INTERNATIONAL CHILD RELOCATION:
CANADIAN JUDICIAL INITIATIVES
ABA SECTION OF INTERNATIONAL LAW
INTERNATIONAL FAMILIES – MONEY, CHILDREN
AND LONG TERM PLANNING
MAY 25 & 26, 2012
WASHINGTON, D.C.
MADAM JUSTICE ROBYN MOGLOVE DIAMOND
COURT OF QUEEN’S BENCH, WINNIPEG, MANITOBA, CANADA
10:45 – 12:00
Program 2B: International Child Relocation, the
Washington Declaration. Lise Lafrenière-Henrie; Nancy Zalusky Berg; AnneMarie Hutchinson; Madam Justice Robyn Diamond.
Law of Relocation in Canada
The issue of relocation is a very difficult issue facing family judges and
practitioners in Canada, as it is throughout the rest of the world. As a judge, I
find these cases heart wrenching, particularly when both parents are loving and
involved and to whom the child is attached. These cases are fact driven with the
test being the “best interests” of the child. However, the outcomes of these
cases can be inconsistent and are often difficult to predict. This of course results
in contested litigation which is very draining on families financially and
emotionally.
The Supreme Court of Canada case of Gordon v. Goertz, [1996] 2 S.C.R. 27, is
the landmark case that guides Canadian judges on parental relocation cases.
The court held that a relocation application is to be decided based on the best
interests of the specific child involved without a presumption or onus in favour of
either party:
“The focus is on the best interests of the child, not the interests
and rights of the parents.
…
More particularly the judge should consider, inter alia:
a)
the existing custody arrangement
between the child and the custodial parent;
and
relationship
b)
the existing access arrangement and the relationship
between the child and the access parent;
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c)
the desirability of maximizing contact between the child
and both parents;
d)
the views of the child;
e)
the custodial parent’s reason for moving, only in the
exceptional case where it is relevant to that parent’s ability to
meet the needs of the child;
f)
disruption to the child of a change in custody;
g)
disruption to the child consequent on removal from family,
schools, and the community he or she has come to know.”
The Supreme Court directed judges in Canada when dealing with relocation
cases to follow the best interests of the child approach that requires an individual
assessment of each case. Since this decision many commentators in Canada
have criticized the decision for being vague, unclear, with outcomes in individual
cases being unpredictable and uncertain. Professor Rollie Thompson, in an
article entitled “Ten Years After Gordon, No Law, Nowhere” 35 R.F.L. 307,
concludes:
“That’s where we are left in Canada – a world of mobility without
presumptions, without burdens, with a fresh inquiry to custody with
each proposed move, litigation, relitigation, and with a lack of
consistency or predictability that comes with a “pure best interests
test”.
…
One of the most unfortunate effects of Gordon v Goertz has been its
demolition of any law at all in this field, to the point that trial and
appeal judges are unprepared to develop any working principles or
generalizations of any kind. Facts are stated and conclusions
reached, with the most modest explanation possible within the limits
of Gordon. In Canada, there is little “law” of relocation left. We are
not moving on we are just stuck in the same old place.”
It is significant to note that since this decision in 1996, the Supreme Court has
refused to grant leave to hear any relocation cases. This has resulted in a
number of Canadian experts calling for a reform in this area to provide greater
direction for judges, lawyers and parents in facilitating judicial resolution
promoting settlement and reducing costs. Many prominent family law experts in
Canada such as Professor Nicholas Bala, a law professor at Queen’s University,
Professor Rollie Thompson of Dalhousie University, Prof. Andrea Wheeler, a 2013
J.D. Candidate at Queen’s University and Phillip Epstein, Q.C. a family law
lawyer, argue that the highly discretionary nature of the best interests approach
promotes uncertainty and litigation resulting in the criticism that this is a “ruleless” area.
3
With the gracious permission of Professor Bala and Ms. Wheeler I have attached
their paper entitled “Canadian Relocation Cases: Heading Towards Guidelines”
which has been published by the Canadian Family Law Quarterly [Vol 30 C.F.L.Q.
270]. In their paper the authors summarize the trends in social science literature
on relocation and provide an analysis of the approximately 750 reported
Canadian cases on relocation from 2001 to 2011.
“The central argument of this article is that there are clear patterns
to how Canadian judges apply the ‘best interests of the child’ test in
relocation cases, and if lawyers and judges are aware of these
patterns, they can be better prepared to deal with such cases.
If lawyers have better guidance for understanding what Canadian
courts are likely to do in a relocation case, they can provide better
advice to their clients and settle more relocation cases.
Further, based on our analysis of Canadian precedents and the
patters in reported decisions, and consistent with the present social
science research, we conclude this article by proposing the
introduction of Relocation Advisory Guidelines [RAGs], suggesting
different presumptions for relocation applications in a range of
situations where relocation is, or is not, in the best interests of a
child. These guidelines only suggest presumptions that may assist in
the resolution of cases; they are not intended to displace the existing
best interests of the child test but rather to assist in its application.”
Professor Rollie Thompson in a recent paper entitled “Where is B.C. Law Going?
The New Mobility” which has been published by the Canadian Family Law
Quarterly [Vol 2012] 30 Can.F.L.Q. 235 -269, makes the following observation:
“What has become clear in recent years is that specialist family law
judges are much more likely to say ‘no’ to moves than are generalist
judges. Family law judges have been much more affected by recent
research that treats a move as a ‘risk factor’ for children, most
notably the work of Joan Kelly. Further, I would hypothesise that
Family law judges are more likely to focus upon the effects of a
move upon the children, and to pay less attention to the needs and
desires of the parents.”
Under the heading “A Word About Methodology”, Prof. Thompson at page 237
writes:
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“Predicting is not the same as presuming, however. I can predict
that a judge in a shared custody case will generally not permit a
move, but any particular judge can allow a move in a shared custody
case, with little explanation. There is no presumption against a
move that requires an explanation or a certain kind of evidence in
shared custody cases. Equally there is no presumption in favour of a
parent who is called a ‘primary caregiver’. That would be ‘law’, and
we have none of that in Canada in relocation cases.”
...
Presumptions are all about starting points, not end points, for the
reasoning that a presumption is not a ‘rule’. True, there can be
‘strong’ presumptions and ‘weak’ presumptions. A rule says that, if
certain facts are proved, then this must be the outcome. A
presumption in relocation law says that, if certain facts are proved,
then we start from the presumption that a move should (or
shouldn’t) be allowed, subject to the opposite party proving that the
best interests of the child warrants a different outcome. Any
presumption that can be rebutted by a child’s best interests is, by
definition, a weaker presumption. What presumptions do is increase
predictability and consistency and structure to decision making, while
at the same time leaving lots of wiggle-room for less typical or even
unusual facts. In most shared custody cases, for example, a
presumption against relocation would be a sensible outcome, but not
all of them.”
I
Special Committee on International Child Protection; Canadian
Network of Contact Judges; and Special Commissions on the 1980
Hague Abduction Convention
In September of 2006, the Canadian Judicial Council approved the establishment
of a Special Committee on International Child Protection by appointing two
Liaison Judges for Canada who are part of an International Network of Hague
Judges promoted by the Hague Conference o Private International Law under the
auspices of the Hague Convention on the Civil Aspects of International Child
Abduction. Justice Jacques Chamberland of the Quebec Court of Appeal and I
were appointed as Canada’s two Liaison Judges to the International Hague
Network. The most recent list of the members of the International Network of
Hague Judges is attached as Appendix “A”.
In April of 2007, the Canadian Judicial Council formally approved the
establishment of the Canadian Network of Contact Judges, Trial Level, (as part of
the Trial Courts Family Law Sub-Committee). This Network, which is made up of
5
trial judges representing every provincial and territorial superior court in Canada
was established to deal with issues of inter-jurisdictional parental child abduction
and cases of child custody. This Network was established to explore, amongst
other things, the concept of judicial networking and collaboration in cases of
international parent/child abduction and relocation. In 2009, the Canadian
Network “Terms of Reference” were expanded to include inter-jurisdictional
cases of child protection.
The Hague Conference on Private International Law convenes a Special
Commission every four to five years to review the practical operation of its
various Conventions. In recognition of the vital role that Judges play in the
operation of the 1980 Hague Abduction Convention, the Fourth Special
Commission that was held in 2001 marked the first Convention where judges
were invited to attend and participate. This was followed by the Fifth Special
Commission that was held in The Hague in 2006 and part one of the Sixth
Special Commission that was held in June 2011 and the second part of the Sixth
Special Commission that was held in January 2012.
Justice Jacques Chamberland and I have attended all of these Special
Commissions in our capacity as the Canadian members of the International
Hague Network of Judges.
II
Washington Declaration – March 23 – 25, 2010
Justice Chamberland and I, in our capacity as International Hague Network
Judges attended the International Judicial Conference on Cross-Border Family
Relocation which was organized by the International Center for Missing and
Exploited Children and the Hague Conference on Private International Law, with
the support of the State Department of the United States of America and held in
Washington, D.C. on March 23 – 25, 2010. This conference was attended by
more than 50 judges and other experts from Argentina, Australia, Brazil, Canada,
France, Egypt, Germany, India, Mexico, New Zealand, Pakistan, Spain, United
Kingdom and the United States as well as experts from the Hague Conference on
Private International Law and the International Center for Missing and Exploited
Children.
The focus of this conference was the examination of the inter-play between
relocation and parental child abduction. Different approaches to relocation and
their impact on child abduction in the operation of the 1980 Hague Abduction
Convention were canvassed as well as the impact of relocation on the well being
of children. In an effort to find common principles to apply to international
family relocation cases, this conference issued a common declaration to be
applied to international family relocation. This document is commonly referred
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to as the “Washington Declaration on International Family Relocation” and is
attached as Appendix “B”.
The Washington Declaration endorses the concept that the best interests of the
child should be the paramount (primary) consideration and a determination
should be made without any presumption for or against relocation.
A list of 13 factors to be considered in making a decision on relocation based on
the best interest test is listed in paragraph 4 of The Washington Declaration.
Recognizing that relocation issues often overlap with parental child abduction
issues, this issue was dealt with at the 8th meeting of the Canadian Network that
took place in February of 2011.
After much discussion the Canadian Network strongly endorsed the concept of
international standards for relocation and embraced the Washington Declaration.
However, the Network added an additional factor to be listed as a criteria to be
considered and that is as follows:
“The child’s cultural heritage, including the unique considerations
effecting children of indigenous heritage.”
III
Direct Judicial Communication
The Washington Declaration encouraged international cooperation between
judges including judicial communication. Paragraph 11 provides as follows:
“Direct judicial communications between judges in the affected
jurisdictions are encouraged to help establish, recognise and
enforce, replicate and modify, where necessary, relocation orders.”
Unlike the United States, direct judicial communication is a relatively new
concept in Canada that has been gaining general acceptance by Family law
Judges and lawyers in Canada, with a new culture slowly and steadily emerging.
Since the establishment of the Canadian Network of Contact Judges and the
International Network of Hague Judges there have been a growing number of
situations involving direct judicial communication that have illustrated the
importance of judicial networking and cross-border collaboration.
The
importance of judicial communication, cooperation, consultation, collaboration
both internationally and inter-provincially have resulted in international cases of
abduction being resolved an efficient and speedy manner as contemplated by the
1980 Hague Abduction Convention.
7
At the 2001 Special Commission the concept of direct judicial communication in
international cases of child protection were recommended subject to safeguards.
These were reaffirmed by the 2006 Special Commission. At its February 2009
meeting, the Canadian Network of Contact Judges developed and approved a
document entitled “Recommended Practices for Court-to-Court Judicial
Communications”, which is attached as Appendix “C”. In April 2011 the
Canadian Network approved a step-by-step procedure to be followed involving
the Network and Liaison Judges to facilitate judicial communications between
Canadian judges and judges in another jurisdiction, a copy is attached as
Appendix “D”.
Both Justice Chamberland and I participated in the 2009 Brussels Conference
which passed resolutions emphasizing the value of direct judicial communications
as well as the development of national networks in support of international
regional networks.
I have set out below some of our experiences with direct international judicial
communication to illustrate its importance in the speedy resolution of
international abduction cases.
In March 2007, Justice Joseph Kay, the Liaison Judge for Australia, on behalf of a
colleague, electronically contacted Justice Emile Kruzick of the Ontario Superior
Court and the author with a request for information and clarification concerning
jurisdiction and procedure in Ontario, in light of conflicting custody orders made
by Australian and Ontario Courts. In less than one week of the receipt of this
request, the required information was obtained and submitted electronically to
Justice Kay, who in turn conveyed the information to the presiding Judge in
Australia.
In October 2007, I received an electronic request from the Office of Lord Justice
Thorpe, the Liaison Judge for England and Wales on behalf of a colleague who
was dealing with an urgent 1980 Abduction Convention case. This case involved
a mother who had allegedly wrongfully retained her children in England. The
father, from Alberta, appeared in the court in England requesting an order for
the return of the children to Alberta. Before dealing with the father’s application
for a return order to Alberta, the Judge in England wished to have contact with
the Network Judge in Alberta to discuss issues pertaining to this matter. The
request from Lord Justice Thorpe’s office was sent electronically to Justice
Andrea Moen, the Network Judge for Alberta. Upon receipt of the email, Justice
Moen contacted the presiding judge in England electronically and arrangements
were made for the two judges to speak directly with each other by telephone.
During the telephone conversation the judge in England requested assurance
that if the mother was sent back to Alberta she would not be arrested and that
she would get an early court date to deal with the merits of her custody case.
8
Justice Moen contacted the Alberta Central Authority who gave assurances that
there were no outstanding warrants for the mother’s arrest. Further, Justice
Moen was able to reach counsel for the parties in Calgary advising that as soon
as they were ready to proceed they would be able to obtain an early court date
in Calgary. Within one week of the initial email, Justice Moen communicated the
information back to the judge in England with a complete answer to his
questions.
In June of 2010, I received an electronic request from Louise McKechnie, lawyer
to the Head of International Family Justice in the United Kingdom (Lord Justice
Thorpe) requesting assistance regarding a complex Anglo-Canadian family law
case which was being heard by Justice Parker of the High Court of Justice,
Family Division, London, England. As there had been proceedings concerning
the same family before Justice Maderscheid of the Court of Queen’s Bench of
Alberta, Judicial District of Edmonton on September 4, 2009, Justice Parker
requested that direct contact be established with Justice Maderscheid. Upon
receipt of Ms. McKechnie’s request, the author electronically forwarded the
request to Justice Andrea Moen, the Network Judge for Alberta. As Justice
Maderscheid was not seized of this matter and the discussion revolved around
procedure and process, Justice Moen arranged a telephone conference with
Justice Parker resulting in Justice Parker making her decision without any need
for interference from the court in Alberta.
In the precedent setting case of Hoole v Hoole1, Justice Donna Martinson, the
Network Judge for British Columbia, at that time, found it appropriate for the
Supreme Court of British Columbia to communicate directly with the Circuit Court
in the State of Oregon and participate in a joint hearing held in open court in
both Oregon and British Columbia with counsel present. As a result of the joint
hearing, it was determined that the Supreme Court of British Columbia was the
appropriate forum to determine the issue of custody. In her written reasons,
Justice Martinson, an esteemed and well respected Canadian jurist, thoroughly
canvassed the literature and authorities throughout the common-law world on
the subject of cross-border direct judicial communication.
As noted by Canadian family law experts Philip Epstein, Q.C., and Lena Marsden
in “This Week in Family Law”, November 4, 2008, the Hoole decision marks a
very important development in child custody law in Canada:
“This case, we think, for the first time canvasses a
number of important issues about direct judicial
communication and the growing development of this
phenomenon throughout the common-law world. …
Justice Martinson canvasses Oregon’s request for
1
[2008] B.C.J. No. 1768, (2008) BCSC 1248
9
direct judicial communication, the nature and conduct
of the joint hearing, how the direct judicial
communication should take place, international
support for direct judicial communication, and specific
issues relating to the direct judicial communication.
This is a must-read for judges and counsel
involved in cross-border cases. It recognizes
the importance and continuing development of
direct judicial communication with other
courts. This is a development that is taking
place throughout the common-law world and
has been the subject of much judicial
literature. There are guidelines and protocols
to be followed which counsel and judges must
become familiar with. “(emphasis added)
In Vol. 50 of Reports of Family Law, Sixth Series, at page 275, Aaron Franks, the
editor, noted the following:
“Historically, one of the great complexities in dealing
with inter-jurisdictional custody disputes (pursuant to
the Hague Convention on the Civil Aspects of
International Child Abduction, 1980, or otherwise)
was the lack of communication between the proposed
jurisdictions. Until one court issued an order, courts
of a contesting jurisdiction had no idea what the court
in the other jurisdiction was thinking. This lack of
communication would then sometimes result in the
courts of more than one state claiming jurisdiction.
In recent cases pursuant to the Hague Convention
and in other cases where there is a jurisdiction
contest relating to children and children’s issues,
judges from the opposing jurisdictions are beginning
to dialogue in an effort to deal with the issues
practically, cooperatively and quickly.
The early
resolution of such inter-jurisdictional custody contests
are necessary to meet the best interests of the
children so as to ensure that one party, by his or her
intransigence, cannot strengthen their position by
prolonging a status quo, to be relied upon when the
custody case is ultimately heard.”
10
In the case annotation dated November 2, 2010, in “This Week in Family Law”,
Epstein and Madsen comment on the recent case of Campbell v Campbell,
[2010 ONSC 4363 CanLII], wherein Justice Kruzick communicated with a judge
in Utah as being “a perfect example of how the judicial networking system is
supposed to work and led to an expeditious and obviously correct result on the
issue of jurisdiction”. In dealing with the duplicate proceedings in the two
different jurisdictions being Ontario and Utah, Justice Kruzick noted at
paragraph 11:
“[11]
In April 2007 the Canadian Judicial Council approved the
concept of judicial networking and collaboration in cases where
another jurisdiction is involved. The protocol encourages direct
judicial communication with the other jurisdiction. The judicial
communication is not for the purpose of considering the merits of
the case. Rather it is simply to make the other court aware of the
dual proceedings. The purpose was best expressed by Martinson J.
in Hoole v. Hoole, 2008 B.C.S.C. 1248 (B.C.S.C.) as follows:
There is a recognition that judicial communication
should not be for the purpose of considering the
merits of the case. Instead, it can provide judges with
the relevant information needed to make necessary
decisions, such as making informed decisions on
jurisdiction, including the location of the place of
habitual residence. It can also assist judges in
obtaining information about the custody laws of the
other jurisdiction, which is needed to determine
whether a removal or retention was wrongful.”
In February 2011 I received a request from Justice Dennis Maher, a roster Hague
Network Judge for Saskatchewan involving a five year old child with whom he
had ordered returned from Saskatoon to Arizona pursuant to the Hague
Convention. However, before the return would take place Justice Maher
requested that the author facilitate communication with the judge in Arizona with
respect to the specifics of the return. I contacted the American Network of
Contact Judges who in turn contacted the appropriate judge in Phoenix, Arizona.
As a result, a joint hearing was held with the father and his counsel in Arizona
before a judge in Arizona and the mother, her counsel and the father’s counsel
appearing before Justice Maher in Saskatchewan. This was done by a telephone
conference call between the two courts. At the hearing, the Arizona judge set a
time and date for an appearance by the parties for commencement of custody
proceedings on the merits in Phoenix. Subsequently, Justice Maher who was
now reassured by the judge in Arizona as to the fact that the matter would be
proceeding in a timely fashion gave his decision on the specifics of the return.
11
The Canadian approach to direct judicial communication in international child
protection and custody matters has also received international support. The
Honourable Diana Bryant, Chief Justice of the Australian Family Court, in a paper
entitled “Direct Judicial Communication in 2010, What Can We Expect?” (The
Judge’s Newsletter, Volume XV/Autumn 2009, footnote 3, p. 172 at 173) that
was presented at the Joint Conference of the European Commission on The
Hague Conference on Private International Law held in Brussels in January of
2009, commented on Justice Martinson’s decision in Hoole:
… [the] Judgment in Hoole v Hoole [2008] BCSC 1248
is considered particularly noteworthy for its forceful
and cogent articulation of the advantages of direct
judicial communication. As [the Court] states, ‘By
communication directly between judges, courts are
fulfilling their mandate under the Hague Convention,
or its equivalent, to cooperate to facilitate the prompt
and safe return of children. [Judicial communication]
leads to the making of fair, impartial, timely, and wellinformed decisions by the judge who should be
making the decision, applying the laws of that judge’s
jurisdiction.’
These experiences not only illustrate that the Canadian judicial model, being the
two liaison judges who are part of the International Network along with the
Canadian Network of Contact Judges, works well, but also that the International
Network of Judges works well and is extremely efficient.
IV
Sixth Special Commission on the Practical Operation of the 1980
and 1996 Hague Conventions
At Part Two of the Special Commission that was held in The Hague in January of
2012, the issues of direct judicial communication and international family
relocation were discussed. The following sets out the recommendations that
flowed from this Commission:
Re:
Direct Judicial Communications
“3.
The Special Commission supports that consideration be
given to the inclusion of a legal basis for direct judicial
communications in the development of any relevant future Hague
Convention.
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4.
In relation to future work, the
recommends that the Permanent Bureau:
(a)
Special
Commission
promote the use of the Emerging Guidance and General
Principles on Judicial Communications;
(b)
continue to encourage the strengthening and expansion of
the International Hague Network of Judges; and
(c)
maintain an inventory of domestic legal basis relating to
direct judicial communication.”
Re:
International Relocation
“8.
The Special Commission recognises that the Washington
Declaration provides a valuable basis for further work and
reflection.
9.
The Special Commission notes support for further work
being undertaken to study and gather information concerning the
different approaches adopted in various legal systems to
international family relocation, in relation to private international
law issues and the application of the 1996 Convention.
10.
Recognising the value of the 1996 Convention to
international family relocation, States that have not yet done so are
encouraged to consider ratification of or accession to the
Convention.”
V
Conclusion
It is hoped that the very positive experience of the International Network of
Hague Judges in cooperation, collaboration and communication in dealing with
cases of international child abduction will now be extended to cases of
international relocation, as encouraged by the Washington Declaration.
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APPENDIX ‘A’
9 March 2012
INTERNATIONAL HAGUE NETWORK OF JUDGES
ARGENTINA
Judge Graciela TAGLE, Judge of the City of Cordoba (Juez de la Ciudad de Córdoba), Córdoba
AUSTRALIA
The Honourable Chief Justice Diana BRYANT, Appeal Division, Family Court of Australia,
Melbourne (alternate contact)
The Honourable Justice Victoria BENNETT, Family Court of Australia, Commonwealth Law Courts,
Melbourne (primary contact)
AUSTRIA
Dr. Andrea ERTL, Judge at the District Court of Linz (Bezirksgericht Linz), Linz
BELGIUM
Ms Myriam DE HEMPTINNE, Magistrate of the Court of Appeals of Brussels (Conseiller à la Cour
d’appel de Bruxelles), Brussels
BRAZIL
Judge Mônica Jacqueline SIFUENTES PACHECO DE MEDEIROS, Federal Judge – Federal Court of
Appeals (Juiz Federal – Tribunal Federal de Apelações), Brasilia
With geographical responsibility for: the Federal District of Brasilia and the Federal States of
Acre, Amapá, Amazonas, Bahia, Goiás, Maranhão, Mato Grosso, Minas Gerais, Pará, Piauí,
Rondônia, Roraima, Tocantins, São Paulo and Mato Grosso do Sul.
Judge Jorge Antonio MAURIQUE, Federal Judge – Regional Federal Court of the Fourth Region
(Juiz Federal – Tribunal Regional Federal da 4ª Região), Porto Alegre, Rio Grande do Sul
With geographical responsibility for: Rio Grande do Sul, Santa Catarina and Paraná.
14
BULGARIA
Judge Bogdana JELIAVSKA, Vice President of the Sofia City Court, Sofia
CANADA
The Honourable Justice Jacques CHAMBERLAND, Court of Appeal of Quebec (Cour d’appel du
Québec), Montreal (Civil Law)
The Honourable Justice Robyn M. DIAMOND, Court of Queen's Bench of Manitoba, Winnipeg
(Common Law)
CHILE
Judge Hernán Gonzalo LÓPEZ BARRIENTOS, Judge of the Family Court of Pudahuel (Juez titular
del Juzgado de Familia de Pudahuel), Santiago de Chile
CHINA (Hong Kong, Special Administrative Region)
The Honorable Mr Michael HARTMANN, Justice of Appeal of the Court of Appeal of the High Court,
High Court, Hong Kong Special Administrative Region
The Honourable Judge Bebe Pui Ying CHU, Principal Family Court Judge, Family Court - Wachai
Law Courts, Hong Kong Special Administrative Region
COLOMBIA
Doctor José Guillermo CORAL CHAVES, Magistrate of the Civil Family Chamber of the Superior
Court for the Judicial District of Pasto (Magistrado de la Sala Civil Familia del Tribunal Superior
del Distrito Judicial de Pasto), Pasto
COSTA RICA
Mag. Diego BENAVIDES SANTOS, Judge of the Family Tribunal, First Judicial Circuit (Juez del
Tribunal de Familia, Primer Circuito Judicial), San José
CYPRUS
The Honourable Justice George A. SERGHIDES, Doctor at law, President of the Family Court of
Nicosia-Kyrenia, Nicosia
CZECH REPUBLIC
Judge Lubomir PTÁČEK, Regional Court Ústí nad Labem, Branch Office in Liberec, Liberec
DENMARK
Judge Bodil TOFTEMANN, City Court of Copenhagen (Københavns Byret), Copenhagen
15
DOMINICAN REPUBLIC
Judge Antonia Josefina GRULLÓN BLANDINO, Court of Children and Adolescents, National
District, Civil Chamber (Tribunal de Niños, Niñas y Adolescentes, Distrito Nacional Sala Civil),
Santo Domingo
ECUADOR
Dr Arturo MÁRQUEZ MATAMOROS, Provincial Judge of the Court of Appeal of El Oro (Juez
Provincial de la Corte de Apelaciones de Justicia de El Oro), Machala
EL SALVADOR
Lic. Evelyn Roxana NUÑEZ FRANCO, Magistrate of the Administrative Litigation Chamber of the
Supreme Court of Justice (Magistrada de la Sala de lo Contencioso Administrativo de la Corte
Suprema de Justicia), San Salvador
Lic. Ana Guadalupe ZELEDON VILLALTA, Fourth Family Court of San Salvador, Integrated Judicial
Centre of Private and Social Law (Juzgado 4 de Familia de San Salvador, Centro Judicial
Integrado de Derecho Privado y Social), San Salvador
FINLAND
Justice Elisabeth BYGGLIN, Helsinki Court of Appeal (Helsingin Hovioikeus), Helsinki
FRANCE
Ms Bénédicte VASSALLO, Deputy Judge of the First Chamber of the Court of Cassation (conseiller
référendaire à la première chambre de la Cour de cassation), Paris
GABON
Judge Jean-Pierre SOBOTCHOU, Presiding Judge, Cour de Cassation du Gabon, Libreville
GERMANY
Judge Martina ERB-KLÜNEMANN, Judge of the Family Court, District Court of Hamm (Richterin
am Amtsgericht, Amtsgericht Hamm), Hamm
Judge Sabine BRIEGER, Judge of the Family Court, District Court of Pankow-Weißensee
(Richterin am Amtsgericht, Amtsgericht Pankow-Weißensee), Berlin
GUATEMALA
Judge Rony Eulalio LÓPEZ CONTRERAS, First Magistrate of the Court of Appeals for Children and
Adolescents (Magistrado Vocal Primero de la Sala de la Corte de Apelaciones de la Niñez y
Adolescencia)
HONDURAS
Judge Belia Olmeda TORRES MERLO, Judge of First Instance for Children, Children’s Court of
First Instance of San Pedro Sula (Jueza de Letras de la Niñez, Juzgado de Letras Primero de la
16
Niñez San Pedro Sula), San Pedro Sula
Judge Anny Belinda OCHOA MEDRANO, Judge of First Instance for Children, Second Children’s
Court of First Instance for the Department of Francisco Morazán (Jueza de Letras de la Niñez,
Juzgado de Letras Segundo de la Niñez, del Departamento de Francisco Morazán), Tegucigalpa
ICELAND – NEW DESIGNATION PENDING
IRELAND
The Honourable Ms Justice Mary FINLAY GEOGHEGAN, The High Court, Dublin
ISRAEL
The Honourable Judge Neal HENDEL, Supreme Court of Israel, Jerusalem
KENYA (Non-State Party to the 1980 Convention)
The Honourable Lady Justice Martha KOOME, The High Court, Nairobi
LUXEMBOURG
Mr Serge WAGNER, Advocate-General (Avocat général), General Prosecutor’s Office of
Luxembourg (Parquet général du Grand-duché de Luxembourg), Luxembourg
MALTA
The Hon. Mr Justice Noel CUSCHIERI, President, Family Section of the Civil Court, Courts of
Justice, Valletta
MEXICO
Lic. Adriana CANALES PÉREZ, Magistrate of the Third Family Chamber, Superior Court of Justice
of the Federal District (Magistrada de la Tercera Sala Familiar, Tribunal Superior de Justicia del
Distrito Federal), Mexico D.F.
Lic. Dionisio NÚÑEZ VERDIN, Judge of First Instance in Family Law (Juez de Primera Instancia en
materia familiar), Jalisco
Dr Lázaro TENORIO GODÍNEZ, Judge of the First Family Chamber, Superior Court of Justice of
the Federal District (Magistrado de la Primera Sala Familiar, Tribunal Superior de Justicia del
Distrito Federal), Mexico D.F.
Lic. Oscar Gregorio CERVERA RIVERO, President of the Second Family Chamber, Superior Court
of Justice of the Federal District (Presidente de la Segunda Sala Familiar, Tribunal Superior de
Justicia del Distrito Federal), Mexico D.F.
NETHERLANDS
Judge Robine DE LANGE-TEGELAAR, Vice-President, District Court of The Hague, The Hague
(primary contact)
17
Judge Jacques M.J. KELTJENS, Vice-President, District Court of The Hague, The Hague (alternate
contact)
NEW ZEALAND
His Honour Judge Peter BOSHIER, Principal Family Court Judge, Chief Judge’s Chambers,
Wellington
NICARAGUA
Mag. María José ARÁUZ HENRÍQUEZ, First Family District Judge (Juez Primero de Distrito de
Familia), Managua
NORWAY
Judge Anne Marie SELVAAG, Trondheim District Court, Trondheim
Judge Torunn Elise KVISBERG, PhD, Sør – Gudbrandsdal District Court, Lillehammer
PANAMA
Lic. Edgar TORRES SAMUDIO, Court of Children and Adolescents of the Chiriquí Judicial Circuit
(Juzgado de Niñez y Adolescencia del Circuito Judicial de Chiriquí), Chiriquí
Lic. Delia CEDEÑO P., Judge of Children and Adolescents of the First Judicial Circuit of Panama
(Jueza de Niñez y Adolescencia del Primer Circuito Judicial de Panamá), Panama City
PARAGUAY
Professor Dr. Irma ALFONSO DE BOGARÍN, Magistrate of the Criminal Court of Appeals for
Adolescents, Capital District (Magistrada del Tribunal de Apelaciones en lo Penal de la
Adolescencia de la Capital), Asunción
Abg. María Eugenia GIMÉNEZ DE ALLEN, Judge of the Court of Appeals for Children and
Adolescents, Central Department (Miembro de Tribunal de Apelación de Niñez y Adolescencia del
Departamento de Central), Asunción
PERU
Dra. Luz María CAPUÑAY CHÁVEZ, Superior Judge, First Family Chamber of the Superior Court of
Justice (Vocal Superior de la Corte Superior de Justicia, Sala de Familia, Poder Judicial), Lima
ROMANIA
Judge Andreea Florina MATEESCU, Bucharest Tribunal, Vth Civil Section, Bucharest (primary
contact)
Judge Anca Magda VLAICU, Bucharest Tribunal, IVth Civil Section, Bucharest (alternate contact)
18
SINGAPORE
Senior District Judge FOO Tuat Yien, Family and Juvenile Justice Division, Subordinate Court, Singapore
SOUTH AFRICA
The Honourable Mrs Justice Belinda VAN HEERDEN, Supreme Court of Appeal, Bloemfontein
SPAIN
The Honourable Judge Francisco Javier FORCADA MIRANDA, Family Court of First Instance No 6
(Juzgado de Primera Instancia N° 6 de Zaragoza), Saragossa
SWEDEN
The Honourable Judge Ann-Sofie BROQVIST, Stockholm District Court (Stockholms Tingsrätt),
Stockholm
TRINIDAD AND TOBAGO
The Honourable Madam Justice Allyson RAMKERRYSINGH, Family Court of Trinidad and Tobago,
Port of Spain
UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
For England and Wales
The Right Honourable Lord Justice Mathew THORPE, Judge of the Court of Appeal, Head of
International Family Justice, The Royal Courts of Justice, London
For Northern Ireland
The Honourable Mr Justice Ben STEPHENS, The Royal Courts of Justice, Belfast
For Scotland
The Honourable Lord WOOLMAN (Stephen), Supreme Court, Edinburgh
Sheriff Deirdre MACNEILL, Sheriff Court House, Edinburgh
19
For British Overseas Territories
Cayman Islands
The Honourable Judge Anthony SMELLIE, Chief Justice of the Cayman Islands, Chief Justice’s
Chambers, Grand Cayman
UNITED STATES OF AMERICA
The Honourable Justice James GARBOLINO, Former Presiding Judge, Superior Court of California,
Roseville
The Honourable Judith L. KREEGER, Circuit Judge, Eleventh Judicial Circuit of Florida, Miami
The Honourable Peter J. MESSITTE, United States Federal District Judge, US District Court for
the District of Maryland, Greenbelt
The Honourable Mary W. SHEFFIELD, Presiding Judge, Circuit Court, Rolla
URUGUAY
The Honourable Judge Ricardo C. PÉREZ MANRIQUE, Magistrate of the Second Session of the
Court of Appeal of Family Affairs (Ministro del Tribunal de Apelaciones de Familia de 2° Turno de
Montevideo), Montevideo
VENEZUELA
Dra. Rosa Isabel REYES REBOLLEDO, President of the Judicial Circuit of for the Protection of
Children and Adolescents for the Judicial District of the Caracas Metropolitan Area and National
Co-ordinator of International Adoption (Presidente del Circuito de Protección de Niños, Niñas y
Adolescentes de la Circunscripción Judicial del Área Metropolitana de Caracas y Coordinador
Nacional de Adopción Internacional), Caracas
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APPENDIX “B”
INTERNATIONAL JUDICIAL CONFERENCE ON
CROSS‐BORDER FAMILY RELOCATION
WASHINGTON, D.C., UNITED STATES OF AMERICA
23‐25 MARCH 2010
co‐organised by
Hague Conference on Private International Law
International Centre for Missing and Exploited Children
with the support of
United States Department of State
WASHINGTON DECLARATION ON
INTERNATIONAL FAMILY RELOCATION
On 23‐25 March 2010, more than 50 judges and other experts from Argentina,
Australia, Brazil, Canada, France, Egypt, Germany, India, Mexico, New Zealand,
Pakistan, Spain, United Kingdom and the United States of America, including
experts from the Hague Conference on Private International Law and the
International Centre for Missing and Exploited Children, met in Washington, D.C.
to discuss cross‐border family relocation. They agreed on the following:
Availability of Legal Procedures Concerning International Relocation
1. States should ensure that legal procedures are available to apply to the
competent authority for the right to relocate with the child. Parties should be
strongly encouraged to use the legal procedures and not to act unilaterally.
Reasonable Notice of International Relocation
2. The person who intends to apply for international relocation with the child
should, in the best interests of the child, provide reasonable notice of his or her
intention before commencing proceedings or, where proceedings are
unnecessary, before relocation occurs.
Factors Relevant to Decisions on International Relocation
3. In all applications concerning international relocation the best interests of the
child should be the paramount (primary) consideration. Therefore,
21
determinations should be made without any presumptions for or against
relocation.
4. In order to identify more clearly cases in which relocation should be granted
or refused, and to promote a more uniform approach internationally, the exercise
of judicial discretion should be guided in particular, but not exclusively, by the
following factors listed in no order of priority. The weight to be given to any one
factor will vary from case to case:
i) the right of the child separated from one parent to maintain personal relations
and direct contact with both parents on a regular basis in a manner consistent
with the child’s development, except if the contact is contrary to the child’s best
interest;
ii) the views of the child having regard to the child’s age and maturity;
iii) the parties’ proposals for the practical arrangements for relocation, including
accommodation, schooling and employment;
iv) where relevant to the determination of the outcome, the reasons for seeking
or opposing the relocation;
v) any history of family violence or abuse, whether physical or psychological;
vi) the history of the family and particularly the continuity and quality of past and
current care and contact arrangements;
vii) pre‐existing custody and access determinations;
viii) the impact of grant or refusal on the child, in the context of his or her
extended family, education and social life, and on the parties;
ix) the nature of the inter‐parental relationship and the commitment of the
applicant to support and facilitate the relationship between the child and the
respondent after the relocation;
x) whether the parties’ proposals for contact after relocation are realistic, having
particular regard to the cost to the family and the burden to the child;
xi) the enforceability of contact provisions ordered as a condition of relocation in
the State of destination;
xii) issues of mobility for family members; and
xiii) any other circumstances deemed to be relevant by the judge.
22
5. While these factors may have application to domestic relocation they are
primarily directed to international relocation and thus generally involve
considerations of international family law.
6. The factors reflect research findings concerning children’s needs and
development in the context of relocation.
The Hague Conventions of 1980 on International Child Abduction and
1996 on International Child Protection
7. It is recognised that the Hague Conventions of 1980 and 1996 provide a
global framework for international co‐operation in respect of cross‐border
family relocations. The 1980 Convention provides the principal remedy (the order
for the return of the child) for unlawful relocations. The 1996 Convention allows
for the establishment and (advance) recognition and enforcement of relocation
orders and the conditions attached to them. It facilitates direct co‐operation
between administrative and judicial authorities between the two States
concerned, as well as the exchange of information relevant to the child’s
protection. With due regard to the domestic laws of the States, this framework
should be seen as an integral part of the global system for the protection of
children’s rights. States that have not already done so are urged to join these
Conventions.
Promoting Agreement
8. The voluntary settlement of relocation disputes between parents should be a
major goal. Mediation and similar facilities to encourage agreement between the
parents should be promoted and made available both outside and in the context
of court proceedings. The views of the child should be considered, having regard
to the child’s age and maturity, within the various processes.
Enforcement of Relocation Orders
9. Orders for relocation and the conditions attached to them should be able to be
enforced in the State of destination. Accordingly States of destination should
consider making orders that reflect those made in the State of origin. Where
such authority does not exist, States should consider the desirability of
introducing appropriate enabling provisions in their domestic law to allow for the
making of orders that reflect those made in the State of origin.
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Modification of Contact Provisions
10. Authorities in the State of destination should not terminate or reduce the left
behind parent’s contact unless substantial changes affecting the best interests of
the child have occurred.
Direct Judicial Communications
11. Direct judicial communications between judges in the affected jurisdictions
are encouraged to help establish, recognise and enforce, replicate and modify,
where necessary, relocation orders.
Research
12. It is recognised that additional research in the area of relocation is necessary
to analyse trends and outcomes in relocation cases.
Further Development and Promotion of Principles
13. The Hague Conference on Private International Law, in co‐operation with
the International Centre for Missing and Exploited Children, is encouraged to
pursue the further development of the principles set out in this Declaration and
to consider the feasibility of embodying all or some of these principles in an
international instrument. To this end, they are encouraged to promote
international awareness of these principles, for example through judicial training
and other capacity building programmes.
APPENDIX “C”
RECOMMENDED PRACTICES FOR
COURT-TO-COURT JUDICIAL COMMUNICATIONS
Background
The Canadian Judicial Council, which has
Canadian Network of Contact Judges, has
explore the concept of judicial networking
abduction and custody.
The following
recommendations for such practices.
approved the establishment of the
given the Network the mandate to
and collaboration in cases of child
checklist sets out the Network’s
Checklist1
INITIATING CONTACT WITH FOREIGN COURTS
A.
Due process and transparency
1.
Every judge engaging in direct judicial communication must respect the
law in his or her jurisdiction.
2.
Notification of the Parties about communication
a)
3.
Record of the communication
a)
b)
c)
4.
Judges involved in a particular communication should keep a record
of what was discussed preferably using a recording device or court
reporter.
The record should be available to the parties and the judge in the
other jurisdiction if requested.
Any correspondence, emails or other written communication
between judges should be preserved for the record.
Participation of the parties
a)
1
The parties and/or counsel involved should be notified in advance if
possible of the nature of the proposed communication provided
that such notice does not unduly delay the process.
If both judges involved in the communication agree, the parties or
It is acknowledged with appreciation that James Garbolino’s Hague Convention website which
includes a checklist formed the basis for this checklist along with the Ontario Superior Court’s
“Protocol for Direct Judicial Communication and Justice Martinson’s decision in Hoole v Hoole
2008 BCSC 1248.
b)
c)
d)
e)
f)
5.
Language
a)
6.
their representative may be permitted to be present during the
communication.
If both judges involved in the communication agree to permit one
party or representative to be present, then the other party or
representative should be permitted to be present.
Unless it would unduly delay the process, parties or their
representative would be encouraged to be present for example via
conference call facility.
If both judges involved in the communication agree, the parties or
their representative may be permitted to speak during the
communication.
If the judges involved in the communication agree to permit one
party or representative to speak, then the other party or
representative should be permitted a chance to answer.
Consideration may be given to allow counsel to submit a question
or provide information relating to the proposed communication.
Because of the necessity for clarity and precision, where there are
language differences, and where interpretation is needed,
professional interpreters are preferred.
Consensus or Arrangement
a)
Confirmation of any consensus or arrangements reached as
between judges should be confirmed in writing and made available
to the parties.
B.
Nature of the request to communicate
1.
Is there a question of foreign (interprovincial or international) law or
procedure to discuss with a judge in the foreign jurisdiction?
a)
b)
c)
Is there a case pending before the foreign court?
If so, is there a need to speak with the judge who actually handled
portions of the case, or will any judge in the foreign jurisdiction
suffice?
If no case is pending, consider the difficulty in finding a judge with
whom to communicate in the foreign jurisdiction. In this instance,
if there is a Network judge consider contacting that judge.
2.
Avoid discussions with the foreign judge about the merits of the case.
3.
Can the question be answered or dealt with by the Central Authority in
your jurisdiction or the Central Authority in the foreign jurisdiction? If it
can, consider having the Central Authority address the issue or obtain the
information.
4.
Specific examples of questions of foreign law or procedure that may arise
include:
a)
b)
c)
d)
e)
f)
g)
h)
scheduling of the case in the foreign jurisdiction:
i)
making of interim orders, e.g. support, protection
orders;
ii)
availability of expedited hearings;
availability of protective orders for the child or other parent;
can the foreign court accept and enforce undertakings offered by
the parties in your jurisdiction;
is the foreign court willing to entertain a mirror order (same order
in both jurisdictions) if the parties are in agreement;
are criminal charges pending in the foreign jurisdiction against an
abducting parent;
can the abducting parent return to the foreign jurisdiction if an
order is made returning the child;
what services are available to the family or the child upon the
return of the child;
logistics of returning the child.
C.
Setting up the communication and initiating the contact
1.
Where appropriate, invite the parties or their representative to make
submissions as to whether there should be court-to-court communications
and the nature of the communications;
2.
If the initiating judge decides such communication should be made in
interprovincial or territorial matters they may do so by:
a)
b)
3.
contacting the judge directly; or
contacting the Network judge in their jurisdiction who will assist in
facilitating communication between the initiating judge and the
appropriate judge in the other jurisdiction.
If it is an international matter, the initiating judge should consider
contacting either their local Network judge or one of the two Canadian
27
International Liaison judges who will assist in facilitating communication between
the initiating judge and the appropriate judge in the other country.
4.
The initial communication should be in writing (fax or e-mail) and should
identify:
a)
b)
c)
d)
e)
f)
g)
the initiating judge;
the nature of the case (with due regard to confidentiality concerns);
the issue on which communication is sought;
whether further documents should be exchanged;
when the communication should occur (with due regard to time
differences);
any specific questions which the initiating judge would like answered;
any other pertinent matters.
5.
Unless the initiating judge decides otherwise, all written communications should
be copied to the parties or their representative.
6.
If the other jurisdiction is not English/French speaking, the initiating judge
should make their best efforts to have the initial communication appropriately
translated.
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28
APPENDIX “D”
How to Communicate with a Judge in Another Jurisdiction – Canadian Network of
Contact Judges Recommendations
– April 2011
How to communicate with a Judge in Another Jurisdiction
This document explains the system of Canadian Network Judges and Liaison Judges
who oversee cross-border child abduction cases. It then recommends a step by step
procedure to be followed, involving the Network and Liaison Judges, to facilitate a
judicial communication between: a Canadian Judge and a Judge in the United States,
(using Arizona as an example); a Judge in another country that is a Hague signatory,
(using Australia as an example); and a Judge in one Canadian Province or Territory and
a Judge in another Canadian Province or Territory (using Manitoba and British
Columbia as examples).
1. Network and Liaison Judges
For federally appointed judges, each province and territory has a Network Judge, a
judge designated to be responsible for overseeing cross-border child abduction cases.
The Network Judge is part of the Canadian Network of Contact Judges. The Canadian
Network is chaired by Manitoba Court of Queen’s Bench Justice Robyn Diamond.
For provincially appointed judges, there is a similar Network, and many provinces and
territories have appointed Network Judges. The Ontario Court of Justice has appointed
Network Judges in a number of regions.
Canada also has two international liaison judges who are part of the International
Network of Contact Judges. They are responsible for liaisoning between Canada and
other countries. Justice Diamond is responsible for the common law provinces and
territories, and Justice Jacques Chamberland, a judge of the Quebec Court of Appeal, is
responsible for Quebec.
u/diamond/network/relocation/Washington/2012
29
2. Method of Communication
Initial requests for communications should be made by email.
The request should provide:
-the name of the presiding Canadian Judge;
-the Canadian Court, and its location;
-the email address of the presiding Canadian Judge;
-the name of the parties;
-the action number;
-the nature of the case;
-any information the presiding Canadian Judge has about the proceedings in the
other jurisdiction; and
-the purpose of the request for judicial communication.
3. Outgoing Calls – A Canadian Judge Contacting a Judge in Another
Jurisdiction
a. Canadian Judge to an Arizona Judge
i. The Judge should send the email request to the Court’s Network Judge.
ii. The Network Judge will forward the request to the International Liaison
Judge, (Justice Robyn Diamond for common law provinces and territories and
Justice Jacques Chamberland for Quebec)
iii. The International Liaison Judge will contact the American Network Judges,
and one of them will communicate with Arizona and locate the Court and
Judge.
iv. If there is no file yet, the American Network Judge will determine who, in
Arizona, should respond to the call.
v. The Arizona Judge will then contact the Canadian Judge.
b. Canadian Judge to an Australian Judge
i. The Judge should send the email request to the Court’s Network Judge.
ii. The Network Judge will forward the request to the International Liaison Judge,
(Justice Robyn Diamond for common law provinces and territories and Justice
Jacques Chamberland for Quebec.)
iii. Justice Diamond will contact the Australian International Liaison Judge, Chief
Justice Diana Bryant, who will locate the Court and Judge.
iv. If there is no file yet, Chief Justice Byrant will determine who, in Australia, should
respond to the call.
v. The Australian Judge will then contact the Canadian Judge.
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30
c. Manitoba Judge to a British Columbia Judge
i. The Manitoba Judge should email the Court’s Network Judge.
ii. If the Court in British Columbia is known, the Manitoba Network Judge will
forward the email request to that Court’s Network Judge, who will forward it to the
British Columbia judge hearing the case.
iii. If the Court in British Columbia is not known, the Manitoba Network Judge will
contact his/her equivalent in British Columbia, who will determine which Court is
the correct court and who is dealing with the case, and direct the email
accordingly.
iv. If there is no file yet, the Network Judge in British Columbia, will determine who
should respond to the call.
v. The British Columbia Judge will then contact the Manitoba Judge.
4. Incoming Calls – A Judge in another Jurisdiction Wanting to Communicate
with a Manitoba Judge
All incoming requests, whether from another province or territory, or another country,
should come to a judge of a court in a Canadian province or territory through that
Court’s Network Judge. Once the judge receives such a request, he or she can contact
the judge in the other jurisdiction directly.
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