People’s Republic of China
In the last issue of Judges’ Newsletter (Volume III, Autumn 2001), an exchange of letters between Mr Justice Wall in London and Judge Porter in Minnesota was reproduced in the article “International Liaison Judges for Family Proceedings” as follows:
“Where English judges propose to talk to their counterparts in the State of the child’s habitual residence, it would seem to me very important that they should either obtain the agreement of the parents to that course; alternatively that they should make known their intention of doing so, and invite submissions from the lawyers on the point. Equally, it is of importance that the content of any conversation with a foreign judge is reported to the parents. With these safeguards, it seems to me that open communication between judges on logistic issues is something to be encouraged.”
A recent Hong Kong case, D v G (4 December 2001, CACV003646/2001), provides an illustration of failure to observe the safeguards against breach of natural justice.
An eight year old girl was abducted by the father from Switzerland to Hong Kong and the mother sought an order for a return of the child under the 1980 Hague Convention.
The father resisted the application under Article 13(1)(b) and produced evidence to the effect that his daughter had complained to him of being sexually abused by the mother’s boyfriend in Switzerland.
The judge first directed the Central Authority of Hong Kong to contact the Swiss Central Authority to ascertain what procedures were
in place in Switzerland for investigation of child abuse. Later he spoke on the telephone himself to the Swiss Central Authority on another practical matter. After obtaining the information he considered necessary from the Swiss Central Authority, he eventually ordered a return of the child “conditional upon the Swiss Central Authority ensuring that, immediately upon the child arriving in Switzerland, an investigation takes place into the allegations of sexual abuse made by the father on behalf of the child”.
On appeal, the Court of Appeal criticised the judge for making factual enquiries himself in the absence of the parties. The Court of Appeal stated that:
“[w]hatever may be the practice in overseas countries, the making of enquiries by the court itself is something which is alien to the procedure of Hong Kong courts.
Other countries which are signatories to the Convention are civil law countries. The procedure there may be different. The role and function of a judge in those jurisdictions may be different to Hong Kong. As far as Hong Kong is concerned, it is most undesirable that a judge should take an active role in the investigation of facts, whatever they be. … It would also seem highly unusual and undesirable that a judge should communicate with an executive authority for the purposes of obtaining information in order to enable him to reach a decision, even if the authority be in Hong Kong. It would be still more undesirable if that executive authority be overseas.
… Even if most unusual circumstances prevailed and the judge found it necessary to communicate with another court or agency, that should only be done in the presence, and with the consent, of all parties and their representatives. To do otherwise would be to give the appearance of receiving evidence without the knowledge of the parties and reaching a decision without communicating the same to the parties. ... It is difficult, in my view, to imagine circumstances which
centrale suisse, sans en informer les parties, sur une autre question pratique. Après avoir recueilli de l’Autorité centrale suisse les informations souhaitées, il a ordonné le retour de l’enfant «à condition que l’Autorité centrale suisse garantisse qu’une enquête relative à l’allégation du père d’abus sexuels sur l’enfant sera suivie, dès le retour de l’enfant en Suisse».
En appel, la Cour d’appel a reproché au juge d’avoir demandé des renseignements directement, sans en avoir informé les parties. La Cour d’appel a considéré que:
«[w]hatever may be the practice in overseas countries, the making of enquiries by the court itself is something which is alien to the procedure of Hong Kong courts.
Other countries which are signatories to the Convention are civil law countries. The procedure there may be different. The role and function of a judge in those jurisdictions may be different to Hong Kong. As far as Hong Kong is concerned, it is most undesirable that a judge should take an active role in the investigation of facts, whatever they be. … It would also seem highly unusual and undesirable that a judge should communicate with an executive authority for the purposes of obtaining information in order to enable him to reach a decision, even if the authority be in Hong Kong. It would be still more undesirable if that executive authority be overseas.
… Even if most unusual circumstances prevailed and the judge found it necessary to communicate with another court or agency, that should only be done in the presence, and with the consent, of all parties and their representatives. To do otherwise would be to give the appearance of receiving evidence without the knowledge of the parties and reaching a decision without communicating the same to the parties. ... It is difficult, in my view, to imagine circumstances which would justify the communication with outside agencies, whether they be authorities or courts, or other
would justify the communication with outside agencies, whether they be authorities or courts, or other person, without giving prior warning to the parties and without having the minimum safeguard of a recording and transcript of what took place … the need for a prompt and speedy resolution cannot be grounds for permitting the court to alter the fundamental approach to the rules of evidence”
The Court of Appeal set aside the return order and the matter was remitted to the lower court for further consideration after an examination on the allegation of sexual abuse of the child conducted by a child psychologist/psychiatrist in Hong Kong.
With the greatest respect, it should be noted that the parties to the Convention are drawn from a wide variety of legal traditions. In addition to the civil law jurisdictions as the Court of Appeal has noted, there are many common law jurisdictions which are parties to the Convention such as Australia, Canada, Ireland, the UK, and the US.
Furthermore, common law judges probably make more outside contacts in the Convention cases than civil law judges. In fact, the international network of liaison judges, first proposed by the Right Hon Lord Justice Thorpe (Judge of the Court of Appeal, England) in 1998, was established to facilitate communication among judges on cases under the Convention (provided that, of course, the rules of natural justice be observed).
It may be argued that external communication made by judges in Convention cases facilitates the operation of the Convention and increases international comity. With full compliance of the rules and proper safeguards against breach of natural justice, communication between judges in Convention cases should not be discouraged and it should not require very unusual circumstances for judges to make such communication.
person, without giving prior warning to the parties and without having the minimum safeguard of a recording and transcript of what took place … the need for a prompt and speedy resolution cannot be grounds for permitting the court to alter the fundamental approach to the rules of evidence»
La Cour d’appel a annulé la décision de retour et la question a été renvoyée au tribunal de première instance pour examen, après qu’un psychologue pour enfant à Hongkong aura procédé à une enquête sur les allégations d’abus sexuels sur l’enfant.
Avec le plus grand respect, il faut indiquer que les Etats parties à la Convention sont issus d’une grande variété de traditions juridiques différentes. Comme l’a soulevé la Cour d’appel, outre les juridictions de droit civil, il existe de nombreuses juridictions de Common Law parties à la Convention, telles que l’Australie, le Canada, l’Irlande, le Royaume-Uni et les Etats-Unis.
De plus, les juges de Common Law sont plus enclins que les juges de droit civil à entrer en contact dans les cas fondés sur la Convention. En fait, le réseau international de juges de liaison, proposé en 1998 par le très Honorable Lord Justice Thorpe (juge de la Court of Appeal, Angleterre), a été mis en place pour faciliter la communication entre les juges sur les cas fondés sur la Convention (à condition bien entendu que les règles d’une justice naturelle soient respectées).
Il peut être soutenu qu’un contact extérieur des juges dans les cas conventionnels facilite le fonctionnement de la Convention et accroît les rapports internationaux. Dans la mesure où ils sont conformes aux règles et garanties posées contre une atteinte à une justice naturelle, les contacts entre autorités judiciaires dans les cas conventionnels doivent être encouragés; il n’est pas nécessaire que le juge se trouve face à des circonstances inhabituelles.