A. Serghides (Cyprus) and

Mathew Thorpe (United Kingdom). Anno 2019, the IHNJ includes more than 130 judges from more than 80 States representing all regions of the world. Since the 1998 “De Ruwenberg” Seminar, important tools have been put in place in support of the IHNJ: The Judges’ Newsletter saw the light of day in the spring of 1999; on 9 May 2000, the International Child Abduction Database (INCADAT) was launched; and, finally, in June 2011, at the Sixth Meeting of the Special Commission on the Practical Operation of the 1980 Child Abduction and the 1996 Child Protection Conventions the “Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards for Direct Judicial Communications in specific cases, within the context of the International Hague Network of Judges” were endorsed. In the near future, as announced later in this Volume, a Secure Platform dedicated to members of the IHNJ to foster dialogue and communication among members of the Network will be launched on the HCCH website. Twenty years after the 1998 “De Ruwenberg”Seminar, this Volume of The Judges’ Newsletter also marks the Third Global Meeting of the IHNJ which took place in Miami, Florida, United States of America, from 24 to 26 October 2018 and features contributions from judges and other experts who intervened at the meeting on subjects of interest to judges specialised in international child protection such as: judicial co-operation (Judge Martina Erb-Klünemann (Germany) and Judge Graciela Tagle de Ferreyra (Argentina)); case management and mediation in child abduction cases (Judge Alistair MacDonald (United Kingdom, England and Wales), Judge Martina Erb-Klünemann (Germany) and Ms Melissa Kucinski (United States of America)); the voice of the child (Judge Francisco Javier Forcada Miranda (Spain) and Judge Alistair MacDonald (United Kingdom, England and Wales)); conditions to return in child abduction cases (Judge Victoria Bennett (Australia)); and the Article 13(1)(b) “Grave Risk”exception to return in child abduction cases (Judge Alistair MacDonald (United Kingdom, England and Wales)). Also reproduced in this Volume are the Conclusions and Recommendations adopted by the Third Global Meeting of the IHNJ showing the evolution of the work of the IHNJ 20 years on. Finally, we are delighted that this Volume of The Judges’ Newsletter celebrating the 20th Anniversary of the IHNJ also includes a contribution from one of its founding members: Sir Mathew Thorpe. The publication of this Volume would not have been possible without the assistance of current and former interns of the HCCH, Lindy Christine and Renáta Radócz, respectively, to which we are most grateful, as well as to members of the HCCH Family Law Team. Most importantly, this publication would not have been possible without the very generous contributions of the authors listed above. We hope you will enjoy reading this latest Volume of The Judges’ Newsletter and we look forward to receiving your comments and suggestions. The editors, . Philippe Lortie Frédéric Breger First Secretary Legal Officeron International Child Protection 5 Table of contents Special Focus The 20th Anniversary of the International Hague Network of Judges (IHNJ) 1 Judicial activism - The IHNJ & the Judges' Newsletter: a 20year evolution, Sir Mathew Thorpe 6

2 Judicial Co-operation in a "Triangle" Martina Erb-Klünemann 11 3 10years working as Member of the International Hague Network of Judge, Graciela Tagle de Ferreyra 14 4 Article 13 Exceptions - Return and Best Interests of the Child in the Jurisdiction of England and Wales, The Honourable Mr Justice MacDonald 17 5 Active Case Management and Court Based Mediation in Child Abduction, Proceedings in England and Wales, The Honourable Mr Justice MacDonald 22 6 The voice of the child from a continental - Spanish perspective, Francisco Javier Forcada Miranda 25 7 What is the Evidential Status of the Child's Voice? The Honourable Mr Justice MacDonald 28 8 Use by German courts of mediation in child abduction return proceedings, Martina Erb-Klünemann 33 9 Lessons from the United States to Make Mediation More Available to Global Families, Melissa Kucinski 36 10 Conditions to Return, The Honourable Justice Victoria Bennett AO 39 11 Conference of Hague Convention Network Judges - Celebrating the 20th anniversary of the International Hague Network of Judges (Miami, Florida, 24-26 October 2018). Conclusions and Recommendations 43 News from the Permanent Bureau 1 Change of Portfolio Responsibility 47 2 Ongoing development of a Secure Platform for the IHNJ 47The Judges' Newsletter6 Special Focus The 20th Anniversary of the International Hague Netwrok of Judges (IHNJ)

1. Judicial activism - the IHNJ & the Judges’ Newsletter: a 20 year evolution BySir Mathew Thorpe The development of international family law, initiated by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (1980 Child Abduction Convention) and progressed by a number of other European and global instruments, led to the rapid rise of litigation in the many domestic courts of transnational

jurisdiction. In the 1990’s the younger judges felt the urge to communicate directly with a judge in the other court seized, and a matching sense of frustration arose if they were prevented from doing so. This natural development was not restricted to cross border family proceedings. This was an equally prominent feature of international insolvency practice. Mr Justice Baragwanath of the New Zealand High Court drew attention to this developing trend, which he labelled “Judicial Activism”. His paper: " Who now is my Neighbour? The Cross Border Cooperation of Judges in the Globalised Society " was published in the Inner Temple Yearbook 20042005 London. I learned from him and was able to repay him with my experience in international family proceedings, which were not his sphere. This activism had I think three manifestations: direct judicial communication in specific cases in progress, participation in the evolutionary reform of law and procedure in the domestic arena and, in the available forums, engaging in debate on the present performance of the international justice system and its evolution. The forums for the Hague Family Conventions were the Meetings of the Special Commission on the practical operation of the 1980 Child Abduction and 1996 Child Protection Conventions and international conferences convened or attended by the Permanent Bureau (the Secretariat of Hague Conference on Private International Law (HCCH)) and, for European Regulations, the regular meetings of the European Judicial Network (EJN) and occasional judicial conferences convened or funded by the European Commission. Of these three manifestations by far the most significant was the promotion of direct judicial communication by the creation and development of international judicial networks, principally the International Hague Network of Judges (IHNJ) and, in so far as it operates independently, the EJN of Judges. The primacy of the IHNJ derives from

the fact that it was first born and that it has provided the model that guided the emergence of the regional EJN. In a real sense it has empowered the specialist judiciary by giving them confidence in their potential to contribute to a beneficial development of law and practice, and the motivation to strive for it. Therefore, I will principally endeavour to chronicle the creation and development of the IHNJ and in so doing to note activity in the other manifestations. It has been said that the earliest reported case recording direct judicial collaboration was the Canadian case of D v B decided on the 17 May 1996 in the Superior Court of Quebec. In our law reports direct judicial communication seems to make its first appearance in the case of Re HB (Abduction: children’s objections).1 I was in the court together with Lady Justice Butler Sloss and Sir John Vinelott. At first instance Wall J. had endeavoured to establish direct communication, an endeavour which we supported. Another strong supporter of direct judicial communication in the Family Division was Singer J. who tackled the topic head on in his Judgment in Re MJ (Abduction: international judicial collaboration).2 But these judicial pronouncements must be set in a much broader context. The 1980 Child Abduction Convention depended for its function on the creation and operation of Central Authorities, one in each State party to the Convention. This was mandated. However, the text of the Convention more or less took for granted the effective operation of judicial authority. That this was not a safe given was subsequently to be demonstrated in enumerable return applications malfunctioning in the courts of many States party to the Convention. As the mesh of countries operating the Convention steadily advanced and enlarged, it became increasingly evident that the successful operation of the Convention depended not only upon the effective work of the Central Authorities, but also upon the effective

work of the judges. It was vital for the judges to understand and correctly apply the law, a goal they were unlikely to achieve without specialist skills. Not only must the judges be specialists in the law, but they must also be past masters in its practice and procedures. No doubt these realities persuaded the HCCH to host the first residential conference for judges of the States party to the 1980 Child Abduction Convention. The conference was convened in the summer of 1998 at De Ruwenberg, the Netherlands. At that date there were some 50 States party to the Convention and approximately half sent judges to contribute. Expertly guided by the Deputy Secretary General, the much esteemed Professor William Duncan, very valuable work was done. From this gathering stems the INCADAT website and the Judges’ Newsletter, but its greatest achievement was the tentative creation of the IHNJ. I say tentative because the proposal came from me on behalf of the United Kingdom. My proposal was both tentative and speculative as I had then noon International Child Protection 7 idea how it might materialise. It has been my experience of innovation that what really counts is the launch. The proposer needs only sufficient ideas of need and purpose to achieve approval for the launch. Once the innovation is born, it will to some extent create its own evolution and develop its own future. So it was with this. The proposal was fiercely opposed by France. Thus it might have been stillborn. But I believe it survived thanks to strong support from Australia, Hong Kong (SAR, China) and New Zealand and the fact that France's opposition attracted no ally. In preparing this paper I have found gold in the Judges' Newsletters. I find in the Judges’ Newsletters a record of events which were at the time at the centre of my life but which I have long since erased. So the Judges’Newsletters

are most valuable not as purveyors of news but as a record of historic fact and have proved invaluable source material for this paper. For instance in Volume 1 published in Spring 1999 I find: "Judges are reminded of the following conclusion reached during the final session of the De Ruwenberg Seminar on the subject ' Towards International Co-operation': 'the recommendation was made that, following the example of Australia, judges attending the Seminar should raise with the relevant authorities in their jurisdictions (e.g., court presidents or other officials, as appropriate within the different cultures) the potential usefulness of designating one or more members of the judiciary to act as a channel of communication and liaison with their National Central Authorities, with other judges within their own jurisdictions and with judges in other States, in respect, at least initially, of issues relevant to the opera tion of the 1980 Convention' The Permanent Bureau would welcome news of any developments following on this recommendation." Interestingly the Judges’ Newsletter also announces another seminal development relevant to the third manifestation identified above. Having noted the first three Meetings of the Special Commission held respectively in 1989, 1993 and 1997, comes: "The Permanent Bureau has been considering how the next Special Commission should be organised, and in particular how it may best contribute to the development of improved procedures and practices surrounding the judicial process itself. It will be essential to involve the judiciary more centrally in the process." Volume 2 appeared in Autumn 2000 and reflected in its considerable expansion how much judicial activism was burgeoning. A second De Ruwenberg Conference earlier in the year had supported the creation of an international judicial network. That resolution had been repeated at the Washington Common Law Conference in September 2000.

However these recommendations remained aspirational as later the Judges’ Newsletter reported that the tally of nominated Network judges stood at only four and all from Common Law jurisdictions (Australia, Cyprus, New Zealand and UK). The 4th Meeting of the Special Commission convened in March 2001 and was the special focus of Volume 3 published in March 2001. The report included: "Judicial attendance and participation contributed greatly to the success of the Special Commission, and will add additional weight to its conclusions and recommendation." Recommendations 5.5-5.7 are fundamentally important as they elevated mere De Ruwenberg conference proposals to the HCCH work in progress, subject to endorsement by the Council on General Affairs and Policy (the governing body of HCCH) at its next meeting. Effectively they set the agenda for the following decade. The effect of Resolution 5.5 was to encourage States to identify a network Judge. Resolution 5.6 required Contracting States to actively encourage International judicial cooperation by the attendance of judges at judicial conferences, and by exchanging ideas with foreign judges and by explaining the possibilities of direct judicial communication on specific cases. Importantly this resolution also recorded the safeguards commonly accepted in Contracting States in which direct judicial communications are practiced. Resolution 5.7 committed the Permanent Bureau to continue to explore practical mechanisms for facilitating direct judicial communication. Despite these positive sign posts the Judges’ Newsletter later tallies only a modest increase in the number of designated Network judges to eight. Each Judges’Newsletter addressed a chosen topic, as well as covering current events and news. Volume 4 addressed Direct Judicial Communication, devoting some thirty pages to the topic. The advantages and the pitfalls were set out in a debate between the believers and the non believers. The

need for safeguards was acknowledged.The Judges' Newsletter8 Through these two Judges’Newsletters and the Meetings of the Special Commission in 2001 and 2002 a clear path of progress emerges: .

1. The 2001 Special Commission agrees Resolutions

5.55.7.

2. Pursuant to Resolution 5.7 in January 2002 the Permanent Bureau circulates a questionnaire directed to practical mechanisms. 16 responses result.

3. In August 2002 the Permanent Bureau circulates its preliminary report on practical mechanisms.

4. In October 2002 the Special Commission approves the preliminary report and recommends the finalisation of the report within 18 months. ; This is a critical point in the evolution. In the four years since the first De Ruwenberg Conference the initial proposal has been developed to general acceptance and the formulation of practical mechanisms. The journey has travelled beyond the point of return. There are now thirteen declared participants, including the first appearance of the USA with the informal designation of Jim Garbolino.

Significant too is the number and diversity of judicial conferences. In this period of rapid growth in judicial activism conferences were the essential evolutionary tool. We needed to discuss our aspirations and the ways and means of achieving them. In London we had launched an International Family Law Committee in 1993 and it was the medium for a bilateral conference with Germany in 1997. The Permanent Bureau had launched the multilateral model at De Ruwenberg in 1998 after which a host of multilateral conferences had followed, some initiated by judges. This early development of judicial activism within the Hague community coincided with developments in Europe. 2001 saw the arrival of the Regulation creating the EJN for Civil and Commercial Law. In the same year came the short-lived Brussels II Regulation. In 2003 this matured into

the Brussels II Revised Regulation which with its commencement in March 2005 brought Family law into the heart of the work of the EJN. In preparation for this arrival the European Commission convened a major conference for specialists in conjunction with the Italian Presidency at Lecco, which was the home town of the then Italian Justice Minister. The minute of the conference prepared by the Commission contained the following conclusion: "Judges must receive adequate training before entry into force of the new Regulation. The EJTN should be used in this context. The EJN will also play a key role in this respect. The liaison judges specialised in Law should be effectively integrated into the Network and will disseminate information about the new Regulation at a national level" To coincide with the commencement of the Regulation the Commission issued a Good Practice Guide which in Chapter X stated: "To arrange and facilitate cooperation discussions between judges should be encouraged. The experience of the informal 'liaison Judge arrangement' organised in the context of the 1980 Child Abduction Convention may prove instructive in this context." Later in guiding judges considering an Art. 15 transfer the advice becomes very direct: "If the two judges speak and/or understand a common language, they should not hesitate to contact each other directly by telephone or email. Other forms of modern technology may be useful, e.g., conference calls. If there are language problems, the judges may rely on interpreters." So at Lecco in 2004 the European Commission, faced with the problem of bedding in a major innovation with only months before commencement, saw the opportunity to appeal to the specialist judiciary to play a major role, a role that had already been tested and established on the global stage of the 1980 Child Abduction Convention. So gradually, almost inevitably, what emerged were two parallel networks, one global, one European. Obviously the

individual judge generally served both functions. It would have made little sense to have had one judge on the IHNJ and a different judge on the EJN. I return to my primary theme, the evolution of the IHNJ. As we have seen the 2002 Meeting of the Special Commission had recommended the finalisation of the report on practical mechanisms. That report, compiled by Philippe Lortie from 45 responses to a second questionnaire, was circulated as Preliminary Document No 8 in preparation for the 2006 Meeting of the Special Commission. The conclusions of the Commission in identifying future work included: : (b) to continue to explore practical mechanisms; and (f) to explore principles concerning direct judicial communication which could serve as a model for the development of good practice with the advice of experts drawn principally from the judiciary. . Volume 13 of our excellent Judges’Newsletter for the first time included not a list of individual liaison judges but a Directory of Jurisdictions signed up to direct judicial communication - 13 judges as at Autumn 2008. This expansion was largely thanks to the support of Latin American jurisdictions. The Judges’ Newsletter also announced that in Brussels on 15-16 January 2009 the HCCH and the European Community would hold a joint conference on direct judicial communication. This long promised conference was to fulfil all our expectations.on International Child Protection 9 The first meeting of experts, principally judges on the IHNJ, took place in The Hague on 3-4 July 2008. We began our task of surveying the practicalities to facilitate direct judicial communication and necessary safeguards to protect the integrity of the proceedings that had given rise to the contact. As an agenda we had the draft general principles settled by the Permanent Bureau in fulfilment of the conclusions of the 2002 and 2006 Meetings of the Special

Commission. The plan was that our enhancement of the Permanent Bureau's draft would then form an important item on the agenda of the Brussels conference in the following January. In the development of judicial activism and direct judicial communication the then forthcoming January 2009 Brussels Conference stood as an Everest above the plain of our work lives. I had mooted it and then badgered for it in frequent meetings with Olivier Tell, the senior official at the European Commission. I was hopeful that it might come to pass but never confident. When finally confirmed and announced I held very high hopes of the outcome. It seemed such a powerful partnership. The Permanent Bureau had the experience and the expertise whilst the European Commission had the funds to cover the considerable cost of such a global gathering. Never before had there been such an assembly of such committed specialist judges from all over the globe. The conference gave equal voice to proponents and opponents, or more precisely those who held misgivings and reservations as to where these innovations might lead. In the civil law world there were respected judges who believed that the role of a judge should be confined to the proper proceedings in the court room. In the common law world there were respected judges who feared that extra camera communication would or might breach the rules of natural justice. The expression of such doubts and anxiety was a necessary stage in the evolution of these innovations. The conference is very well recorded. In recognition of its significance the papers given at the conference and its conclusions were effectively published as a special edition of the Judges’ Newsletter, Volume 15 extending to 200 pages. They still make interesting reading not only for the insight as to how things then were, but also for the prophetic views as to how things would be in 2018! As to how things were, the Hague Directory had grown to record 34

jurisdictions. Many specialist judges wrote of their experience of and support for direct judicial communication. Both England and the Netherlands offered the latest annual reports from their international family justice offices. Amongst the many positive conclusions the most important for my narrative is Conclusion 16 which endorsed the general direction taken by the Experts at the Hague meeting the previous July, noted that the conference had made a significant contribution and awaited the finalisation of the Experts' report. The prophets foreseeing how things might stand in 2018 were Diana Bryant and myself. Our optimism has certainly been borne out but it is disappointing that the resources then available to the London International Office were much reduced in 2013 with an inevitable reduction in its capabilities. By way of foot note the Association of International Family Judges was launched on the second day of the conference and on the evening of the first we celebrated the tenth birthday of the IHNJ. Volume 16 was published in Spring 2010 and records that the number of jurisdictions participating in the IHNJ had grown to 37. The focus was upon the Third Malta Conference. Two other important conferences were reported, the Washington Relocation Conference in March 2010 and the first Commonwealth Conference in August 2009. Indeed the proceedings in Washington were made the subject of a special edition of the Judges’ Newsletter, Special Edition No. 1 of 2010. We on the Expert Group met again on 28 June 2010 to revise our initial text in the light of all the developments at the Brussels Conference. Our product together with comments from other sources merged in Preliminary Document 3A which the Permanent Bureau prepared for the 6th Meeting of the Special Commission, the agenda for which was so extensive that it was divided into two parts, the first held in June 2011 and the second in January 2012.

IHNJ The first part was the focus of Volume 18 of the Judges’ Newsletter published in Spring 2012. Preliminary Document 3A was extensively debated. The conclusions recorded that its formulated principles and guidance were generally supported. The Permanent Bureau was asked to finalise the text to reflect the discussion at the Commission. The second part of the 6th Special Commission is the subject of Volume 19 of the Judges’Newsletter. It reports that the meeting endorsed the support which the Emerging Guidance and General Principles on Judicial Communications had received in June 2011. Accordingly, the main Question for debate was the Swiss proposal contained in Preliminary Document No 4 for the creation of an international binding instrument on direct judicial communication. Although that did not achieve consensus there was support for the inclusion of a legal basis in any future relevant Convention. There was also agreement for: a) promotion of the use of the Emerging Guidance and General Principles. b) the continuation of the strengthening and expansion of the IHNJ. c) the maintenance of an inventory of legal bases for direct judicial communication in domestic legal systems.The Judges' Newsletter10 At this 6th Meeting of the Special Commission, it can be said that the IHNJ achieved the official and unqualified seal of approval. The publication of the Emerging Guidelines and General Principles followed in 2013. The Introduction in its final paragraph admits