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Chief Justice Sundaresh Menon: Paper delivered at the 18th Conference of Chief Justices of Asia and the Pacific

18TH CONFERENCE OF CHIEF JUSTICES OF ASIA AND THE PACIFIC

INTERNATIONAL FAMILY JUSTICE AS COLLABORATIVE JUSTICE
 

Abstract

The advent of globalisation, driven by new technology and the eagerness of trade and industry to expand into new markets, has ushered in a new age for family justice. Perhaps the most striking recent development has been the rise of the international family, which is a phenomenon that has engendered a number of difficult legal and social issues that cannot be addressed by any court or jurisdiction working alone. These challenges require a considered and coherent response on the international front, supported by the willingness of individual family judges to communicate and cooperate to identify and implement practical solutions.

To meet these new challenges, this paper proposes a vision of international family justice as collaborative justice. There are three aspects or phases to the proposed endeavour: (a) the articulation of common aspirations and values; (b) continuing cooperation and communication between family courts and institutions; and (c) convergence in the substantive norms and practice of international family law. The goal is to build an international system of family justice that is undergirded by a robust superstructure of procedural rules and a common understanding of those rules, and characterised by a shared commitment to a set of core values and principles as well as a readiness to communicate and cooperate with other family courts around the world.

I.        Introduction: The rise of international family justice

A.      The history of family law as a history of national laws

1. Family law has had a long history going back more than 2000 years,[1] but for much of that time, it lacked almost any international dimensions. The rules on marriage, divorce and parenthood were inextricable from the particular cultural, ethical and religious beliefs and norms held by individual communities. In the Roman state, the affairs of the family were decided by the pater familias or male head of the household, who possessed not only all religious and economic rights as the priest of the family ancestor cult and sole owner of the family property, but also the power of life and death over other family members.[2] In Europe, the Church had exclusive jurisdiction over marriage and its consequences for hundreds of years,[3] in the course of which time it developed an elaborate system of formalities for the celebration of marriage and procedures in marital causes.[4]

2. The secularisation of marriage when it came was slow, gradual and uneven. While Austria merged its marriage and civil laws in the early 19th century, it was one of only a few exceptions. In most Eastern European and Asian countries, matters relating to the family remained under religious law despite the secularisation of other areas of the law.[5] When English settlers migrated to the new colonies of North America, they brought with them the customary law that was unique to the particular regions of England they were from, rather than the common law which had general application.[6]

3. In those early years, the laws of marital property, divorce, parenthood and guardianship focused only on the needs and circumstances of the propertied classes. An example would be the English law of marriage settlement in the 17th century, which was “deeply rooted in the customs of the propertied classes”.[7] In fact, only the propertied classes had resort to the courts for the making and unmaking of marriages.[8] Similarly, in Germany, upon the introduction of the Civil Code in 1900, critics pointed out that in articulating the “private law” of the family, the legislation neglected the situation of the poor.[9] The development of family law in that era therefore tended to be uneven, prioritising the needs and circumstances of the wealthy while leaving the family arrangements of the poor largely ungoverned.

4. In the 19th century, driven largely by the rise of the modern state and the general increase in income levels and living standards brought about by the First Industrial Revolution, family law became increasingly sophisticated and applicable to all persons, parents and families. The rise of women’s rights encouraged new ideas about individual freedom and equality, which spread quickly due to vast improvements in travel made possible by the invention of the steam engine. These new ideas in turn stimulated the “principal transformative forces” affecting the articulation and development of laws on marriage, interspousal relations, divorce and parenthood.[10]

5. During this period, European colonial powers propagated their common and civil law traditions in various Asian countries. That was a legacy that persisted long after the retreat of colonial powers from the region, even as national courts and legislatures in Asia modified those received laws so as to integrate local customs into their legal codes and meet the specific needs and wants of their societies.[11] In Singapore, family law struggled to meet the multifarious demands of the different ethnic groups. In particular, the majority Chinese community agitated against the Chinese customary marriage law that was developed by the English judges in the Straits Settlement courts. Failing to understand the nuances of Chinese marriage customs, the English judges simply held that the Chinese were polygamous so that each of a man’s marriages were of equal status in law and each wife shared equally in his estate. This crude manipulation of Chinese customs so that they would fit into the framework of the common law “irked the Chinese community” greatly.[12]

6. In 1961, the Women’s Charter 1961 (2020 Rev Ed) (“the Women’s Charter”) was enacted in Singapore to consolidate existing laws on marriage, divorce, maintenance, and offences against women and girls.[13] Singapore had just obtained the right of self-government from the British, and the protection of the institutions of marriage and the family under the Women’s Charter was seen as a necessary step in the nation building exercise. As Member of Parliament Dr Lee Siew Choh observed during the parliamentary debates, the “country [was] just on the threshold of a new era and [would] need all the energy and help from all quarters – male as well as female – in the gigantic task of nation building … I will even go so far as to say that this Women’s Charter … will find, as various other charters in other parts of the world have found … a permanent monument and milestone – in the history of social struggle for the betterment of the world”.[14] The development of family law in Singapore rode the tide of political awakening, nationalism and national development that swept across much of Southeast Asia in those decades.

B.      The rise of the international family 

7. Set against this background, and the fact that movement across borders was much less a feature of societies before the growth of civil aviation in the 1960s, one can understand why family law and practice has for so much of its history been interwoven with the needs and concerns of individual communities, countries and regions, rarely straying from domestic and parochial considerations. Possibly no other area of law is as intimately intertwined with the narrative of a country’s history, economy, culture and religion as family law. For these reasons, apart from the past few decades, family law had largely developed within the silos of national jurisdictions.

8. The advent of globalisation, driven by powerful new technology and the eagerness of trade and industry to expand into new markets, has ushered in a new age for family justice. Just as the First Industrial Revolution initiated the modernisation of family law in the early 19th century, so too has the opening of markets and the widespread movement of people across borders impelled the next evolution of family law, which began in the latter half of the past century and continues apace into the present one.

9. Perhaps the most striking recent development has been the rise of the international family. The statistics bear witness to this trend. In Singapore, the proportion of marriages between a citizen and a non-resident has generally grown over the past two decades, from 23% in 2000, rising to 33% in 2005, and dipping slightly to 28% of marriages in 2019.[15] In Hong Kong, the proportion of cross-border marriages has increased dramatically from 2% in 1986 to 43% in 2006.[16] It is safe to say that familial bonds – whether between spouses or between parents and children – are increasingly tinged by international dimensions. Ease of travel has enabled entire families to relocate for work or lifestyle reasons, family members to venture abroad for higher education or job opportunities, and locals to start new families with foreigners who come to work or study.

10. At the same time, increased mobility and the consequent reconfiguration of families has generated new and difficult social issues. Migrants often leave their spouses behind especially when they move from poorer labour-exporting states to wealthier labour-importing states in search of better income streams. The increased distance between family members and their difficulties in adapting to new cultures and environments place tremendous strain on family relationships. Coupled with the fact that no-fault divorce is today available in almost all developed nations – which are frequently the countries of destination for migrant workers – increased mobility has contributed in no small way to divorce, separation and the breakdown of families.[17]

11. There can be little doubt that the growing internationality of families has coloured the development of family law, both domestically and globally. Professor Barbara Stark provides the following brief but vivid sketch of the situation:[18]

The global migrations of capital and the vast migrations of labour that have accompanied it have torn families apart, created new families, and radically changed the meaning of family. Borders have become more porous, allowing adoptees and mail order brides to join new families and women fleeing domestic violence to escape from old ones. People of different nationalities marry, have children, and divorce, not necessarily in that order. They file suits in their respective home States or third States, demanding support, custody, and property. Otherwise law-abiding parents risk jail when they try to abduct their children from foreign ex-spouses. Local laws alone cannot resolve these matters. Rather, lawyers increasingly draw on a wide range of international treaties, national laws, religious laws, and local traditions.

12. The rise of the international family and the associated legal challenges, in conjunction with the ascendancy of public international law and international human rights law since the Second World War,[19] have sparked the modern interest in international family justice. They have compelled the international legal community to seek cooperative solutions, not only through the development of a body of international family law, but also through the establishment of frameworks and fora to co-develop procedures to resolve international family disputes. My thesis in this paper is that the future of international family justice must be a collaborative future, because collaboration is the only viable strategy to deal with that unruly and growing class of family disputes that pay no heed to national boundaries.

II.       The growing internationality of family disputes

13. It is useful to begin by examining the legal implications of the rise of the international family. In my view, the increasingly international character of modern families has had two broad consequences for family justice.

14. First, it has resulted in an increase in the number of marriages in distress involving foreign spouses. Out of the divorces in Singapore between 2011 and 2018, the percentage of divorces involving marriages between two Singapore citizens has steadily declined (from 67% to 59%), while divorces in marriages involving at least one spouse who is not a Singapore citizen has correspondingly increased (from 33% to 41%).[20] In the UK, the number of family disputes in which requests for cross-border judicial communication and assistance were made has grown dramatically, rising from 3 cases in 2005 to 253 in 2012.[21] The increase in the number of transnational marriages must be at least one of the reasons for these trends.

15. Second, it has generated a variety of cross-border legal issues that would not previously have arisen. Given their nature and scope, these issues are often extremely difficult to resolve, especially by the courts and institutions of a single jurisdiction working alone. Yet they threaten to cause immense harm to children, spouses, and indeed the general administration of family justice. I provide a few examples.

A.     International child abduction

16. Parental child abduction across national borders is a classic illustration of cross-border issues of this nature. Professor Nigel Lowe, a leading family law scholar, has observed that the effects of abduction on a child can be devastating and have lasting consequences.[22] Children who are abducted will suffer not only from their parents’ separation but also the trauma and confusion of being suddenly displaced from a familiar environment and their circle of friends and loved ones.[23]

17. Prior to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Child Abduction Convention”), the available legal remedies were entirely national and therefore wholly inadequate. The situation was described as a “state of international anarchy”, arising from a lack of international consensus or cooperation on parental child abduction, the lack of a reliable regime for the enforcement of family court orders made in another jurisdiction, and the prevailing notion in the common law that the paramountcy of the welfare of the child meant that foreign custody orders would not be regarded as binding.[24] The resulting state of affairs encouraged “would-be abductors who, by appropriate forum shopping, … hope[d] to take their children from one jurisdiction to another and there obtain judgment in their favour”.[25]

18. The problem has proved serious even in a small country such as Singapore. It was reported that parents who had their child abducted by their spouses found that legal processes were complex, time-consuming and costly, diplomatic channels were often slow and ineffective, and the police could do little to assist.[26] Parents often resorted to futile self-help remedies, trying to trace their children by their own efforts or hiring private investigators if they could afford it (though many could not). A large number of cases simply remained unresolved.[27]

B.     International relocation

19. The subject of international relocation involves a number of similar issues. In a typical example, following divorce, a parent wishes to return to her country of origin together with a child of the marriage, leaving behind the other parent, and makes an application to the court for the relocation of the child.[28] Applications for relocations are often challenging[29] because they “involve a binary decision – either the child stays or he goes”.[30] On the one hand, refusing to allow the relocation of a child’s primary caregiver might frustrate her plans, which might in turn affect the child’s welfare if the arrangements for the child’s education and upbringing are left in flux. It has been observed that an overly strict approach to relocation may even encourage the caregiver to unilaterally abduct the child.[31] On the other hand, allowing the caregiver to relocate with the child could prevent the child from developing a closer relationship with the other parent. While the left-behind parent may still communicate remotely with a relocated child, the child would nevertheless be deprived of the physical contact facilitative of parent-child bonding.[32]

20. It is therefore seldom easy to determine which of the two binary choices will better promote the child’s welfare. It is no wonder that the Court of Appeals of New York has opined that relocation cases “present some of the knottiest and most disturbing problems that our courts are called upon to resolve”.[33]

C.     Intercountry adoption

21. Intercountry adoption, which involves the adoption of a child from one country (typically a developing nation) by adopters living in another (typically a developed nation), has similarly increased as a result of the ease of international travel. Historically, the practice of intercountry adoption arose from an altruistic instinct – international concern for abandoned children in the aftermath of war and in countries of extreme poverty – but it has itself given rise to a multitude of social, ethical and regulatory concerns. These range from the informality of adoption procedures, the status and rights of adopted children, and the duties and responsibilities of adoptive parents, to the exploitation of vulnerable birth parents, child sale and even kidnapping.[34]

22. Intercountry adoption is thus an example of how globalisation and technology have, for better or worse, given rise to a new means by which families can be constituted, but have brought in their wake a host of difficult legal and social issues that no single jurisdiction can satisfactorily address.

D.     Parallel proceedings in family disputes

23. The increasing internationalisation of the family has also meant that family litigation has gone international, with all the attendant complexities of private international law that this entails. One of the most problematic situations in cross-border disputes is where parties commence parallel proceedings in different national courts. Generally, parallel proceedings are not only wasteful but also carry with them the risk of inconsistent judgments, which may lead to an unseemly “race to the courthouse”.[35] That is an unsatisfactory state of affairs that promotes expedience rather than justice, and often benefits the party with deeper pockets rather than the more just cause.

24. In the context of family disputes, parallel proceedings can be especially onerous. A member of a family in distress is typically poorly equipped – psychologically, emotionally and often financially – to engage in protracted and costly litigation. These constraints make it difficult if not impossible for her to defend or pursue more than one set of proceedings. Where the results of these proceedings are in conflict, the resulting uncertainty and confusion will likely be a tremendous source of frustration and intensify the animosity between the parties. The outcome may be even worse for the child, whose future may hang in the balance between conflicting decisions on relocation or custody.

25. A vivid illustration of the problem of parallel proceedings and inconsistent judgments can be found in N v K [2013] EWHC 2744 (Fam) (“N v K”). A child had been living in England with her mother for half her life. Her father applied to a Florida court for an order that the child be returned to the US. In turn, the mother applied to the UK courts for a residence order in respect of the child, and for the father to have defined contact. When the English judge attempted to make contact with the US judge with the assistance of the UK Office of International Family Justice, the US judge did not respond.

26. Without any judicial liaison having occurred, the US judge then held that the UK did not have jurisdiction over the child and ordered that the child be returned to Florida. Having received word of the US court’s ruling, the English judge made a second request for urgent judicial liaison to address the problem of the parallel proceedings but again did not receive any reply. The English judge then held that the US judge had erred and that the UK courts “undoubtedly” had jurisdiction to entertain the mother’s application. He remarked that it was “unfortunate that judicial liaison ha[d] not been achieved thus far, particularly as both parents wish[ed] for it to happen”; and that judicial liaison was “needed now more than ever; it [was] obviously unsatisfactory for there to be competing judgments in two different jurisdictions”.[36]

27. Fortunately, a different approach featured in LN v SCCM (CACV 62/2013), where the Hong Kong Court of Appeal emphasised that parallel proceedings in matters concerning the family, particularly where children are involved, should be avoided as far as possible. In that case, the Singapore court had granted the divorce and made orders relating to the welfare of the children. The mother then applied to the Hong Kong court for permission to educate the children in the US instead of Hong Kong, where the children had been living. The father applied for a stay of the Hong Kong proceedings but failed. On appeal, the Court of Appeal granted the stay on the basis that it was “abundantly clear that all issues concerning the children should be decided by the Court of one jurisdiction rather than have the same (or different issues) being decided by the Courts in two different jurisdictions”.[37] It reasoned that “[c]onflicting decisions on how the children are to be raised cannot be in the interests of the children”, and thus “the undesirability of multiplicity of proceedings should preclude Hong Kong from assuming jurisdiction”.[38]

28. Parallel proceedings clearly have the potential to cause friction even between courts. The remarks of the English judge in N v K provide clear evidence of such tension. Indeed, family judges across different jurisdictions have acknowledged that parallel proceedings have given rise to the risk of misunderstandings arising from differences in legal languages and procedural rules, unnecessary speculation about different “jurisdictional cultures”, and pointless mutual reproaches.[39] All of this will erode mutual trust and confidence between family courts and undermine the basis for future cooperation.

29. In exceptional cases, however, such as where parallel proceedings involve distinct legal issues that cannot be appropriately resolved by the courts of one jurisdiction, parallel proceedings may be legitimate and, indeed, unavoidable. That was the case in VEW v VEV [2022] SGCA 34 ("VEW”). In VEW, upon granting a divorce, a Singapore court held that a property located in London (“the London Property”) was not a matrimonial asset liable to be divided by the court in distributing the matrimonial assets. The appellant then brought a claim in the UK under Part III of the Matrimonial and Family Proceedings Act 1984 (c 42) (UK) (“MFPA”) for financial relief consequent to an overseas divorce centring on the London Property. The respondent sought an anti-suit injunction in Singapore to prevent the appellant from continuing with the English proceedings, on the basis that those proceedings amounted to re-litigation of matters that had been decided by the Singapore court. On appeal, the Court of Appeal set aside the anti-suit injunction that had been granted at first instance. The Court held that the English proceedings did not involve the re-litigation of issues that had been decided by the Singapore court which divided the matrimonial assets, because that court had found that the London Property was not a matrimonial asset in the first place.[40] Further, in bringing the English proceedings, the appellant was seeking to vindicate a statutory right of relief under the MFPA. Considerations of comity justified allowing her to pursue this relief, especially since Singapore had enacted provisions similar to Part III of the MFPA.[41]

E.     Recognition and enforcement of judgments 

30. A further area of difficulty arising from the internationality of family disputes is the recognition and enforcement of judgments and orders of foreign family courts. The consistent refusal of a court to recognise and enforce orders made by foreign family courts encourages litigants to frustrate enforcement through the simple expedient of relocation to that jurisdiction. Given the high degree of mobility of individuals today, relocation is not as burdensome as it once might have been.

31. The recognition and enforcement of maintenance orders have, in fact, long been a problem in family law. It is a longstanding rule of the common law that only final and conclusive judgments for a fixed sum may be enforced. Orders for periodical payments do not fall within this category because they may be varied. In other words, common law enforcement is only possible for lump sum payments, which constitute the minority of maintenance orders.[42] This hurdle to recognition and enforcement erodes the value of maintenance orders and may leave maintenance creditors in financial difficulty. Where maintenance orders have been made in respect of children, the evasion of maintenance obligations may directly impact their upbringing and prospects.

32. The foregoing discussion drives us toward the inevitable conclusion that no single court or jurisdiction is capable of dealing with all issues relating to the family today. Cross-border judicial cooperation is no longer so much a luxury as it is a necessity. It is the only viable response to the increasingly international narrative of family justice.

III.      The future of the international system of family justice

33. In order to meet the challenges brought about by the rise of the international family, I suggest that family courts around the world must move in the direction of collaboration. These are not issues that can be meaningfully addressed by simple adjustments to domestic law or unilateral efforts on the part of national courts or enforcement agencies. They require a considered and coherent response on the international front, supported by the willingness of individual family judges to communicate and work with each other to identify and implement practical solutions.

34. In a sense, the use of a collaborative approach is not new to family justice. As is further discussed below,[43] many family courts around the world now recognise that the unique needs and complexities of family law require the participation and expertise of a diverse group of professionals, working together with family judges and practitioners. Family disputes call not only for the delivery of substantive and procedural justice, but also restorative and therapeutic justice ("TJ”); and such outcomes are more effectively delivered by a “cooperative system of family law litigation”,[44] within which a multidisciplinary team of professionals – consisting of family judges, practitioners, counsellors, child psychologists, mediators, academics, social scientists, policy-makers, and court staff – lend their expertise and experience to address particular aspects of the family dispute.[45]

35. I suggest that although the rise of the international family has brought about a host of associated new challenges, the approach that we require is in fact the same at its core. Just as collaboration between the family courts, lawyers and a team of allied professionals is the answer to the multifaceted nature of family disputes, so too is collaboration the key to addressing the new challenges brought forth by the growing internationality of family disputes. To the list of participants in the cooperative enterprise to achieve family justice that I have just described, we must now add family judges and enforcement agencies abroad.

36. I therefore propose that we embrace a vision of international family justice as collaborative justice, and advance together in that direction. There are three aspects to this vision: (a) the articulation of common aspirations and values; (b) continuing cooperation, communication and agreement between family courts and institutions; and (c) convergence in the substantive norms and practice of international family law. These can perhaps be seen as three broad parts or phases in the future of the international system of family justice. I suggest that we are well on our way to accomplishing the first; the second is an ongoing endeavour in which we have done much good work; but the third will require our sustained commitment and attention, both now and well into the future. I will elaborate on each of these parts.

IV.     Common aspirations and values

37. It is critical that we begin by identifying common goals, values and norms governing the model of international family justice that we aim to build. These will give direction to our efforts and enable us to create consensus on its nature and ideals. A set of common aspirations and values will therefore lay the foundations for the project and guide those who will labour on it beyond our time.

38. In this vein, it is heartening to note that there is already much common ground in conceptions of family justice around the world today. In particular, there is agreement on the following key tenets, which should continue to underpin the international system of family justice that we strive to build.

A.     The family as a basic social institution

39. The principle that the family is a basic social institution that is worthy of the state’s protection is perhaps the raison d’être for all systems of family law. It is enshrined in Article 16.3 of the Universal Declaration of Human Rights, which states that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State”.[46] That said, the fact that the dissolution of the family unit may prove to be inevitable and, indeed, beneficial has been recognised in virtually all national systems of family justice, which recognise the irretrievable breakdown of marriage as a ground for divorce.[47] The importance of the family unit to society, as well as the unavoidability of its breakup in certain circumstances, are therefore both subjects of international consensus.

B.     The centrality of the welfare of the child

40. The United Nations Convention on the Rights of the Child (“UNCRC”) pronounces that in “all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.[48] Contracting states have a duty to ensure that the child is accorded such protection and care as is necessary for her well-being.[49] Since its enactment in 1989, the UNCRC has achieved near universal acceptance, having been ratified by 196 countries (with only one country having yet to ratify).[50] The rules and obligations contained in the UNCRC therefore come as close to universal norms as might be possible in this day and age.

41. The paramountcy of the welfare and interest of children is also enshrined in legislation around the world.[51] In virtually all societies, the “best interests” test is now the yardstick used in every matter affecting the child, transcending the common/civil law divide.[52] This has led to a general recognition that the child should be afforded an opportunity to be heard in proceedings affecting her, since this is a key aspect of promoting her best interests.[53]

C.     The importance of parental responsibility

42. Article 18(1) of the UNCRC prescribes parental responsibility as the primary method for the upbringing and development of the child, and imposes an obligation on contracting states to promote joint parenting.[54] According to Professor Leong Wai Kum, a consequence of the near universal affirmation of the UNCRC is that “parental responsibility is now the normal expression within all laws regulating the relationship between parents and their child”.[55] In the UK, the Children Act 1989 (c 41) introduced the philosophy that parental responsibility should remain unaffected by separation, subject to any orders to the contrary by the court. In Germany, the Gesetz zur Reform des Kindschaftrechtes amended the Civil Code in 1997 to establish that joint parental responsibility subsists both during marriage and after separation.[56] And, while Japan currently only permits sole custody, a subcommittee at the Ministry of Justice has decided to propose introducing a joint custody system for divorced couples with children into the Civil Code.[57]

D.     The need for a nuanced and multidisciplinary approach to family justice

43. As alluded to earlier,[58] there is a growing acceptance amongst family courts that family disputes have a unique character and require a nuanced response that differs from other areas of legal practice. Many jurisdictions now recognise that family disputes are primarily relationship problems that require therapeutic intervention.[59] This has had two main implications for the resolution of family disputes. First, the adversarial model of litigation in common law jurisdictions has been supplanted by or at least is closely linked to mediation, which has become the favoured first option for resolving most family disputes. For example, in Australia, Family Relationship Centres in urban and regional communities offer free or heavily subsidised mediation, assist in the education and support of parents going through separation, and help to connect them to post-separation services.[60] Second, many jurisdictions now adopt a multidisciplinary approach incorporating the expertise of counsellors, psychologists and social workers in resolving family disputes.[61] For example, in the UK, the Children and Family Court Advisory and Support Service (CAFCASS) brings together court welfare officers, social workers, lawyers, paediatricians and psychologists to represent children in family disputes and advise the court on their best interests.[62]

44. In Singapore, mediation and multidisciplinary mechanisms like counselling had been incorporated into the family justice system since the 1990s.[63] But in 2020, our Family Justice Courts took the significant step of formally adopting the philosophy of TJ for our family justice system. In essence, TJ is a guiding ethos for family justice which has three main themes. It requires family justice to be (a) holistic, in addressing both legal issues and their underlying non-legal causes, (b) restorative, in promoting the repair of relationships and (c) forward-looking, in encouraging parties to focus on their shared futures rather than their painful past.[64] Since 2020, our Family Justice Courts have adopted several procedures to advance TJ, including the following three initiatives.[65] First, we have piloted Multi-Disciplinary TJ Teams of judges, mediators and counsellors who work together to resolve high needs or high conflict divorce cases. Second, we have established a Panel of Therapeutic Specialists comprising mental health and social science professionals, to provide targeted therapeutic assistance to parties who require such services. And finally, the Family Justice Courts have developed training programmes for both judges and lawyers focused on TJ practices and techniques.

45. In summary, this brief survey of the aspirations and values of family justice systems reveals an impressive span of common ground upon which we can build an international system of family justice that can be embraced across national borders. Indeed, within Southeast Asia, the Council of Association of Southeast Asian Nations ("ASEAN”) Chief Justices (“CACJ”) Working Group on Cross-Border Disputes Involving Children (“CBDIC WG”) has made substantial progress in developing a common set of values, aspirations and principles for ASEAN courts in the resolution of cross-border disputes involving children (incorporating some of the aforementioned values), and has also adopted a non-binding Code of Ethics for Mediators encompassing aspired values and standards for the mediation of such disputes.[66] This is not to say that the principles and practice of family law are identical across jurisdictions. Nor will they ever be so. But these shared aspirations, values and principles are evidence that differences in national approaches should not pose an insuperable barrier to collaboration.

V.       Cooperation, agreement and communication

46. I move to the second aspect of the shared vision that I described earlier, which is the need for continued collaboration, agreement and communication between family courts and all other actors involved in the endeavour of family justice. This is the stage at which the common goals, values and aspirations identified earlier can be translated into reality. I suggest that while the global community has made important steps in the right direction, it is essential that we not only maintain but increase our efforts because collaboration, agreement and communication are the only means by which we can resolve the difficult problems that have sprung from the internationality of modern family disputes.

A.     Cross-border cooperation and agreements

47. I will elaborate with reference to two of the common problems discussed earlier: (a) the mutual recognition and enforcement of judgments; and (b) transnational problems involving the family and child. These are examples of problems that can only be satisfactorily addressed through robust cross-border cooperation organised and implemented in a systematic manner, and for this reason international agreements regulating the conduct of such cooperation are particularly useful. These agreements must, however, be supplemented by the active involvement of and communication between judges who are committed to working out practical solutions that give effect to the aims of the agreements. I will elaborate on the importance of effective judicial communication a little later.

(1) Frameworks for the mutual recognition and enforcement of judgments

48. International frameworks for the mutual recognition and enforcement of judgments and orders in family matters, such as the Child Abduction Convention and the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (“the Child Protection Convention”), can be regarded as the foundation of any sustainable attempt at cross-border judicial cooperation in resolving international family disputes. That is so for three broad reasons.

49. First, such frameworks promote the application of a more principled and context-appropriate analysis to conflict of laws issues in family disputes, because these frameworks are often prepared with the unique context of family justice in mind. For instance, it has been observed that the antiquated common law rules on recognition and enforcement were drawn up at a time “when, presumably, international family law issues were not at the forefront of the drafters’ minds”.[67] Those rules were instead influenced by the ancient theory of the sovereign as parens patriae, under which the court would only make orders for the welfare of a child if that child were either a national of or domiciled in the country in which the court was situated. However, these rules are less appropriate in an age where children and their parents are able to relocate with relative ease.[68] It is therefore important that we modernise these rules and ensure that they incorporate the specific values and ideals of family law – in particular, the need to promote the best interests of the child.

50. There is growing consensus that giving presumptive weight to an order made by a court of the child’s habitual residence would reflect such an approach, because the courts of the child’s habitual residence are ordinarily best-placed to decide what would promote the child’s welfare.[69] This has paved the way for the introduction of the Child Protection Convention in 1996.

51. The Child Protection Convention, which has 54 contracting states, holistically addresses matters concerning jurisdiction, applicable law, and the recognition and enforcement of protective measures for the person and property of a child in cross-border situations. Under Article 5(1) of the Convention, the State of the child’s habitual residence will ordinarily have preeminent jurisdiction to deal with cases relating to the child’s welfare. Orders made by a State exercising jurisdiction will be automatically recognised or enforced in other contracting states, and refused only on limited grounds.[70] It therefore aligns the bases of jurisdiction and enforcement in all contracting states.

52. Second, where there is clarity as to the preeminent jurisdiction in a potentially multi-jurisdictional dispute, the incentive for parties to forum shop in order to obtain perceived advantages will be reduced, if not removed altogether. Parties will realise that there is nothing to be gained in commencing proceedings in a different jurisdiction since a foreign court will recognise and respect the jurisdiction of a court that is, under the agreed rules, better placed to decide the family issue. This also provides a measure of certainty which is important in international family disputes.

53. Third, and crucially, these frameworks provide a solution to the problem of parties evading enforcement by moving to another country, at least where the destination is also a contracting state. In such circumstances, the orders made in one contracting state would be presumptively enforceable in the court of another contracting state. For example, in Singapore, the Maintenance Orders (Reciprocal Enforcement) Act 1975 (2020 Rev Ed) (“MO(RE)A”) was enacted to provide a statutory basis for the reciprocal enforcement of maintenance orders, inspired by similar legislation in the UK, Australia and New Zealand. It overcomes the shortcomings of common law rules on foreign maintenance orders that I have described above. The MO(RE)A permits the enforcement of maintenance orders made in reciprocating countries – including the UK, New Zealand, Hong Kong, Australia, Brunei, India and Malaysia – against a payer residing in Singapore.[71] Such orders will become enforceable in Singapore upon registration,[72] and the payer will then be required to make payments through the Official Assignee. Correspondingly, the MO(RE)A enables a party in Singapore to apply for, vary and enforce maintenance orders made by a Singapore court against a party residing in a reciprocating country.[73] These arrangements ensure the efficacy of maintenance orders across borders.

(2) Transnational problems involving the family and child

54. There has been a sustained and somewhat successful international commitment to tackle the problem of parental child abduction. Central to these efforts is the Child Abduction Convention described earlier.

55. The primary advantage of the Child Abduction Convention is that a contracting state gains the assistance of the global community to obtain the return of abducted children.[74] The aim of the Convention is to return an abducted child to the jurisdiction in which he or she has been habitually resident, which is assumed to be the jurisdiction best placed to decide all issues of custody and care.[75] The court of the country to which the child has been brought is concerned, subject only to limited exceptions,[76] with the return of the child to her country of habitual residence from which she was first abducted. In other words, the former court must place its trust in the latter court to make the appropriate orders to promote the welfare of the abducted child.[77] John Waite J has perceptively observed that the Child Abduction Convention operates on the basis of mutual trust in the competence and commitment of the courts of contracting states to promote the aims of the Convention: “Its underlying assumption is that the courts of all its signatory countries are equally capable of ensuring a fair hearing to the parties, and a skilled and humane evaluation of the issues of child welfare involved”.[78]

56. As of August 2022, there were 101 contracting parties to the Child Abduction Convention. It has accordingly been hailed as one of the most successful international treaties drawn up by the Hague Conference on Private International Law (“HCCH”), and is said to have greatly improved the protection of children internationally from the harmful effects of wrongful removal or retention.[79]

57. In relation to intercountry adoption, the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“the Adoption Convention”) has been described as a “bold attempt at global control” of the practice.[80] The system created by the Adoption Convention places important responsibilities on the competent authorities of the state of origin of a child, which are required to determine (amongst other things) that (a) the child is adoptable; (b) intercountry adoption is in the child’s best interests; (c) consent has been freely given, without inducement by payment or compensation of any kind, by those persons whose consent is necessary for adoption; and (d) the child has been counselled and duly informed of the effects of the adoption, her consent obtained where required, and consideration been given to her wishes and opinions.[81] In turn, the authorities of the receiving state are to determine that the prospective adoptive parents are eligible and suited to adopt, and that the child is or will be authorised to enter and reside permanently in that state.[82]

58. Similar to the Child Abduction Convention, the Adoption Convention has proved extremely popular. It currently has 104 contracting states,[83] making it the most widely subscribed international child law instrument after the UNCRC. It is important to note that the Adoption Convention – as with the Child Abduction Convention – is a framework “based on trust and co-operation”, in which contracting states repose their confidence in other states to “ensure that the adoption process has been properly carried out and that in particular, both the child’s and the birth family’s interests have been properly safeguarded”.[84] The cooperation and communication of the designated central authorities is key to the effective operation of the framework.

59. I suggest that international agreements have already made a significant contribution to international family justice and will continue to do so. The frameworks that they establish are almost invariably developed with the benefit of expert opinion. They are crafted to achieve international consensus, and are enriched by the particular values and aspirations of family justice. However, as explained earlier, their success depends on the mutual trust, respect and understanding of family courts around the world. That must be manifested in their active engagement and communication with each other and their willingness to operate the mechanisms established by these international agreements. It is to this critical topic of communication that I now turn.

B.     Cross-border communication

60. Cross-border judicial communication is an essential element in the fair and efficient resolution of international family disputes today. Direct judicial communications may be useful both for administrative matters, such as scheduling and arranging expedited hearings; as well as more substantive inquiries, such as ascertaining the availability of protective measures for vulnerable children and spouses in another state, whether a foreign court would enforce undertakings made in the initiating court, whether the foreign court can issue a mirror order, and whether a transfer of jurisdiction is appropriate.[85] Courts that refrain from dialogue may deprive themselves of critical information and be left to speculate on the likely response of their foreign counterparts, while those that actively engage with other courts are apt to make sounder and more informed decisions. The practical benefits of direct judicial communications in ongoing cases are manifold and I identify some below.

61. To begin, cross-border communication promotes better understanding of foreign law by judges seeking to understand its implications for the case that is before them. It is particularly useful when parties adduce conflicting evidence of foreign law. An example of the value of cross-border communications to judicial decision-making can be found in the decision of the US District Court of Georgia in Pacheco Mendoza v Moreno Pascual 2016 WL 320951. There, the US judge, seeking to verify the accuracy of an applicant’s submission on the law on custody rights in Mexico, contacted the Mexican Network Judge through the International Hague Network of Judges (“IHNJ”) to request information on that subject. This ultimately helped the US judge evaluate whether an order should be made for the child’s return to Mexico. The case illustrates the contribution of cross-border judicial communications to achieving speedy and accurate outcomes in family proceedings.

62. Second, cross-border communication allows judges to seek clarification of and assuage possible concerns over procedural safeguards available in family courts abroad, and this can help prevent misunderstandings, which might erode trust and confidence between courts. An example is the decision of the Court of Queen’s Bench of Manitoba (Family Division) in Mbuyi v Ngalula 2018 MBQB 176. A father sought the return of his two children from Canada to Iowa. The mother referred to alleged incidents of domestic violence perpetrated by the father and argued that returning the children to Iowa would expose them to “physical or psychological harm or otherwise place [them] in an intolerable situation”.[86] Through a teleconference that took place in the presence of both parties and their counsel, the Iowa judge provided the Canadian judge with information on matters such as the extent to which the Iowa court could offer civil protection, the provision of assistance to individuals in situations of domestic violence, and the possible recognition in the Iowa courts of any orders that the Canadian judge might make to facilitate the return of the children to Iowa. Following the teleconference, the Canadian judge was satisfied that the Iowa court had adequate protections in place and eventually made a return order.

63. Third, such communication also helps courts and parties to avoid the wastage of time, cost and resources often associated with parallel litigation and disputes about jurisdiction. In Ibrahim v Girgis 2008 CarswellOnt 121, the mother filed for custody for her child in an Ontario court, while the father filed for custody in Florida. The Ontario judge contacted the Florida judge and discussed the “appropriate next step”. It was agreed that the Ontario court would hear the motion on the question of which state had the jurisdiction to decide custody of the child. The Florida court awaited the Ontario court’s decision on the jurisdictional question, thereby avoiding the possibility of two conflicting decisions on custody.[87] Eventually, the Ontario Court of Appeal ordered the return of the child to Florida.

64. The foregoing examples are all cases concerning the Child Abduction Convention. But other types of cross-border family proceedings would foreseeably benefit from direct judicial communications as well. Take, for instance, applications for financial relief consequential on foreign matrimonial proceedings.[88] Such applications enable a court to deal with post-divorce issues such as division of matrimonial assets or maintenance for the former spouse where a marriage has been terminated by a foreign decree in another jurisdiction. The court may grant relief even if a foreign court had done so, if it considers that the relief granted by the foreign court was inadequate or unfair. Because “[d]ue respect for comity of nations” demands that the court “be cautious not to reopen the case and hastily adjudge the foreign order to be unfair”,[89] direct judicial communications may provide a useful means by which a court ascertains why certain orders were made by the foreign court. This could assist its assessment of whether the relief ordered was adequate or unfair. The court may also directly seek clarification from the foreign court on any queries it might have on the nature or scope of the orders made.

65. Another class of proceedings which could benefit from cross-border judicial communications concerns applications for relocation of a child to another jurisdiction. The parent making a relocation application or a return application often gives an undertaking to the court to put in place certain arrangements in the event of the child’s relocation. These undertakings or conditions can be extremely detailed and may cover matters such as the relocating child’s access to the left-behind parent, schooling, accommodation and health insurance. While such undertakings provide the initiating court with some assurance that the child’s relationship with the left-behind parent will remain intact and that the relocation will not adversely impact the child, there is no easy means by which that court can ensure that these undertakings are in fact complied with or would be enforceable in the country to which the child was relocated. Direct judicial communications could assist the initiating court in satisfying itself of such concerns.

66. Further, apart from litigation, cross-border judicial communication can also enhance the resolution of family disputes through mediation. In 2021, the CACJ CBDIC WG adopted a non-binding protocol which provides for communication between designated points of liaison, where cross-border disputes involving children arise within ASEAN, to arrange the mediation of such disputes. Among other things, the points of liaison may establish whether parties agree to mediation and facilitate arrangements for mediation. Such communication can greatly enhance the efficient resolution of cross-border family disputes through mediation.

67. It is prudent to sound a note of caution here. Judges engaging in cross-border communications must remain alive to potential concerns about the security and efficiency of the process of communication, as well as any issues of natural justice that might arise, and take the necessary steps to ameliorate them. Justice Marie-Caroline Celeyron-Bouillot of the Tribunal de Grande instance de Lyon has expressed various reservations over direct judicial communications, including the security of telephone discussions, whether judges in other jurisdictions will act with the necessary speed and diligence and in the best interests of the child, whether such discussions will appear to involve prejudgment, whether differences in language could give rise to misunderstandings, whether judges can trust that their counterparts will do what they say they will do, and whether unsuccessful parties will suspect the existence of a “sort of plot between judges”.[90]

68. Not all of these risks appear to me to be equally weighty, and the answer to a good number of them will simply be that judges will have to commit to resolving cases expeditiously and actively assisting their foreign counterparts when requests for communication are made, and trust their counterparts to do the same. But it is nevertheless worth emphasising that when judges engage in cross-border communications, they must be careful to maintain their independence of judgment and ensure that the process is sufficiently transparent to alleviate any due process concerns the parties may have.

69. The significance of this observation is demonstrated in the English Court of Appeal’s decision in In re B (A Child) (Care Proceedings: Jurisdiction) [2014] 2 WLR 1384. A local authority applied for a care order in respect of a child whose mother (the appellant) was suffering from mental illness. Both mother and child were habitually resident in Sweden. Through the European Judicial Network, the English judge submitted a number of questions to a Swedish judge, including a question as to whether the Swedish court considered that it had jurisdiction over the child. The Swedish judge replied that there was no pending case involving the mother or child in Sweden and therefore the question was an abstract one and could not be answered. However, the Swedish judge went on to opine that it was “highly likely” that the English, rather than Swedish, courts had jurisdiction. Having received that reply, the English judge concluded that it was “highly probable that the [Swedish] courts do not consider that they have any current jurisdiction” and that “the [Swedish] courts, are content that [the English] court continues to deal with the case”.

70. The appellant complained that the process of judicial liaison breached her right to a fair trial under Article 6 of the European Convention of Human Rights (“ECHR”). The Court of Appeal unanimously allowed her appeal. Giving the principal judgment of the Court, McFarlane LJ held that it was “wholly inappropriate” for the English judge to ask such questions of the Swedish judge since they were the very issues that were being contested before the English court. Had the Swedish court sought to give a binding reply, “such a process would have been bound to breach the parties’ ECHR, article 6 right”. McFarlane LJ reasoned as follows (at 1400–1401):

 … In the context of liaison between judges in Europe, each will be governed by the fair trial requirements of ECHR, article 6. One only has to contemplate a requested judge issuing a determination in circumstances where they have not heard any of the parties or their advocates, they probably have not been exposed to all, or to any, of the key documentation in the case, and almost certainly, where there are no extant court proceedings, they do not have any jurisdiction to make a binding determination under their domestic law.

71. This offers us a number of lessons. First, it illustrates the importance of ensuring that judicial communication only occurs where there are sufficient measures in place to ensure due process. In particular, parties must be given an opportunity to be heard and submit on the matters which are the subject of the communication. Second, it highlights the boundaries of what can legitimately be asked of a foreign judge, and serves as a caution against substituting the opinion of a foreign judge for one’s own independent judgment. The court before which the dispute has been brought must ultimately make its own findings of fact and law, and this includes the issues of foreign law in relation to which the requested court has been asked to provide information. Anything else could entail a serious dereliction of judicial responsibility on the part of the requesting court. Third, it suggests that judges who receive requests for communication should be careful about offering opinions about the correct outcome, particularly where the courts of their country are not seized of jurisdiction. Fourth, and more generally, the case demonstrates the importance of establishing clear and carefully curated guidelines on how cross-border judicial communication should take place. Guidelines of these sort can be adapted to fit the particular requirements of each case, but should at the very least lay down basic standards of due process that must be observed in every case.

72. On the last point, the HCCH has drawn up a set of “Principles for Direct Judicial Communications in specific cases” that establishes useful safeguards.[91] These principles govern communications between the judges of the IHNJ, which is perhaps the leading network for judicial communications today, with 133 members representing 84 states.[92] They include measures such as notifying parties of the nature of the proposed communication, keeping a record of communications that can be made available to parties, giving parties the opportunity to be present in certain cases, and using translation services as required. The aim is to “provide transparency, certainty and predictability to [judicial] communications for both judges involved as well as for the parties and their representatives” and to uphold “the fundamental principle of judicial independence”. This initiative is to be applauded and it has been adopted in Singapore. In 2015, our Family Justice Courts issued a set of Practice Directions on direct judicial communications in international family proceedings affecting children that incorporate many of these safeguards.[93]

73. Beyond specific cases, cross-border judicial communication also strengthens relations and builds trust between judiciaries. This helps create a climate conducive to continued cooperation and dialogue on international family law issues. Over time, this will facilitate the crystallisation of norms in the practice and administration of international family justice, which might then be enshrined in international instruments or national legislation as they gain international acceptance. As the late Justice Peter Singer of the Family Division of the English High Court remarked, “[J]udges are talking more to judges. This is a healthy development. Many misunderstandings and suspicions about the way ‘they’ do it ‘abroad’ do not survive an international conference or seminar’s exposure to the reality of one’s colleagues’ experiences and explanations.”[94] Judiciaries that engage in frequent and sustained conversations open themselves to vital information flows and the cross-pollination of ideas and best practices.

VI.      Convergence: the future of international family justice

74. The third aspect of the vision I have outlined involves the convergence of substantive norms of international family justice and the way it is practised and adjudicated. I suggest that such convergence will be influenced by three main forces or trends, which I will explain in turn.

75. First, macro political, socio-economic and cultural trends will, as they always have, continue to shape our thinking about spousal relationships, children and the family, and in so doing affect the development of family law. I began the discussion in this paper by reflecting on the evolution of family law since the Middle Ages and how it came gradually to incorporate new themes – such as the recognition that women have the same rights as men, the focus on the interests of children, and the increasing acceptance of the reality of divorce and separation – while shedding old ways of thinking. As entire countries and communities became wealthier and more educated, and technology began to weave them closer together, family law underwent a process of modernisation and homogenisation. Today, with the prevalence of the international family, we are witnessing the rapid development of international family law. The rise of Asia in the 21st century, driven principally by the emergence of China as an economic superpower, may yet have important and widespread consequences on the international legal order. Trends of this scale will continue to be the tectonic forces that shape the development of family law, at both national and international levels.

76. In this connection, it may be worth noting that increasing acceptance of the ethos of TJ appears to lie behind one recent development in family law: the revival in the move towards no-fault divorce. In 2020, the UK enacted the Divorce, Dissolution and Separation Act 2020 (c 11) (UK), which provides for a divorce to be granted upon a statement by a spouse or both spouses that their marriage has broken down irretrievably.[95] Similarly, in January 2022, legislative amendments were introduced in Singapore to enable a divorce to be granted upon an agreement by the spouses that their marriage has irretrievably broken down. In explaining the introduction of no-fault divorce, the UK Government appealed to the need to reduce conflict and acrimony to enable parties to move forward, which is a key tenet of TJ.[96] And in Singapore, the Government expressly invoked the concept of TJ in justifying the introduction of divorce by mutual agreement.[97]

77. Second, the growing commitment of courts and countries to pursue collaborative solutions will be a powerful driver of convergence in international family justice. The international agreements, forums and frameworks that I have discussed evidence this. As family courts continue to engage in cross-border dialogue and trade ideas on the improvement of processes and substantive laws, I am certain that the international system of enforcement and engagement will only grow in scope and strength. Over time, as the suite of international agreements expands and family courts become increasingly interdependent, we may witness the development of a comprehensive body of international family law, built not only by national courts but also by cooperative bodies of family judges, lawyers, mediators, counsellors, psychologists, social workers, academics and policy-makers working together to address the complex needs of cross-border family issues. This is the vision of international family justice as collaborative justice that I described earlier.

78. Convergence in substantive norms must begin with a common understanding of the international conventions and agreements that represent such critical milestones in our cross-border cooperation thus far. If these instruments are understood and implemented by national courts in substantially different ways, the processes and principles embodied within them will represent nothing more than superficial harmony. For instance, the exceptions articulated in these instruments need to be uniformly interpreted in a controlled fashion to avoid readily undermining the general rule. Thus, it has been said that Art 13(b) of the Child Abduction Convention, which allows the court to refuse to order the return of the child if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”, “must be applied only so far as [it] go[es] and no further … if the Convention is not to become a dead letter”.[98] For similar reasons, Art 23(2) of the Child Protection Convention, which allows a contracting state to refuse to recognise measures taken by authorities of another contracting state if “such recognition is manifestly contrary to the public policy of the requested State, taking into account the best interests of the child”, should be interpreted restrictively.

79. One important way in which we could continue to build a common understanding of international instruments is by pursuing further collaboration and dialogue on international family justice issues. That could begin with this very conference – the biennial Conference of Chief Justices of Asia and the Pacific, organised by the LAWASIA Judicial Section. Future editions of this conference or the annual LAWASIA Conference could involve a separate and adjacent meeting of family court judges from our respective jurisdictions to consider how international family justice issues in the region might be better managed. These platforms present valuable opportunities for family judges to come together to articulate a shared understanding of existing international instruments, explore other areas of family justice in which a unified approach is necessary, and therefore also pave the way of the adoption of further instruments that promote convergent understanding.

80. I suggest that the crystallisation of substantive norms in international family law may be built upon the shared values and principles on family justice that I discussed earlier. This is not to say that our ultimate goal should be that of complete convergence in substantive law. That would not only be quixotic but also difficult to reconcile with a respect for legitimate differences in cultures, beliefs and policies that shape national laws on family matters. This means that the pursuit of convergence must be accompanied by a margin of appreciation for considered differences.

81. The third force or trend that will shape the course of international family justice and its practice is technology. Technology has, in many important ways, already transformed the way in which cases are managed, presented and adjudicated. We dwell in an increasingly paperless environment in which court documents are created, submitted and stored electronically on case management platforms and databases. In the arena of family disputes, the Integrated Family Application Management System (iFAMS) was created by the Family Justice Courts of Singapore for the electronic filing of applications for maintenance and protection orders and related applications.[99] More recently in November 2021, the Family Justice Courts launched a Divorce eService (accessible via SingPass, a national digital platform for all Singapore citizens and pass holders) to enable litigants-in-persons to file for divorce remotely, with personal details automatically populated in relevant forms.[100] Our courts are also collaborating with the Community Justice Centre, a charity which promotes access to justice, to develop a Co-Parenting App to facilitate communication and collaboration between parents on parenting matters such as access and maintenance payments.[101]

82. In his book Online Courts and the Future of Justice,[102] Professor Richard Susskind offers a glimpse of how technology will continue to transform the courts and judicial decision-making. He provides a fascinating exposition of how courts have, over the course of several centuries, transitioned from a purely physical setting to the convening of virtual hearings facilitated by video technology, and may eventually evolve into “online courts” featuring asynchronous hearings and “extended courts” providing a suite of additional services that range from providing information for litigants to facilitating out-of-court settlement. Part of Professor Susskind’s vision has already become a reality. The outbreak of the COVID-19 pandemic in 2020 provided the impetus for courts to accelerate their adoption of video-conferencing platforms and other digital technologies, which has led to tremendous change in court processes around the world.

83. There is no reason to think that technology cannot similarly bring about radical improvements in the practice of international family justice. Judicial communications or joint hearings can be facilitated by video technology or asynchronous messaging; cross-border dialogue and exchanges of ideas can be conducted electronically; and cooperative systems that require liaison between courts and central authorities or the sharing of information on particular cases can be implemented through online platforms and databases accessible to network judges. The critical point is that technology can be both a powerful enabler for the international system of family justice and a powerful driver of convergence, and is therefore worth further exploration.

VII.    Conclusion

84. Family law has come a long way. It has existed, in some shape or form, for as long as humans have made efforts to organise and regulate relationships between spouses, parents and children; and it will persist for such time as families remain the basic organising unit of our societies. If the history of family law for much of the past 2000 years can largely be described in terms of the discrete development of national laws, it is safe to say that a new chapter has opened in the past half-century. Its narrative is that of interdependence, and its primary authors are the forces of globalisation and technology, bringing our courts and countries together as actors in each other’s legal and socio-economic lives.

85. Just as we share in each other’s problems and challenges, so must our response come in the form of common solutions. I propose that what we should strive to create is an international system of family justice that is characterised by a robust superstructure of procedural rules and a common understanding of those rules. That must be founded on a shared commitment to a set of core values and principles, a readiness to communicate with other family courts and related professionals around the world, and a recognition that issues in international family justice require collaborative solutions. I believe that this process of convergence will, over time, lead to the accretion a body of norms in international family law and practice that we can collectively embrace, cultivate and refine, while leaving a margin of appreciation for considered differences in national perspectives on family matters.

86. As two legal comparativists have observed, “[m]uch of the movement toward convergence … is traceable not to deliberate efforts to impose unification, nor to transplantation, but merely to the tendency of nations otherwise similar in important respects to have similar problems and to arrive at similar legal ways of perceiving and dealing with them”.[103] Family justice is fundamental to all our societies and, in a globalised world, its international aspects have become our collective responsibility. The work is well under way but there remains much to be done. Forums such as the present one provide an opportunity for us to affirm our commitment to this shared cause and explore collaborative solutions to better deliver family justice in an interconnected world.


*I am deeply grateful to my law clerk, Keziah Simon, and my colleagues, Assistant Registrars Kenneth Wang, Huang Jiahui, Tan Ee Kuan and Tan Zhi Xiang, as well as my former colleague Elton Tan, for all their assistance in the research for and preparation of this paper.

[1] Stephen Cretney ed, Family Law: Essays for the New Millennium (Jordan, 2000) (“S Cretney”) at p 1.

[2] Peter De Cruz, Family Law, Sex and Society: A Comparative Study of Family Law (Routledge, 2010) (“De Cruz”) at p 13.

[3] S Cretney at p 1.

[4] Max Rheinstein and Mary Ann Glendon, “Interspousal Relations” in Glendon ed, International Encyclopaedia of Comparative Law (Mohr and Martinus-Nihjoff, Vol IV, 1980) at p 6.

[5] De Cruz at p 14.

[6] Ibid at p 14.

[7] Olive M Stone, Family Law (The Macmillan Press Ltd, 1977) at p 7.

[8] Raymond Apthorpe (ed), People Planning and Development Studies (Frank Cass and Company Ltd, 1970) at p 62.

[9] De Cruz at p 15.

[10] Mary Ann Glendon, “Family Law in a Time of Turbulence” in Chloros et al eds, International Encyclopaedia of Comparative Law (Mohr and Martinus Nijhoff, Vol IV, 2006) at pp 1–27.

[11] De Cruz at pp 176–199.

[12] Leong Wai Kum, Family Law in Singapore: Cases and Commentary on the Women’s Charter and Family Law (Singapore: Malayan Law Journal, 1990) at pp 9–10 and 15–16.

[13] Singapore Parliamentary Debates, Official Report (6 April 1960) vol 12 no 1 at col 438.

[14] Ibid at col 454.

[15] Channel News Asia, “1 in 4 Singaporeans marrying non-residents, increasing proportion involves non-resident men” (22 April 2021): <https://www.channelnewsasia.com/singapore/singapore-citizen-marry-foreign-spouse-non-resident-236371>.

[16] The Straits Times, “The Globalisation of Marriage Markets” (12 July 2017)): <https://www.straitstimes.com/opinion/the-globalisation-of-marriage-markets>.

[17] Barbara Stark, “When Globalisation Hits Home: International Family Law Comes of Age” (2006) 39 Vanderbilt Journal of Transnational Law 1551 at pp 1559–1561.

[18] Ibid at pp 1554–1555.

[19] Ibid at pp 1572–1586.

[20] Debbie Ong J, “Supporting, healing and reconstructing”, Keynote Address at the Family Conference 2019 (3 July 2019) at para 12.

[21] Judiciary of England and Wales, Office of the Head of International Family Justice for England and Wales, Annual Report (1 January–31 December 2012) at p 24: <https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Reports/international_family_justice_2013.pdf>.

[22] Nigel V Lowe and Gillian Douglas, Bromley’s Family Law (Oxford University Press, 11th Ed, 2015) (“Bromley”) at p 1016.

[23] Professor Nigel Lowe, “International Forum on Parental Child Abduction: Hague Convention Action Agenda” (April 1999) at p 2: <http://gpdg.co.uk/pact_old/pdf/forum_report.pdf>.

[24] Singapore Academy of Law, Law Reform Committee, “Report of the Law Reform Committee on Ancillary Orders after Foreign Divorce or Annulment” (July 2009) at para 25. Much of this stemmed from nationalistic judicial attitudes toward jurisdiction and child welfare at the time: see J M Masson, R Bailey-Harris and PJ Probert, Cretney’s Principles of Family Law (Sweet & Maxwell, 8th Ed, 2008) (“Cretney”) at p 684.

[25] Bromley at p 1017.

[26] Debbie Ong, International Issues in Family Law in Singapore (Academy Publishing, 2015) (“Debbie Ong”) at p 319.

[27] Ibid at pp 273–274.

[28] See, in the Singapore context, s 126(3) of the Women’s Charter.

[29] Sundaresh Menon CJ, “The Future of Family Justice: International and Multi-Disciplinary Pathways”, International Family Law Conference 2016 (29 September 2016) (“Future of Family Justice”) at para 35.

[30] Re AR (A Child: Relocation) [2010] EWHC 1346 (Fam) at [4].

[31] Payne v Payne [2001] 1 Fam 473 at 484.

[32] BNT v BNS [2014] 4 SLR 859 at [35(c)].

[33] Tropea v Tropea 87 NY 2d 727 at 736 (NY, 1996).

[34] Cretney at pp 860–862; Peter Hayes, “The Legality and Ethics of Independent Intercountry Adoption under the Hague Convention” (2011) IJLPF 288.

[35] Pippa Rogerson, Collier’s Conflict of Laws (Cambridge University Press, 4th Ed, 2013) at p 120.

[36] N v K [2013] EWHC 2744 (Fam) at [30] and [44].

[37] LN v SCCM (CACV 62/2013) at [31].

[38] Ibid at [33].

[39] Hague Conference on Private International Law, International Child Protection, The Judges Newsletter (Vol IV, Summer 2002) (“The Judges’ Newsletter”) at pp 9 and 18.

[40] VEW v VEV [2022] SGCA 34 at [5], [6], [8] and [80]–[94].

[41] Ibid at [72], [73] and [76].

[42] Singapore Academy of Law, Law Reform Committee, Report of the Law Reform Committee on Reciprocal Enforcement of Maintenance Orders (October 2012) at para 4.

[43] See paragraph 43 below.

[44] Sundaresh Menon CJ, “The Problem-Solving Practitioner and the Complexity of Family Justice”, Opening Address at the Family Justice Practice Forum: Family Justice 2020 (14 July 2017) at para 12.

[45] Future of Family Justice at para 46.

[46] See also Article 10(1) of the International Covenant on Economic, Social and Cultural Rights: “The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. …”

[47] De Cruz at p 395.

[48] United Nations Convention on the Rights of the Child (“UNCRC”) at Art 3(1).

[49] UNCRC at Art 3(2).

[50] Save the Children, “UN Convention on the Rights of the Child (UNCRC): An international agreement for child rights”: <https://www.savethechildren.org.uk/what-we-do/childrens-rights/united-nations-convention-of-the-rights-of-the-child>.

[51] For instance, the Guardianship of Infants Act 1934 (2020 Rev Ed)  s 3; Guardianship of Minors Ordinance (c 13) (HK) s 3(1); Children Act 1989 (c 41) (UK) s 1(1); Care of Children Act 2004 (NZ) s 4.

[52] De Cruz at pp 387 and 396. Professor Peter de Cruz has observed that the test has managed to “override established values such as patriarchal dominance … and supersede local interests and traditions previously supported by social legitimacy in many jurisdictions, stretching from India to Indiana, Sri Lanka to New Zealand”: De Cruz at pp 396–397.

[53] Article 12(2) of the UNCRC takes pains to specify that the “child shall in particular be provided an opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body” [emphasis added]. Articles 3 and 4 of the European Convention on the Exercise of Children’s Rights augment this with further details for contracting states by identifying various procedural rights of the child, such as her right to receive all relevant information about proceedings affecting her, to be consulted and express her views, to be informed of the possible consequences of any decision, and to apply for a special representative.

[54] UNCRC at Art 18(1): “States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern”.

[55] Leong Wai Kum, Elements of Family Law in Singapore (LexisNexis, 3rd Ed, 2018) (“Leong Wai Kum”) at para 7.048.

[56] Patrick Parkinson, Paper for UN Experts Group, “Family laws and access to justice” (New York, May 2015) (“Family laws and access to justice”) (“Parkinson”): <https://www.un.org/esa/socdev/family/docs/egm15/PARKINSONPAPERRECOMMENDATIONS.pdf>. at pp 4–5.

[57] The Mainichi, “Japan looks at introducing joint custody amid rise in divorce rate” (20 June 2022): <https://mainichi.jp/english/articles/20220620/p2a/00m/0na/008000c>.

[58] See paragraph 34 above.

[59] Family laws and access to justice at p 21.

[60] In the five years after the introduction of Family Relationship Centres, there was a 32% reduction in court filings of cases involving children. Between 2006 to 2009, the use of counselling and mediation services by parents increased from 67% to 73%, and contact with courts dropped from 40% to 29%: see Family laws and access to justice at pp 22 to 24.

[61] In a joint communique, the Attorneys-General of Australia, Canada, New Zealand, the UK and the US have recognised the need for a collaborative, multi-disciplinary approach to family law: see Quintet Meeting of Attorneys-General, ‘Official Communique’ (2018): <http://ag.gov.au/About/CommitteesandCouncils/Documents/quintet-communique.pdf>.

[62] Bromley at p 14; CAFCASS, “About Cafcass”: <https://www.cafcass.gov.uk/about-cafcass/>.

[63] Kevin Ng, Yarni Loi, Sophia Ang and Sylvia Tan, “Family Justice Courts – Innovations, Initiatives and Programmes” (2018) 30 SAcLJ 617 at paras 7–13.

[64] Sundaresh Menon CJ, “From Family Law to Family Justice”, Keynote Address at the Law Society Family Conference 2020 (14 September 2020) at para 33.

[65] Debbie Ong J, “Let’s Go”, Address at the Family Justice Courts Workplan 2022 (18 March 2022) (“FJC Workplan Address 2022”) at paras 22, 28 and 43–53.

[66] Jakarta Declaration at the 9th Council of ASEAN Chief Justices Meeting at paras 8(i) and 8(iii).

[67] Singapore Academy of Law, Law Reform Committee, “Report on the 1996 Hague Convention on the Protection of Children” (August 2017) (“SAL Report on Child Protection Convention”) at para 59.

[68] As Professor Tan Yock Lin queried, “Can a sovereign in all good conscience stand by while a child, not a subject, is being ill-treated within its jurisdiction?”: see Tan Yock Lin, Conflicts Issues in Family and Succession Law (Butterworths, 1993) at pp 494 and 496. See also SAL Report on Child Protection Convention at para 59.

[69] This is subject to the court’s satisfaction that the requirements of procedural fairness were met: see SAL Report on Child Protection Convention at para 60.

[70] Child Protection Convention at Arts 23(1) and (2).

[71] Leong Wai Kum at para 12.205.

[72] MO(RE)A at ss 6–8.

[73] MO(RE)A at ss 3–5.

[74] Nigel Lowe and Debbie Ong, “Why the Child Abduction Protocol Negotiations should not deflect Singapore from acceding to the 1980 Hague Abduction Convention” [2007] SJLS 216 at p 232.

[75] BDU v BDT [2014] 2 SLR 725 (“BDU”) at [25].

[76] Child Abduction Convention at Art 13.

[77] Ibid at Art 11.

[78] P v P (minors) (child abduction) [1992] 1 FLR 155 at 158G; see also Debbie Ong at para 8.20.

[79] HCCH, “Launch of iChild pilot, the Electronic Case Management System for the 1980 International Child Abduction Convention” (30 November 2005): <https://www.hcch.net/es/news-archive/details/?varevent=113>.

[80] Bromley at p 1008.

[81] Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption  at Art 4.

[82] Ibid at Art 5.

[83] HCCH, Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, “Status table”: <https://www.hcch.net/en/instruments/conventions/status-table/?cid=69>.

[84] Bromley at p 1012.

[85] HCCH, “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” (“Emerging Guidance”) at p 12: <https://assets.hcch.net/docs/62d073ca-eda0-494e-af66-2ddd368b7379.pdf>.

[86] See Art 13(b) of the Child Abduction Convention, which permits the judicial or administrative authority of the requested State to refuse to order the return of the child if it is satisfied that there is a grave risk that the child’s return would expose him or her to physical or psychological harm or otherwise place the child in an intolerable situation.

[87] A detailed account of the process is found in Hoole v Hoole 2008 BSCS 1248 at [35]–[37].

[88] Part 10, ch 4A of the Women’s Charter; Part III of the MFPA.

[89] Harjit Kaur d/o Kulwant Singh v Saroop Singh a/l Amar Singh [2015] 4 SLR 1216 at [10].

[90] The Judges’ Newsletter at pp 8–10.

[91] Emerging Guidance at pp 12–16.

[92] HCCH, “Conference of Hague Convention Network Judges celebrating 20th anniversary of the International Hague Network of Judges” (15 November 2018): <https://www.hcch.net/en/news-archive/details/?varevent=648>. As at June 2022, Singapore has designated two judges to the IHNJ, Justice Debbie Ong and Justice Andre Maniam. Together with other ASEAN Member States who are also members of the IHNJ, Singapore seeks to present an ASEAN perspective on family justice issues and trends.

[93] Family Justice Courts Practice Directions, Part III at para 7.

[94] Peter Singer J, speech at the International Symposium: “Missing, abducted, trafficked?”, Interpol General Secretariat, Lyon (extract found in The Judges’ Newsletter at p 25).

[95] Ministry of Justice, HM Courts & Tribunals Service and The Rt Hon Dominic Raab MP, ““Blame game” ends as no-fault divorce comes into force”: <https://www.gov.uk/government/news/blame-game-ends-as-no-fault-divorce-comes-into-force>.

[96] United Kingdom Ministry of Justice, Reducing family conflict: Reform of the legal requirements for divorce (September 2018) at p 28.

[97] Singapore Parliamentary Debates, Official Report (10 January 2022) vol 95 (Sun Xueling, Minister of State for Social and Family Development).

[98] Elisa Perez-Vera, “Explanatory Report on the 1980 Hague Child Abduction Convention”, offprint from the Acts and Documents of the Fourteenth Session (1980), tome III, Child Abduction at para 34: <https://assets.hcch.net/docs/a5fb103c-2ceb-4d17-87e3-a7528a0d368c.pdf>. In BDU, the Singapore Court of Appeal noted (at [32]) that courts in various jurisdictions have recognised that if the Art 13(b) exception were to be interpreted liberally, this would undermine the raison d’être of the Abduction Convention.

[99] Singapore Courts, “Integrated Family Application Management System (iFAMS)”: <https://www.judiciary.gov.sg/services/ifams>.

[100] FJC Workplan Address 2022 at paras 33–34.

[101] FJC Workplan Address 2022 at para 31.

[102] Richard Susskind, Online Courts and the Future of Justice (Oxford University Press, 2019).

[103] Merryman, John Henry, David S. Clark and John O. Haley, The Civil Law Tradition: Europe, Latin America and East Asia (Michie Company, 1994) at 22–23, cited in Aron Balas, Rafael La Porta, Florencio Lopez-de-Silanes and Andrew Shleifer, “The Divergence of Legal Procedures” (2009) American Economic Journal: Economic Policy 1(2) 138–162.

2022/11/21

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