News
David Hodson qualifies as family arbitrator in new family law arbitration scheme launched today
iFLG is pleased to announce that David Hodson has qualified as a family arbitrator after the vigourous training course in the new Institute of Family Law Arbitrators (IFLA) scheme. Although he qualified as an arbitrator in 2002, this is a specific scheme aimed at family law work. The Scheme is being launched today under the auspices of the Chartered Institute of Arbitrators and other organisations.
It means that iFLG is able to offer dispute resolution in traditional mediation, directive mediation, child abduction mediation, collaborative law, early neutral evaluation and joint opinions and now in arbitration, alongside our normal representative work.
David Hodson has been one of the founders and creators of the family law arbitration scheme in this country, being involved since 2001 and working closely with the government and the CIArb and more recently with other organisations
Arbitration offers considerable benefits over court based resolution. The parties can choose their arbitrator, invariably based on the arbitrator’s experience and specialisation for the area of the dispute, and the arbitrator continues throughout the dispute, whereas at court there is no choice of the judge and often different judges will deal with the case at different stages.
Arbitration offers much flexibility. The parties and the arbitrator can decide what sort of disclosure process and documents are needed, what timetable is preferred including dealing with matters very quickly if jointly needed, having arbitration hearings out of normal office hours if preferred and other flexibility to meet the circumstances of the parties and the case. Arbitration is invariably quicker than court based resolution. Please see our note for more details
iFLG is also offering arbitration in international cases, our area of particular expertise, which may involve arbitrations abroad if required and the consideration of foreign law. Because David Hodson is dual qualified, England and Australia, he is able to undertake arbitrations jointly involving these countries, along with arbitrations with other countries.
Please contact us for more details.
David Hodson presents keynote speech at the Irish Family Lawyers Association conference
On 12 November, 2011 the Irish Family Lawyers Association, being the association solicitors and barristers in the Republic of Ireland, held their annual conference. David Hodson was invited to be the keynote speaker, and in celebration of the 10th birthday of Brussels II, dealt with the impact of this law and of other EU family law over the past decade.
The conference was held in Belfast, Northern Ireland, because of the launch on 11th of November 2011 at the Royal Courts of Justice, Belfast, of the historic inauguration of a cross Ireland family law initiative, between family law practitioners in the Republic and Northern Ireland. It will mean much closer working on both cases and law initiatives, including cross-border child abduction, enforcement of maintenance and property orders and other aspects affecting families with connections both north and south of the border.
Supreme Court decision on cohabitation law
The Supreme Court has today handed down a very important decision, Jones v Kernot, about rights and entitlements of those who cohabit when a property is held on the title deeds in a way which does not reflect the true and fair ownership. It has given guidance on finding evidence of a common intention of the shares in which a family home of a cohabiting couple can be decided. Michael Allum, with David Hodson, of iFLG has written a briefing paper, as attached
Download the file 
jones_kernott.pdf ()
David Hodson is Family Law Commentator of the Year
David Hodson receives the prestigious inaugural Jordans award for Family Law Commentator of the Year, at the awards ceremony held at the Hilton Hotel, Park Lane, London. This was for his outstanding contribution to commentary on family law developments nationally and internationally. Unlike most of the other awards, it was specifically voted by family lawyers.
iFLG is delighted at this recognition for David who has over many years tirelessly written and spoken on family law issues, for the benefit of family lawyers here and abroad, for the public and for policymakers.
The award was presented by Liz Walsh, editor of Jordans Family Law magazine and International Family Law magazine.
It was also announced that the second edition of his international family law book will be published in January 2012, titled “The International Family Law Practice”. Further details and an order form are available from iFLG.
David commented on the award in his weekly opinion piece
iFLG hold training seminar on skills in international children mediation
The International Family Law Group is holding a seminar on 29 June, 2011 at 6 PM on the skills needed for mediation in international children cases, primarily child abduction. These are a very different form of mediation from national children disputes. It is fundamental to work in parallel with the court imposed timetable. A specialist awareness of the possible outcomes must be combined with very particular mediation skills. Sometimes the parents may be in different countries, which presents additional difficulties for the mediation process.
Experience and research has shown that mediation is definitely appropriate and successful in these often hard to settle cases. Denise Carter OBE, head of iFLG Mediation Services and a globally recognised international children mediator, will be speaking about her considerable experience as a mediator in child abduction cases. Sir Peter Singer will be chairing. Professor Marilyn Freeman will be explaining the most recent research across the world on the issue. David Hodson and Anita Guha will be looking at the wider dimension of referral to mediation under the new court rules and the new EU Mediation Directive.
The seminar is being kindly hosted by 7 Bedford Row Chambers. It will benefit all mediators, family lawyers and judges and those working with international families. The flyer with details is attached. For more information and to attend, please contact Maria Sands on .(JavaScript must be enabled to view this email address)
Download the file IntChildrenADRFlyer.pdf ()
iFLG speakers at 12 Australian Annual Family Lawyers conference, Singapore
David Hodson and Ann Thomas of iFLG have been invited to be speakers at the 12th Australian family lawyers conference taking place in Singapore 10 – 15th June 2011. It is attended by many specialist family lawyers from Australia, New Zealand, Hong Kong and other countries. David Hodson is speaking on mediation and alternative dispute resolution in international family dispute cases. Ann Thomas is taking part in a presentation looking at various remedies for self help in obtaining disclosure in various countries. The opening address is by the Chief District Judge of Singapore. More details can be found at http://www.aflc.com.au
Shared parenting
At a meeting this evening in the Houses of Parliament organised by the All Party Parliamentary Group on family law reform, there was a discussion of shared parenthood and the significant involvement of both parents in the lives of children after parental separation. David Hodson was one of the four speakers. He covered the development of a shared residence orders. His speech is attached
Download the file SRO1.pdf ()
Plugging the hole of nondisclosure
avid Hodson writes a weekly opinion piece on international aspects for Jordans electronic newsletter circulated to thousands of family lawyers in England and abroad. This week he has drawn attention to the provision in the Dutch Civil Code which would give a significant disincentive to anyone attempting to hide assets. The opinion piece is attached
Download the file dutchnondisclosure.pdf ()
Practical aspects of marital agreements with an international element
A symposium on international aspects of marital agreements was held this evening, organised by the London Metropolitan University’s Centre for Family Law and Practice in conjunction with 7 Bedford Row. The chair was Baroness Hale. Speakers and members of the panel included Mr Justice Mostyn, Jacky Julyan (also of the South African bar) and Maria Scotland of 7BR Chambers and representatives of the US firm, Miles and Stockbridge, along with David Hodson. He gave a paper on the practical aspects of marital agreements with an international dimension and spoke on how solicitors should deal with these cases and especially the very real problems when recommending a party not to sign. His paper is attached
Download the file maritalagreeinternational.pdf ()
UK Internal child relocation
David Hodson writes a weekly opinion piece on international aspects for Jordans electronic newsletter circulated to thousands of family lawyers in England and abroad. This week he looks at an internal UK relocation case, albeit between England and the far north of Scotland, and contrasts the different law on internal relocation and external relocation with the irony that it is often closer and quicker to travel to mainland Europe than the further extremities of the United Kingdom. The opinion piece is attached
Download the file internalrelocation.pdf ()
EU Enhanced Co-operation Regulation on divorce
On Monday, 20 December, 2010, as family lawyers across Europe were looking forward to the last working week of the year, the EU Council passed a Regulation (1259/2010) about which country’s laws should be applied on divorce and legal separation, the so-called applicable law regimes. The United Kingdom is specifically not a party. It is the historic first “enhanced cooperation” in the European Union. The EU allowed 14 member states to go it alone, without needing and having the support of all EU member states. It creates harmonised rules for determining on the divorce of an international couple which country’s laws would be applied, rather than necessarily the local law of the country where the divorce occurs. It is a very important legislative measure for international families in those 14 countries, for those in the remaining EU countries where international families have a connection with the 14 countries and for all worldwide family lawyers having any EU connections in their cases
David Hodson has written a summary of the content of the Regulation drawing attention to crucial elements for practitioners, clients and future policymakers
Download the file enhancedcoop.pdf ()
Family law in the clouds
David Hodson writes a weekly opinion piece on international aspects for Jordans electronic newsletter circulated to thousands of family lawyers in England and abroad. This week he reports and reflects on a fascinating talk given by Andrew Davies, a leading Australian family lawyer based in Perth, on the subject of cloud technology and the impact on family law cases and family law practice. The opinion piece is attached
Download the file clouds1.pdf ()
Warning of collaborative law scam
David Hodson writes a weekly opinion piece on international aspects for Jordans electronic newsletter circulated to thousands of family lawyers in England and abroad. This week he draws the attention of worldwide family law practitioners to a recent outbreak of a scam in the guise of a request to family lawyers to give assistance to a potential client in the context of concluded collaborative law agreement. The opinion piece is attached.
Download the file collabscams.pdf ()
Marital agreements for international families after Radmacher
The Supreme Court decision in Radmacher on 20 October 2010 was always going to have significant impact in the international family community. And so it has proven. It makes marital agreements and pre-marital agreements as close to being binding as possible – provided they are fair!
The decision brings England and Wales much closer to the law and practice of many other countries. It gives much greater confidence to foreign lawyers and their clients that a foreign marital (including premarital) agreement, especially after independent advice, will be upheld on an English divorce. England will look more at foreign law to determine the effect the parties intended when entering into a foreign agreement. England will still only apply local law, English law, not applicable law, but this is what occurs in many other countries with which England is close, even if not the preference of the Euro bureaucrats. Of course it does not make marital agreements binding in law – only Parliament can do so and probably will in the next four years following Law Commission proposals expected early 2011. But this is as close to binding as judge made law could provide. This decision is good for the international family lawyers community and good for international families
This article by David Hodson is for international families and non English lawyers either contemplating a marital agreement with a potential English element or facing a possible English divorce and considering how the English courts will now look at a foreign marital agreement. It has been published on the Jordans online site
Download the file Radmacher.pdf ()
Part III and the second bite of the Lychee
David Hodson looks at the practice of allowing a second opportunity after a foreign divorce based on the Hong Kong experience. This article was originally published on Jordans online website
Download the file lychee.pdf ()
This Form (A) is not for serving
David Hodson looks at the importance of ensuring the Form A can also be personally served along with the Divorce petition in an international case and the practice to be followed. This article was originally published on Jordans online website
Download the file formA.pdf ()
Family law in the land of the rising sun and the abducted daughter
David Hodson looks at child abduction and other international parenting issues with Japan. This article was originally published on Jordans online website
Download the file japan.pdf ()
Irish cohabitation reforms
David Hodson looks at the recent reforms of cohabitation law in the Republic of Ireland. This article was originally published on Jordans online website
Download the file irish_cohabitation_reforms.pdf ()
Married, Single or Other? Recognition of foreign marriages
Hannah Budd looks at recognition of foreign marriages in the light of the Court of Appeal decision in Gulubovich. This article was originally published on Jordans online website
Download the file recognition_foreign_marriages.pdf ()
The London Conclusions and Resolutions: Report on outcome from major international family law confer
David Hodson reports on the major Conclusions and Recommendations of the conference held between 30th June and 2nd July 2010 when over 150 leading family law specialists from 18 jurisdictions met in London at the Centre for Family Law and Practice, London Metropolitan University, to discuss the three conference themes of International Child Abduction, Relocation and Forced Marriage. It was one of the most important conferences of recent years concerning international families and especially children.
Download the file London_conclusions_resolutions.pdf ()
Seek help before you help yourself
English family law has previously allowed use in evidence of confidential private documents obtained by one spouse concerning the affairs of the other where it will assist in finding out the full circumstances and wealth of the parties especially where one spouse may be attempting to hide assets or evade disclosure. In a groundbreaking decision on 29th July 2010 the Court of Appeal has now mostly forbidden use of self-help documents and instead imposed stringent duties on those spouses who obtain such documents, and the lawyers who receive them. It will undoubtedly now make it harder to show disclosure where one party seeks to hide assets, and more expensive in costs to ascertain the full facts. It has been called a Cheat’s Charter. See iFLG commentary attached
Download the file iFLG_Imerman_commentary.pdf ()
Search Orders post Imerman
The Court of Appeal in Imerman said family lawyers should more often obtain search orders instead of relying on self help measures. But these are expensive and draconian steps. IN an article published in Family Law Journal in October 2010, David Hodson explains the background in law and good practice in obtaining and executing these orders including use of supervisory lawyers
Download the file search_orders.pdf ()
Relocation Dispute Resolution hearings (RDRs)
Ann Thomas explores a possible new way to resolve relocation as well other international children disputes and differences, by giving the court the power at an early stage to indicate the likely outcome and so save time and costs. The article was published in Jordan’s Family Law magazine
Download the file relocation_dispute_resolution.pdf ()
Judicial encouragement to pre-marriage and other marital agreements
The Court of Appeal has handed down its judgement today in the important case of Radmacher v Granatino. Until there can be Parliamentary intervention, perhaps as a consequence of the forthcoming Law Commission investigation or other recommendations, this case will materially influence judges and practitioners in the weight to be given to marital agreements. The three judgments look not just to the narrow issues in the particular case but at the future for this area of developing law and social policy.
Whilst like most Court of Appeal ancillary relief decisions it relates to big money and relatively narrow facts, unlikely often to be repeated, in this instance the Court of Appeal has handed down a judgement to provide wider guidance. Moreover whilst the case itself concerned a pre-marriage agreement in the international dimension, the remarks by the judges were equally directed to purely national couples and agreements entered into in this country.
At paragraph 53 of the judgment Lord Justice Thorpe made the following statement: “in future cases broadly in line with the present case on the facts, the judge should give due weight to the marital property regime into which the parties freely entered. This is not to apply foreign law, nor is it to give effect to a contract foreign to English tradition. It is, in my judgment, a legitimate exercise of the very wide discretion that is conferred on the judges to achieve fairness between the parties to the ancillary relief proceedings.”
By reference to marital property regime in the international context there should also be construed the marital agreement regime in the national context i.e. what the parties agreed before and during the marriage in substitution for what might be the outcome of an adjudicated settlement at court on divorce.
This takes the law further towards support for marital agreements than even the observations in Crossley (2007) EWCA Civ 1491 in which the agreement was referred to as of “magnetic” and “paramount importance”.
David Hodson has written a published article explaining the background to the case, the present position in law and good practice guidance for practitioners
Myerson – don’t go there? Setting aside divorce settlements because of financial changes
Anyone reading the Court of Appeal judgment and media reports on the Brian and Ingrid Myerson case of 11th March 2009 could be forgiven for thinking that if he could not succeed in setting aside his divorce settlement because of the dramatic change in the economy and his financial fortunes, what are the chances for lesser mortals? The chances may be very slim indeed. The Court of Appeal gave a firm indication that such applications would be unlikely to succeed. Nevertheless we consider that there are still good reasons to be optimistic in seeking to set aside a final family court order where there have been dramatic changes in the finances as a consequence of the recession
Further details are given on the information pages
Reviews of “A Practical Guide To International Family Law” By David Hodson
This book published by Jordans in July 2008 has received some excellent reviews. Two are set out below. The first is by Catherine Jones and was published on Family Law Week. The second was published in Jordans Family Law magazine by Professor Nigel Lowe of the University of Cardiff.
Copies of the book can be obtained from Jordans or from iFLG.
Download the file review1.pdf ()
EU Maintenance Regulation
This EU Regulation came into force on 30 January, 2009. It will generally apply from June 2011 subject to progress with other international legislation. In summary it replaces Brussels I in respect of family law maintenance obligations. The intention is that a maintenance creditor should be able to obtain easily in a member state a decision which will be automatically enforceable in another member state without further formalities. At present the UK has not opted in. However it is anticipated that the UK will have done so by the time the Regulation applies. See the longer background article on the information pages, international finance and forum.
Family courts to be opened up to media access
Jack Straw, the Justice Minister, announced today in the House of Commons that the accredited media will be allowed to attend family proceedings, the judge will be able to exclude the media from specific proceedings where the welfare of children or the safety of the parties requires it, there will a pilot project involving publication of anonymised judgments from the lower courts that will start in Spring 2009, and allowing parties to disclose information to advisers (such as MPs) during the course of proceedings.
Jack Straw explained the reasons for announcing these changes:
“It is critical that family courts make the right decisions and the public have confidence they are doing so. A key part of building trust in the system is that people understand how it works.
At the same time, we must protect the privacy of children and families involved in family court cases so they are not identified or stigmatised by their community or friends.
These plans strike the right balance in providing a more open, transparent and accountable system while protecting children and families during a difficult and traumatic time in their lives.”
New powers of the court in respect of contact orders
The Children and Adoption Act 2006 came into effect today. It gives courts greater powers to enforce and implement contact orders, especially when one parent is thwarting contact. The court can make contact activity directions and make financial penalties and other enforcement orders.
New legislation to combat forced marriages
The Forced Marriage (Civil Protection) Act 2007 came into force today. It introduces powers to make new orders requiring individuals to, among other things hand over passports, stop intimidation and violence, reveal the whereabouts of a person and stop someone from being taken abroad. The court can provide protective orders for those who fear they are about to be forced into a marriage and for those who have already gone through a forced marriage. This can include powers of arrest. It can set aside a forced marriage. The orders can relate to conduct in England or abroad. Third parties can apply to the court for protective orders for those being forced into a marriage.
Rome III applicable law: EU proposals scrapped
News reaches us that the dramatic changes proposed by the EU in July 2006, and originally to be in force from March 2008, have been shelved. They would have fundamentally changed English family law so that we no longer applied our own English law but the laws of many other countries.
Rome III is a draft legislation proposed by the European Union in mid 2006 intended to come into force across the European Union in March 2008 and requiring all European Union countries to adopt in divorce and ancillary financial matters not necessarily the law of the land, English law in England, but the law of the country with which the couple concerned in the family law proceedings had the closest connection. So a French couple living long-term in England would have their divorce and financial proceedings in England decided by an English judge and English lawyers applying French law. It would not be limited to the European Union families. An Australian couple or a Nigerian couple getting divorced in England where they have presently jurisdiction would have Australian or Nigerian law applied. This presents colossal problems in practice with knowing what is the relevant foreign law and how it would be applied in the particular circumstances of the case and differentiating between the law itself and the procedure.
News has been reaching us over the past couple of weeks that the draft legislation has been shelved by the European Union. This was first posted by the Law Society Brussels office which is invariably very reliable and follows closely the European Union developments. However there was no official confirmation. From our own inquiries, it has now been confirmed to us by a senior judicial source and a senior government source. Accordingly we decided that the time was right to post this information.
It is thoroughly to be welcomed. The proposed change would have had probably the greatest transformation on English family law for a century. It would greatly have added to the costs of resolving a case, added greatly to the delays of resolution and made it much more difficult to settle cases because of the uncertainty of what was the foreign law. We are very pleased. We have been campaigning against the introduction of applicable law for several years.
However other legislation coming from Europe also features applicable law yet this is legislation which is desperately needed, such as improved reciprocal enforcement of family law financial orders across Europe. We hope very much that a way can now be found to introduce this legislation without the necessity of also imposing applicable law.
We continue to urge the European Union law reformers to amend the jurisdictional provisions in Brussels II by creating a hierarchy of jurisdiction for divorce. This would show the country with the closest connection to the family and this country would then deal with the divorce and other family law proceedings. In such a way, the race to issue in Brussels II which is so hated and so contrary to the whole ethos of settlement orientated resolution and reconciliation opportunities, would no longer be required. Also applicable law would no longer be an issue as the country with the closest connection to the family would apply its own local law.
If you require any further information on this, please contact David Hodson at iFLG
Marinos: new definitions of habitual residence and residence for European Union family law cases
Marinos: new definitions of habitual residence and residence for European Union family law cases, affecting opportunities to claim jurisdiction in countries with which a family has close connections.
An important decision by Mr Justice Munby in the English High Court has decided that in European Brussels II cases:
- habitual residence must be defined in accordance with European community law;
- habitual residence is more directed to a person’s fixed centre of interest rather than length of residency;
- a person can only have one habitual residence at any one time but can be resident in more than one country at any one time;
- habitual residence can be lost and gained within a day akin to domicile; and previous English law on residency and habitual residency still applies in non EU cases
The decision has very considerable relevance for international families with ongoing strong connections with two or more countries. It potentially broadens the opportunity to claim divorce jurisdiction in the more favourable country.
A commentary by David Hodson can be found on the information pages and is being published in the December edition of Family Law magazine.
Ministry of Justice consultation paper
he Ministry of Justice has produced a consultation paper, “Confidence and Confidentiality: openness in family courts-a new approach”. This follows up the consultation in 2006. Following strong representations by those representing children, the original proposal of allowing access to the family courts by the media as of right has been held back and instead a raft of proposals put forward to encourage the provision of information from the courts. Consultation ends on first October. Full details can be found at http://www.familylawweek.co.uk/library.asp?i=2980
Article published by David Hodson on the Charman judgement
Article published by David Hodson on the Charman judgment, providing a summary impact assessment, with a background to the case, the outcome and the judgement of the court on issues concerning trusts, the principle of equality of division, special contribution and a number of other important aspects of English financial provision law. The court also makes recommendations for reform of the law. It was first published by Family Law Week, online.
Child Support Agency to be replaced with another agency!
The government has at long last published a bill to replace the Child Support Agency, with another agency! Further comment will follow. The Bill is published at http://www.publications.parliament.uk/pa/cm200607/cmbills/118/2007118.pdf
Charman judgement is handed down by the Court of Appeal
Charman judgement is handed down by the Court of Appeal upholding the original decision giving the wife £48 million, the highest divorce order ever made by an English court after a contested hearing. It represented about 36.5% of the family wealth.
David Hodson will post a full article soon. The case has strengthened the equality sharing principle and drawn back from some of the comments made in Miller in the House of Lords. Trust funds treated as a family asset, rather than the niceties and artificialities of trust law, was upheld. Special contribution if inequitable to disregard can be a reason to depart from equality, but then based on the manner of accrual not necessarily the sheer size, but only in range of departure of 55% – 67%. Departure from equality was warranted in this case due to his special contribution and the fact she was receiving the more secure, less risky assets. The Court called for reform of Parliamentary financial provision law. The full article follows but iFLG will happily deal now with any questions about the implications of the judgement. Contact .(JavaScript must be enabled to view this email address)
Madeleine McCann media release - leaving no stone unturned
The following press release has been made on behalf of the McCann family.
Download the file
pr2.pdf ()
