Marilyn Stowe Blog

Lord Justice Thorpe and the Melting Pot

I loved university: a big melting pot of different nationalities, religions, cultures and traditions. Lots of couples from very contrasting backgrounds got together. Some made it and stayed the course, but many more did not. What began with intense sexual attraction, an attraction heightened because of the couple’s differences, did not survive because the gravitational pull of culture, background, religion was ultimately too strong…

Most couples don’t give this possibility a thought, assuming that their love is strong enough to survive against all the odds. If it is not, and if there is no common bond of understanding and tolerance for the differences which were once so powerfully attractive, disaster can and frequently does ensue. I wish it didn’t, but it does.

Now that international travel has become “easier”, there are increasing numbers of these couples. There is much tragedy involved in transnational cases, especially if people find it harder to get divorced, become entangled in alien legal systems, have difficulty leaving a country at all or struggle to obtain a fair divorce settlement. Worst of all are the cases in which children are abducted from one country to another, so that their parents never see them again.

Home has a powerful pull. Even if the years have flown by, some parents discover a desperate need to return to where they belong – and decide that nothing else counts. They are not truly English or French, although that is where they may have been living. They may really be Japanese or Saudi Arabian and they have come to finally understand in their hearts, they have their own nationality, their own cultures, their own religion and their own lifestyle. And that is what they want for their own children. If it means cutting off the other parent who has no such ties, or understanding of their deep-felt beliefs, so be it. Their children are more important. If they know a child can safely be removed to their home country with no repercussions then that is what they do. That happy-go-lucky melting pot becomes a distant memory.

Over the years this blog has covered, in detail, what can happen and what to do when transnational marriages break down.  More recently one of my fellow solicitors at Stowe Family Law, Jennifer Hollyer, contributed two posts about international child abduction and a third dealing with the possibility of the child’s return if the parent who stays behind has a change of heart. She has also prepared a short practical note as to current procedure in relation to child abduction, which you can read at the bottom of this post.

This week, with perfect timing, the Office of the Head of International Family Justice for England and Wales published its annual report. The Office of the Head of International Family Justice is effectively a “helpdesk” for international family law in this country, in particular handling requests to establish judicial contact between an English court and foreign court in a given case. This means that valuable work is being done, as quickly as possible behind the scenes. The aim: to speed up the unwieldy judicial and administrative processes that cause even more heartbreak when, say, an agonised parent is in one country and the child is in another.

Purely on an objective level, the latest report makes for fascinating reading. All credit is due to the Office’s head Lord Justice Thorpe, and his lawyer Victoria Miller. Press reports have tended to concentrate on the increase in the number of international child abduction cases, as detailed within the report.

For me, however, what stands out is the fantastic work these two people have done. Between them, Lord Justice Thorpe and Victoria Miller are ensuring that, in law at least, the world continues to shrink and become a smaller place. They do it in the way British people do best: quietly, with no fuss, using effective diplomacy and (their word) “liaison”.

One frequent problem is how to ensure continued contact between the child and the parent left behind, even in cases where a child is legally permitted to be removed from the jurisdiction. Promises may be made but, once on the other side of the world, are easily broken. (It is worth noting that the 1996 Hague Convention, which will finally come into force on 1 August 2012, is designed to speed up the contact process for transnational parents, as it will provide for automatically enforcing contact orders made in different countries.)

Other issues covered by the Office include the enforcement of foreign maintenance orders and discussion as to uniform policy approaches by different countries to the return and relocation of children, and also in relation to domestic violence. International mediation is firmly on the agenda: the creation of a worldwide Association of International Family Judges, at the instigation of Lord Justice Thorpe, also seems to be bearing fruit.

It is clear that at the highest levels of the judiciary across the world, much work is being done behind the scenes for the benefit of many transnational families, speeding up responses, cutting delays and assisting implementation of transnational court orders. The credit for this is due to the tireless work of this one judge and his lawyer. Let’s also not forget that Lord Justice Thorpe does this work in addition to his day job at the Court of Appeal and his involvement with the highly successful Family Justice Council, established in 2004, for which he has been a prime mover. It was only recently at the Staffordshire Family Law Conference that Lord Wilson paid tribute to the work of Lord Justice Thorpe in shaping family law, putting him in the same company as some of the greatest judges of our age: Lords Bingham and Devlin.

The Office has established relationships with judges around the world, even in countries such as Pakistan and Japan, which are not signatories to the Hague Convention and where there had been little judicial cooperation before. Between them the pair have attended 30 events worldwide last year in their respective capacities. The encouraging results are there to see.

But overall, it’s my view that some of these disasters would have been preventable if only the couple had taken their blinkers off sooner.

My advice?

If you are involved with someone from an entirely different country, with a different culture or religion, never blithely assume your relationship will survive.

Never consider having a child together unless you are absolutely certain, as objectively as possible, that your relationship is bombproof.

But if you do want to commit, then see a lawyer first, find out all the pitfalls – and at the very least enter into a cohabitation agreement or a prenup to try and protect you and your children. Above all, keep asking one question: if things were to go dramatically wrong, and there was a real possibility you might never see your child again–- could you cope?

If the answer is no, then please get out now, before it’s too late. A few tears right now are preferable to a lifetime of heartache.

What to do when a child is abducted from this country, by Jennifer Hollyer