N v K (No.2)

International judicial liaison is a mechanism for obtaining practical, neutral information between courts. It is not a route to obtain legal advice, avoid expert evidence on foreign law or procedure, make submissions to another court, or resolve welfare disputes. Written questions should ordinarily be specific and practical, and a record of communications should be kept. The court may use liaison to clarify matters such as the availability and enforcement of undertakings, the making of mirror orders, and the existence or status of foreign orders. Where a party is absent and unresolved welfare issues remain, the court should limit its orders to matters it can fairly determine on the evidence and should not make substantive contact orders without hearing the absent party’s representations.

The judgment followed an earlier interlocutory decision in which the court held that it had jurisdiction under Article 8 of the Council Regulation 2201/2003 (BIIR), found the child habitually resident in England and Wales, and confirmed a residence order in favour of the mother. Proceedings had also been pursued in Florida.

The parties later attempted negotiations and proposed international judicial liaison. The father’s questions included matters of foreign law, the effect of existing orders, and detailed future contact arrangements. The father then failed to attend the hearing or participate by telephone, leaving unresolved issues about contact and related undertakings.

The central issues were the proper scope of judicial liaison and the orders that could fairly be made in the father’s absence.

1. Judicial liaison. The court endorsed the guidance in Direct Judicial Communications published by the Hague Conference on Private International Law. Written questions should be specific, neutral and practical, with a concise case summary. Communications should be recorded. Judicial liaison may address scheduling, protective measures, enforceability of undertakings, mirror orders, confirmation of foreign orders and possible transfer of jurisdiction.
2. Judicial liaison cannot be used to obtain legal advice, substitute for expert evidence about foreign law or procedure, bypass English legal research, make submissions to a foreign court, or determine welfare disputes and detailed contact arrangements. At least three of the father’s proposed questions were therefore unsuitable, and liaison could not be initiated at that stage.
3. Orders in the father’s absence. Although negotiations had substantially narrowed the dispute, the court could not confirm apparently agreed provisions while other terms remained unresolved and the father was absent. Without his full representations, the court could not properly assess the proposed contact arrangements or the proportionality of associated requirements.
4. The court accordingly confined its substantive orders to confirming that the child was habitually resident in England and Wales and should reside with the mother. No substantive contact order was made. The father could apply in writing, on notice, for determination of the outstanding issues, with the application reserved to the judge.
5. The court noted that future liaison could properly address the acceptance and enforceability in Florida of undertakings given in England, the mechanism for a mirror order, and whether further Florida orders had been made or discharged. The recognition and enforcement issue could in another context engage Chapter IV of the 1996 Convention, but the Convention was not yet in force in the United States because it had not ratified it.