THE INTERNATIONAL HAGUE NETWORK OF JUDGES

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1 THE INTERNATIONAL HAGUE NETWORK OF JUDGES The Hon. Madam Justice Robyn Moglove Diamond Court of Queen s Bench, Winnipeg, Manitoba, Canada September 26, 2013 The International Hague Network of Judges (IHNJ), specializing in family law was created at the Judges Seminar on International Protection of the Child that was held in De Ruwenberg, Netherlands in June of This historical seminar recommended that relevant authorities in the different jurisdictions designate 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 jurisdictions and judges in other Contracting States to deal with 1980 Hague Abduction Convention cases. It was agreed that such a Network would facilitate communication, collaboration and cooperation between judges at the international level and assist in ensuring the effective operation of the 1980 Hague Abduction Convention. The IHNJ presently includes 82 judges from 55 States from all continents around the world. 1 A conference celebrating the 15 th Anniversary of the International Hague Network of Judges was held in Cumberland Lodge, Windsor, England from July 17 19, It is noteworthy that 11 of the 56 judges in attendance are also members of the International Association of Women Judges (IAWJ). These include Judge Amina Augie (Nigeria), Justice Victoria Bennett (Australia), Justice Jill Black (England), Chief Justice Diana Bryant (Australia), Deputy High Court Judge Bebe Chu (Hong Kong), Justice Robyn Diamond (Canada), Chief Judge Jan-Marie Doogue (New Zealand), Justice Mary Finlay Geoghegan (Ireland (Republic)), Justice Martha Koome (Kenya), Justice Allyson Ramkerrysingh (Trinidad) and Judge Mary Sheffield (United States). 1 A complete list of the members is available on the website of the Hague Conference under Child Abduction Section then International Hague Network of Judges. 2 Judges from Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Cayman Islands, China (Hong Kong SAR), Costa Rica, Czech Republic, Denmark, Dominican Republic, Ecuador, Finland, France, Germany, Hungary, Ireland, Israel, Kenya, Malta, Mexico, Netherlands, New Zealand, Nicaragua, Nigeria, Norway, Pakistan, Panama, Paraguay, Rwanda, Singapore, Slovakia, Spain, Switzerland, Trinidad and Tobago, Uruguay, United Kingdom (England and Wales, Northern Ireland), United States of America, Venezuela and experts from the Commonwealth Secretariat, IberRed and the Permanent Bureau of the Hague Conference on Private International Law, were in attendance.

2 2 The focus of the discussions at the meeting in Windsor, England, was on the value of the IHNJ and Direct Judicial Communications ( DJC ) in international family law matters. A document entitled Draft Information Document on Direct Judicial Communications, in Specific Cases, within the Context of the International Hague Network of Judges, inspired in part by the already adopted 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 (hereinafter referred to as the Guidance and General Principles Document) was presented, discussed and endorsed by the Conference 3. This document resulted from extensive consultations by Philippe Lortie, First Secretary of the Hague Conference on Private International Law, with international experts drawn primarily from the judiciary on the issue of DJC between 2006 and An earlier version of this document was presented and endorsed at the Sixth Special Commission on the Practical Operation of the 1980 and 1996 Hague Conventions held in the Hague in 2011 and at the International Family Justice Judicial Conference, held in Hong Kong in The introduction summarizes the role of the IHNJ and direct judicial communications: The role of a member of the International Hague Network of Judges is to be primarily a link between his or her colleagues at the domestic level and other members of the Network at the international level. There are two main communication functions exercised by members of the Network. The first communication function is of a general nature (i.e. not case specific). The second communication function consists of direct judicial communications between two sitting judges with regard to specific cases. The objective of such communications is to address any lack of information of the competent judge, who, for example, may be seized of a return application under the 1980 Child Abduction Convention and may have questions about the situation and legal implications in the State of the habitual residence of the child. Current practice shows that these communications mostly take place in child abduction cases under the 1980 Child Abduction Convention. These cases show that these communications can be very useful for resolving some of the practical issues, for example, surrounding the safe return of a child (and accompanying parent, as necessary), including the establishment of urgent and / or provisional measures of protection and the provision of information about custody or access issues or possible measures for addressing domestic violence or abuse 3

3 3 allegations, and they may result in immediate decisions or settlements between the parents before the court in the requested State. These communications will often result in considerable time savings and better use of available resources, all in the best interests of the child. The role of the Hague Network Judge is to receive and, where necessary, channel incoming judicial communications and initiate or facilitate outgoing communications. Under Principles 6-9 entitled Principles for Direct Judicial Communications in specific cases including commonly accepted safeguards safeguards are set out to ensure the protection of due process and transparency in direct judicial communications. Under these safeguards it is clear that every judge engaging in direct judicial communication must respect the law in his or her jurisdiction; the parties and counsel should be notified in advance, if possible, of the nature of the proposed communications and that records be kept and made available to the parties and the judge in the other province with any correspondence, s or written communication between the judges preserved on the record. In addition to the Sixth Special Commission and the 2012 International Family Justice Judicial Conference, the concepts of direct judicial communication and the IHNJ have also been endorsed by resolutions passed at many other international conferences, which include: 1) The First Common-Law Judicial Conference on International Parental Abduction, (Washington, D.C., September 2000); 2) Fourth Special Commission on the 1980 Hague Abduction Convention, (The Hague, 2001); 3) The Fifth Special Commission, (The Hague, 2006); 4) The Joint Conference of the European Commission on the Hague Conference on Private International Law, (Brussels, January 2009); 5) The Third Judicial Conference on Cross Frontier Family Law Issues, (St. Juliens, Malta, March 2009); 6) The International Family Justice Judicial Conference on Common Law and Commonwealth Jurisdictions (Windsor, England, August 2009); 7) The 5 th World Congress on Family Law and Children s Rights Conference, (Halifax, Nova Scotia, August 2009);

4 4 8) The International Hague Network of Judges, Latin American Judges Meeting, (Motevideo, Uruguay, December 2009); 9) The International Judicial Conference on Cross Border Family Relocation, (Washington, D.C., March 2010); 10) The Inter-American Meeting of International Hague Network of Judges and Central Authorities on International Child Abduction, (Mexico, February 2011); 11) The 6 th World Congress on Family Law and Children s Rights Conference (Sydney, Australia, March 2013); 12) The 2 nd International Family Law & Practice: Parentage, Equality and Gender, London Metropolitan University, (London, England, July 2013). THE CANADIAN EXPERIENCE For more than a decade the Canadian judiciary has played a very active role in ensuring that inter-jurisdictional cases of parental child abduction, and in particular, cases arising under the 1980 Hague Abduction Convention are dealt with effectively and expeditiously by judges with experience in and an interest in family law. In Canada there are three Networks of judges who are responsible for the operation of the 1980 Hague Abduction Convention. These are the Special Committee on International Parental Child Protection, (the two members being part of the IHNJ), the Canadian Network of Contact Judges (Superior Court Trial level) and the Inter-Jurisdictional and Inter-Provincial Child Abduction Contact Judges (Provincial Court level). I have been privileged to be one of the two Canadian members of the IHNJ, along with Justice Jacques Chamberland of the Quebec Court of Appeal. I am also the Chair of the Canadian Network of Contact Judges. The Networks have focussed on ways of improving and expediting the handling of inter-jurisdictional cases of parental child abduction and custody. The Networks have developed a Procedural Protocol as a model that ensures that return applications are processed expeditiously and that courts adhere to time tables that ensure the speedy determination of return applications. The Networks also have approved a document for judicial communication which sets out a step-by-step procedure to be followed by judges in facilitating communications in other jurisdictions. These guidelines are very similar to those set out in the Guidance and General Principles Document referred to above and have proven to be very effective in dealing with cross border custody disputes. In my capacity as a member of the IHNJ and as the Chair of the Canadian Network of Contact Judges, I have personally facilitated over 20 judicial

5 5 communications through these two networks dealing with the 1980 Hague Abduction Convention. Judicial communication has proven to be a very valuable tool in resolving cross border jurisdictional issues resulting in international cases of child abduction being resolved in an efficient and speedy manner as contemplated by the 1980 Hague Abduction Convention. In recognition of the importance and need for the Canadian judges to receive appropriate training in the handling of these types of matters, members of the Canadian Network of Contact Judges have produced an educational module which has been presented to Canadian judges throughout the country. An integral part of this educational module is the Hague Convention Electronic Bench Book ( EBB ). This EBB provides a broad analytical framework and practical step-by-step suggestions for both case management and return hearings and includes our Procedural Protocol and Judicial Communication Guidelines. This EBB is now available for distribution to non-canadian judges through the following account: thehague@nji-inm.ca with a link being provided by the National Judicial Institute of Canada. To date, international judges from 14 countries have requested and been provided this EBB. JUDICIAL COLLABORATION AND COOPERATION: IAWJ and IHNJ The conference held in Windsor, England in July of 2013, concluded with 34 Conclusions and Recommendations. These can be found on the website of the Permanent Bureau. For the purposes of this article I will highlight a few of these Conclusions and Recommendations: 1. The Conference welcomes: b. the official publication of the Emerging Guidance and General Principles for Judicial Communications and encourages its wide dissemination both within the judiciary and the legal profession more broadly. The scope of DJC 2. The conference emphasises the provided value of the IHNJ and DJC in international child abduction cases. Designations to the IHNJ 6. The conference encourages Members of the IHNJ from States Parties to the 1980 Hague Convention to partner with a judge from a State Party which has not yet designated a judge to the IHNJ (in particular, those with which they may have special ties) in order to work with the judge in the latter State to bring about a designation to the IHNJ. Promotion of DJC and the IHNJ, including judicial education

6 6 11. The conference recognises the potential for judicial education bodies in every State to promote the use of DJC and to raise awareness and educate judges generally concerning the modern Hague Children s Conventions and the IHNJ with a view to developing expertise and building mutual trust and confidence. In keeping with the spirit of these recommendations, a number of members of the IAWJ, while at the Conference in Windsor, England, met and agreed that we should submit a proposal for a presentation with respect to the International Hague Network of Judges and Direct Judicial Communication in the context of the 1980 Hague Abduction Convention at the upcoming 12 th Biennial Conference of the IAWJ. If this proposal is accepted, we would take this opportunity to explain and promote the value of the IHNJ and DJC by raising awareness and educating judges who are members of the IAWJ.