Mental Capacity Case

N v K (No 2)

Cobb J

Summary: This case provides a useful summary of the role of international judicial liaison. It arises in the context of a private law case involving a child, but the principles of judicial liaison are equally applicable in the context of cases involving incapacitated adults. Cobb J took the opportunity to rehearse the principles that govern such liaison exercises, which we reproduce here:

"8. Many judgments and articles in international legal journals over the last fifteen years or so have identified, and paid tribute to, the value of international judicial liaison (from Re HB (Abduction) (Child's objections) [1998] 1 FLR 422 to HSE Ireland v SF (A minor) [2012] EWHC 1640 (Fam), and others). I intend to do no more than to add my own public recognition of its value, having engaged in collaboration usefully through the medium of Network Judges in Ireland (Re LM [2013] EWHC 646 (Fam)) and Spain (PB v SE Re S [2013] EWHC 647 (Fam)) in the last twelve months.

9. The principles by which international judicial communications are achieved through the Hague Network Judges, together with practical advice, are authoritatively set out in the guidance 'Direct Judicial Communications' ('DJC') published by the Hague Conference on Private International Law (2013).

10. While this is not the place to rehearse the regime in its entirety, it should be noted that it

is common practice, where direct communication is indicated, for written questions to be prepared for consideration by the judges in the two jurisdictions. This guidance is specifically to be located in §7.5(f) of the DJC: the provision 'in writing' of 'any specific questions which the judge initiating the communication would like answered,' and corresponds with the more general expectation that 'a record is to be kept of communications' §6.4 (ibid.)

11. The DJC publication illustrates the sort of matters which may be the subject of direct judicial communications; this is not an exhaustive list:-

a. scheduling the case in the foreign jurisdiction:

i. to make interim orders, e.g., support, measure of protection;

ii. to ensure the availability of expedited hearings;

b. establishing whether protective measures are available for the child or other parent in the State to which the child would be returned and, in an appropriate case, ensuring the available protective measures are in place in that State before a return is ordered;

c. ascertaining whether the foreign court can accept and enforce undertakings offered by the parties in the initiating jurisdiction;

d. ascertaining whether the foreign court can issue a mirror order (i.e., same order in both jurisdictions);

e. confirming whether orders were made by the foreign court;

f. verifying whether findings about domestic violence were made by the foreign court;

g. verifying whether a transfer of jurisdiction is appropriate.

12. For a wider review of the evolution of this important mechanism for achieving international communication and collaboration, and a digest of relevant case-law, reference should further and usefully be made to the article by Edward Bennett, formerly Legal Secretary to the Head of International Family Justice, at [2013] (July) Family Law 845. Mr. Bennett gives practical advice to practitioners, consistent with the DJC Guidance referred to above, which I respectfully endorse. Relevant to the problems which arose in this case, I draw attention to a particular passage from that article (at p.850):

'All requests [for direct judicial communication] should be accompanied by: (a) a (preferably agreed) concise case summary; and (b) a set of questions to be put to the network judge which: (i) ask for information of a practical and emphatically non-legal nature; and (ii) are in no way phrased in anything other than a neutral, non-tactical way. Direct judicial communication is not intended as a tool for practitioners to: (a) receive legal advice by the back door; (b) avoid having to seek expert evidence as to foreign law or procedure in circumstances where it is appropriate; or (c) use as a substitute for their own legal research into English family law and practice. Likewise it would be a grave abuse of process to attempt to use network judges as a means of making submissions to a foreign court, thus short-circuiting the relevant procedural rules for such matters in the jurisdiction concerned. This is not to say that sealed orders and judgments cannot be transmitted to judges in other jurisdictions quickly via network judges in certain circumstances, which is relatively common'.

On the facts of the case before him Cobb J found that the representatives for the father in the proceedings had embarked upon an entirely different – and inappropriate – exercise, thus:

"21. The questions from the parties' solicitors were therefore received by the Office for IFJ on 30 October. I do not intend to set out the detailed narrative of the father's questions in this judgment, but can summarise them thus:

a. The father first invited the judges to consider and determine the extent to which the mother could maintain that she was not bound by a judgment entered in the American court (Panama City, Florida) in August 2007;

b. The second question referred to the father's agreement in 2009 (see §12 [2013] EWHC 2774 (Fam)) to extend the period of the mother's temporary relocation in the UK. After an exposition of the background history, the question posed was: 'To what extent, if any, should the fact that the extension was granted voluntarily detract from the validity of the final judgment in requiring [M]'s return to Florida by 1 September 2009?'

c. Thirdly, the father asked whether the finding of habitual residence in England is 'incompatible with the recognition and enforcement of' the Florida order?

d. The fourth question concerned the question of whether the English court would 'uphold' the 'visitation provisions' of the original Florida order;

e. Finally, the father set out a detailed proposed time-table for future holiday staying contact over the ten-month period to September 2014, involving five separate visits to the USA during M's school holidays and half-terms. Specific dates were proposed. He invited the judges to 'discuss' these arrangements in the 'anticipated judicial liaison'.

22. At least three of these five questions (§21 (a), (b) and (e)) were completely unsuited to judicial liaison, as contemplated by the International Hague Network; the first question was self-evidently not a matter on which an English Judge could or should contribute or 'liaise' effectively or at all. International judicial communication is not intended to be a substitute for obtaining legal advice, nor can it be used as a means to avoid having to seek expert evidence as to foreign law, or procedure. It cannot be deployed as a mechanism for judges to settle welfare disputes (§21(e) above), nor can it be used 'as a means of making submissions to a foreign court' (Bennett: p.850)."

Comment: As noted at the outset, judicial liaison can be useful – indeed – essential in terms of ensuring that cross-border protection for incapacitated adults can be coordinated effectively between both judicial and administrative authorities. A good example is that of Re MN, where Hedley J gave a decision that was strictly – academic so as to be able to assist the California courts as to what the English courts would and would not do, and what it would do of its own volition as opposed to only at the invitation of the California courts. This case serves as a helpful reminder of the core principles that apply together with the limits of liaison.