HC/E/CA 991
CANADA
Supreme Court of British Columbia
First Instance
UNITED STATES OF AMERICA
CANADA
10 January 2008
Final
Procedural Matters
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On 8 January 2008 the Oregon Circuit Court sought to initiate direct communication with the Supreme Court of British Colombia. This was in accordance with the Oregon rules which provided that upon being informed of a child custody proceeding having been commenced in another court, the relevant Oregon court shall communicate with the foreign court to resolve the emergency, protect the safety of the parties and the child and determine a period for the duration of the temporary order.
The Oregon judge wished to raise two matters: the determination of the duration of the temporary order; and the proper jurisdiction for matters relating to the child. On 10 January a joint, open hearing was convened involving both courts. Mother and father both had representation before the Oregon judge, father only in front of the British Columbia judge.
During the joint hearing the parties agreed that the Supreme Court of British Columbia was the appropriate jurisdiction in which to decide the issue of custody and to a voluntary return of the child. Equally they reached agreement on the interim custody of their son. In her judgment in the Supreme Court of British Columbia, Justice Martinson further considered practical and policy issues surrounding direct judicial communication from both Canadian and international perspectives.
She noted that both the 4th and 5th Meeting of the Special Commission to review the operation of the 1980 Hague Convention had approved of the practice and had issued recommendations including safeguards that might be adopted. These had been approved by the Canadian judiciary.
Consequently, there was a recognition that judicial communication should not be for the purpose of considering the merits of a case. Rather it was to provide judges with the relevant information needed to make informed decisions on matters such as jurisdiction, including the location of the place of habitual residence and in obtaining information about the custody laws of the other jurisdiction.
Communication could also make case management more efficient, thereby facilitating expedited procedures to return the child to his or her habitual residence, where appropriate. It could also assist in obtaining, when ordered, the prompt and safe return of the child, such as by the use of undertakings to be done by the parents and the making of identical orders in each jurisdiction to ensure enforcement (mirror orders). Furthermore communication could be useful in encouraging a parent to agree to voluntarily return a child and in encouraging a more amicable resolution of the parents' dispute.
By communicating directly between judges, courts were fulfilling their mandate under the Hague Convention to co-operate to facilitate the prompt and safe return of children. Such co-operation would send an important message to potential child abductors that courts would not tolerate child abduction and, when appropriate, would act immediately to restore children to the country from which they had been wrongfully removed or retained.
Direct judicial communication did not interfere with the judicial independence of either court involved. The communication did not involve a judge of one country making decisions which were within the jurisdiction of the other judge. Rather, it led to the making of fair, impartial, timely, and well-informed decisions by the judge who should be making the decision, applying the laws of that judge's jurisdiction.
Justice Martinson further considered several issues of concern pertaining to direct judicial communication. She noted that the provision of translation facilities could assist in overcoming linguistic challenges, whilst appropriate explanation of legal terms as well as differences in legal systems could minimise the risk of misunderstanding between judges.
The security of the process could be guaranteed by channelling communication through members of the International Hague Network of Judges and any risk of misunderstanding by the parties could be limited by judges explaining the nature of the communication to them directly or via their counsel.
General "Guidelines Applicable to Court to Court Communication in Cross-Border Cases" ("Cross-Border Guidelines") were approved by the British Columbia Supreme Court in 2004: http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions_and_notices/General/Guidelines%20Cross-Border%20Cases.pdf
The present decision notes that in April 2007 the Canadian Judicial Council formally approved the establishment of the Network of Canadian Contact Judges (trial level), representing every provincial and territorial Superior Court in Canada, and that a comparable network of Canadian Provincial Courts had been approved by the Canadian Association of Chief Justices.
The Fourth Special Commission to review the operation of the 1980 Child Abduction Convention in 2001 recommended that Contracting States actively encourage international judicial co-operation. This view was repeated at the Fifth Special Commission in 2006.
Where this co-operation has manifested itself in the form of direct communication between judges, it has been noted that the procedural standards and safeguards of the forum should be respected. The latter was acknowledged in the "Emerging Guidance and General Principles for Judicial Communications" (Prel. Doc. No 3A for the attention of the Special Commission of June 2011, revised in July 2012) where it is stated in Principles 6.1 to 6.5 that:
"6.1 Every judge engaging in direct judicial communications must respect the law of his or her own jurisdiction.
6.2 When communicating, each judge seized should maintain his or her independence in reaching his or her own decision on the matter at issue.
6.3 Communications must not compromise the independence of the judge seized in reaching his or her own decision on the matter at issue.
6.4 In Contracting States in which direct judicial communications are practised, the following are commonly accepted procedural safeguards:
6.5 Nothing in these commonly accepted procedural safeguards prevents a judge from following rules of domestic law or practices which allow greater latitude."
Direct judicial co-operation has been employed in several jurisdictions:
Canada
Y.D. v. J.B., [1996] R.D.F. 753 (Que.C.A.) [INCADAT Reference: HC/E/CA/ 369]
Hoole v. Hoole, 2008 BCSC 1248 [INCADAT Reference: HC/E/CA/ 991]
Adkins v. Adkins, 2009 BCSC 337 [INCADAT Reference: HC/E/CA 1108]
In this case, as a result of the direct communication, the Convention proceedings were adjourned pending an adjudication of the substantive custody issue by the competent Court of the child's State of habitual residence in Nevada, United States of America.
United Kingdom - England and Wales
Re M. and J. (Abduction) (International Judicial Collaboration) [1999] 3 FCR 721 [INCADAT Reference: HC/E/UKe 266]
Re A. (Custody Decision after Maltese Non-Return Order) [2006] EWHC 3397, [2007] 1 FLR 1923 [INCADAT Reference: HC/E/UKe 883]
United Kingdom - Northern Ireland
RA v DA [2012] NIFam 9 [INCADAT Reference: HC/E/UKn 1197]
United States of America
Panazatou v. Pantazatos, No. FA 960713571S (Conn. Super. Ct. Sept. 24, 1997) [INCADAT Reference: HC/E/USs 97]
Special provision is made for judicial communication in the Uniform Child-Custody Jurisdiction and Enforcement Act (1997), s. 110, see:
http://www.uniformlaws.org/shared/docs/child_custody_jurisdiction/uccjea_final_97.pdf
Criticism of the practice of direct judicial co-operation has been raised by the High Court of the Hong Kong Special Administrative Region - Court of Appeal in D. v. G. [2001] 1179 HKCU 1 [INCADAT Reference: HC/E/HK 595].
A study of all aspects of international judicial co-operation was undertaken by Philippe Lortie, Permanent Bureau of the Hague Conference on Private International Law, first in 2002: "Practical Mechanisms for Facilitating Direct International Judicial Communications in the Context of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Preliminary Report", Preliminary Document No 6 of August 2002 for the attention of the Special Commission of September / October 2002.
In 2006, Philippe Lortie prepared the "Report on Judicial Communications in Relation to International Child Protection", Preliminary Document No 8 of October 2006 for the attention of the Fifth Meeting of the Special Commission to review the operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (30 October - 9 November 2006).
(See < www.hcch.net >, under "Child Abduction Section" then "Special Commission meetings on the practical operation of the Convention" and "Preliminary Documents".)
In 2013, the Permanent Bureau of the Hague Conference published the brochure "Direct Judicial Communications - 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". (See < www.hcch.net >, under "Publications", then "Brochures".)
For other commentaries see:
Hague Conference "The Judges' Newsletter" Volume IV/Summer 2002 and Volume XV/Autumn 2009. (See < www.hcch.net >, under "Child Abduction Section" then "Judges' Newsletter".)
R. Moglove Diamond, "Canadian Initiatives Respecting the Handling of Hague Abduction Convention Cases" (2008) 50 R.F.L. (6th) 275.
(June 2014)