Innovative New International Family Law Arbitration Scheme Launched in Fiji

A new and innovative arbitration scheme has been launched today (4 September 2017) at the 16th Australian Family Lawyers Conference, held in Fiji.

Prof. Patrick Parkinson and David Hodson, two of the world’s leading international family lawyers, launched ‘The International Family Law Arbitration Scheme’ (IFLAS).  Designed to help international families it will avoid long and expensive forum litigation and will help couples work out where any family differences should be resolved by ascertaining with which country they have the closest connection.

Its website is now live: https://internationalfamilyarbitration.com  and has details of the initial arbitrators working in the Scheme and the digital forms for participants to start the process.

David Hodson co-founder of the Scheme explained:

This new initiative is exciting for two reasons.  By using arbitration, with an arbitrator from a country with which neither couple have any connection a couple can more quickly, more cheaply and more satisfactorily resolve differences. Secondly it’s fairer. Currently when a couple have connections with more than one country there can be a dispute about which country will resolve any differences.  This forum dispute is decided in, and by the law of, one of the two countries. This is perceived as an unfair advantage to one of the parties. This scheme produces a mutually satisfactory outcome.

IFLAS will use arbitration which is an out of court resolution system, sometimes known as private judging.  Arbitrators are trained to adjudicate and resolve disputes.  Many are retired or part-time judges.  All IFLAS arbitrators are experienced lawyers used to dealing with international family law disputes.

Amongst the benefits of using an arbitration scheme like IFLAS are; people can choose their preferred arbitrator for their dispute, it can be undertaken very quickly, it is flexible in the way the matter is conducted such as using digital technology instead of actual hearings, it is less adversarial approach and is completely private and confidential.

The criteria for arbitration is which country has the closest connection with the couple and the family.  This is similar to the law used in many countries around the world.  The arbitrator would consider all of the circumstances and the various connections.  The arbitrators have the benefit of research of a leading international family law firm on the forum laws across many countries in respect of closest connection.

Patrick Parkinson co-founder of the Scheme commented:

The use of an arbitrator from a third country is a key part of the Scheme.  At the moment, forum disputes are heavily skewed to whichever party is able to manoeuvre the forum dispute to be heard in their country.  Having a third country arbitrator is like having an umpire in a sports event who is not from either of the competing countries.  This is impossible under any national justice system, but for the first time is possible with IFLAS.

The Scheme will start up the arbitration including arranging an arbitrator as required and will result in an arbitration decision.  The parties would agree not to pursue any other court proceedings pending resolution of the arbitration and to abide by the outcome.  It is anticipated that national court schemes will adjourn proceedings whilst the forum arbitration is underway.

Crucial to the scheme is an online questionnaire, which parties can access on the IFLAS website, intended to elicit all the relevant facts for forum dispute.  Drawn up by leading practitioners, it will help the arbitrator resolve the closest connection.  By using digital technology to enhance the arbitration process, it will be quicker, cheaper and more open and transparent than present justice systems.

IFLAS has already attracted a number of senior lawyers including retired and part-time judges who are willing to be arbitrators under the Scheme.

For further details contact David Hodson on dh@davidhodson.com and Patrick Parkinson on patrick.parkinson@sydney.edu.au or for press enquiries contact madeleine.gordon@iflg.uk.com or +44 (0) 7837114133.

David Hodson OBE MICArb is an English solicitor, mediator, arbitrator, an Australian qualified solicitor and barrister and a part time deputy family court judge in London (DDJ at the CFC).  He is a co-founding partner of The International Family Law Group LLP, a specialist practice in Covent Garden, London, (www.iflg.uk.com) serving the interests of international families and their children.  He is editor and a primary author of The International Family Law Practice (Jordans 5th edition 2016), England’s leading textbook on international family law.  He is visiting Professor at the University of Law.  He was awarded the OBE for services to international family law.

Patrick Parkinson AM is a Professor of Law at the University of Sydney and the Immediate Past President of the International Society of Family Law. He is admitted to practice in Australia as a solicitor and is also a qualified mediator and arbitrator. He is the author of numerous books including Australian Family Law in Context (6th ed, 2015), Tradition and Change in Australian Law (5th ed, 2013), Family Law and the Indissolubility of Parenthood (2011), The Voice of a Child in Family Law Disputes (with Judy Cashmore, 2008).

Madeleine Gordon

The International Family Law Group LLP

www.iflg.uk.com

 

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Talaq divorce ruled illegal and unconstitutional in India by India’s Supreme Court / Le divorce Talaq jugé illégal et inconstitutionnel en Inde par la Cour suprême de l’Inde

India is one of only a few countries where a Muslim man can divorce his wife in minutes by just saying to her three times…… “I divorce you, I divorce you, I divorce you” – sometimes even by social media or text.

The cases in India were filed by five Muslim women who had been divorced in this way and two rights groups. A 3-2 majority verdict in the Indian Supreme Court called the practice “un-Islamic”.

The Indian Parliament is also being lobbied to legislate on the issue to make the practice illegal in India (as it already now is in Bangladesh and Pakistan).

A fuller report can be seen in the BBC website

It is extremely relevant for many couples to ascertain whether their marriages and divorces are recognised (in both the  country where they married but also any other country where they might later separate). The ramifications of not confirming your marital status can otherwise have extremely severe consequences on your legal rights. iFLG can help with such enquiries and have produced an iGuide about this.

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L’Inde est l’un des seuls pays où un homme musulman peut divorcer de sa femme en quelques minutes en lui disant trois fois … “Je divorce avec toi, je divorce avec toi, je divorce avec toi” – parfois même par les médias sociaux ou un texto.

Les affaires en Inde ont été portées par cinq femmes musulmanes qui avaient été divorcées de cette façon et deux groupes de défense des droits des femmes. Un verdict de majorité 3-2 dans la Cour suprême indienne a qualifié la pratique “non-islamique”.

Le Parlement indien est également chargé de légiférer sur la question pour rendre illégale la pratique en Inde (comme c’est déjà le cas au Bangladesh et au Pakistan).

Un rapport plus complet peut être consulté sur le site Web de la BBC

C’est extrêmement important pour de nombreux couples de vérifier si leurs mariages et divorces sont reconnus (dans le pays où ils se sont mariés, mais aussi dans tout autre pays où ils pourraient ensuite se séparer). Les ramifications de ne pas confirmer votre état civil peuvent avoir des conséquences extrêmement graves sur vos droits légaux. iFLG peut aider ces recherches et avoir produit un iGuide à ce sujet.

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Spanish abduction case receives huge media attention

A parental child abduction case has caused a social media frenzy in Spain. The Spanish mother, Juana Rivas wrongfully removed the children aged 3 and 11 in May 2016 from their home in Italy where they lived together with her partner, the children’s father. She is now refusing to return the children following a Return Order made by the Spanish court, citing fears that she and the children will be exposed to domestic violence in the event they return to Italy.

It is understood that the father issued an application under the 1980 Hague Convention for the summary return of the children to Italy following their removal. The 1980 Hague Convention is an international convention (treaty) involving over 95 countries.  Its purpose is to secure the speedy return of abducted children.

The mother made a number of allegations of domestic violence against the father and it is has been reported that the father has a conviction for domestic violence from 2009.  However the Spanish court decided the children should return to Italy, on the basis (among other factors) of the eldest child having shown no indication of not wanting to see his father following a psychiatric evaluation.

The mother appealed the decision but her application was refused. The Court of Appeal in Spain ordered the mother to hand over the children on 26 July at an agreed location. However the mother did not turn up and it is understood that she has since gone into hiding with the children. According to www.thinkspain.com, when asked about the whereabouts of the family, the mother’s solicitor confirmed publicly that her client had vanished and that she was and was ‘unaware of what she planned to do with the children’.

The Spanish court has now ordered both parties to attend a further hearing on 8 August in order to decide how to proceed. It is unknown what the action the Spanish court will now take, however on similar facts, it is likely that the English courts would make a Collection Order in the event the mother continued to refuse to return the children to Italy. A Collection Order is used in situations where the child’s whereabouts are known but the respondent will not return the child to the applicant in breach of an order to do so.  Often the Tipstaff will collect the child and place him or her in the care of the applicant or the local authority.

This case has had huge media attention in Spain with the country overwhelmingly supporting the mother and events including mass demonstrations which have kept the story in the headlines for sometime. It has been reported by The New India Express that citizens of Spain have taken to Twitter to pledge their support with the hashtags #Juanaestaenmicasa (Juana is in my house) or #YoSoyJuana (I am Juana). A petition launched on Change.org in December 2016 has garnered more than 208,000 signatures. It is understood that even the prime minister of Spain has come out in support of the mother’s difficulties.

On the facts this is an unremarkable case, however what is interesting is how the mother’s plight, and allegations of domestic violence have become the main focus in the Spanish media. It is important to note that a parent is not permitted to make a unilateral decision to relocate with their child without the other parent’s consent even in the event they are victims of domestic violence at the hands of the other parent. Furthermore within 1980 Hague Convention proceedings the courts should not make welfare decisions but simply decide whether or not the child should be returned to the home country.

Often in these types of proceedings within the English courts, any concerns about domestic violence and the risk posed by the left behind parent are normally overcome by suitable protective measures. Such cases seldom concern the media, demonstrating the very different attitudes Spain and England and Wales hold in respect of domestic violence in Hague Convention abduction proceedings.

 

Source : http://www.iflg.uk.com/blog/spanish-abduction-case-receives-huge-media-attention