Procedural Matters
On 8 January 2008 the Oregon Circuit Court sought to initiate direct communication with the Supreme Court of British Colombia. This was in accordance with the Oregon rules which provided that upon being informed of a child custody proceeding having been commenced in another court, the relevant Oregon court shall communicate with the foreign court to resolve the emergency, protect the safety of the parties and the child and determine a period for the duration of the temporary order.
The Oregon judge wished to raise two matters: the determination of the duration of the temporary order; and the proper jurisdiction for matters relating to the child. On 10 January a joint, open hearing was convened involving both courts. Mother and father both had representation before the Oregon judge, father only in front of the British Columbia judge.
During the joint hearing the parties agreed that the Supreme Court of British Columbia was the appropriate jurisdiction in which to decide the issue of custody and to a voluntary return of the child. Equally they reached agreement on the interim custody of their son. In her judgment in the Supreme Court of British Columbia, Justice Martinson further considered practical and policy issues surrounding direct judicial communication from both Canadian and international perspectives.
She noted that both the 4th and 5th Meeting of the Special Commission to review the operation of the 1980 Hague Convention had approved of the practice and had issued recommendations including safeguards that might be adopted. These had been approved by the Canadian judiciary.
Consequently, there was a recognition that judicial communication should not be for the purpose of considering the merits of a case. Rather it was to provide judges with the relevant information needed to make informed decisions on matters such as jurisdiction, including the location of the place of habitual residence and in obtaining information about the custody laws of the other jurisdiction.
Communication could also make case management more efficient, thereby facilitating expedited procedures to return the child to his or her habitual residence, where appropriate. It could also assist in obtaining, when ordered, the prompt and safe return of the child, such as by the use of undertakings to be done by the parents and the making of identical orders in each jurisdiction to ensure enforcement (mirror orders). Furthermore communication could be useful in encouraging a parent to agree to voluntarily return a child and in encouraging a more amicable resolution of the parents’ dispute.
By communicating directly between judges, courts were fulfilling their mandate under the Hague Convention to co-operate to facilitate the prompt and safe return of children. Such co-operation would send an important message to potential child abductors that courts would not tolerate child abduction and, when appropriate, would act immediately to restore children to the country from which they had been wrongfully removed or retained.
Direct judicial communication did not interfere with the judicial independence of either court involved. The communication did not involve a judge of one country making decisions which were within the jurisdiction of the other judge. Rather, it led to the making of fair, impartial, timely, and well-informed decisions by the judge who should be making the decision, applying the laws of that judge’s jurisdiction.
Justice Martinson further considered several issues of concern pertaining to direct judicial communication. She noted that the provision of translation facilities could assist in overcoming linguistic challenges, whilst appropriate explanation of legal terms as well as differences in legal systems could minimise the risk of misunderstanding between judges.
The security of the process could be guaranteed by channelling communication through members of the International Hague Network of Judges and any risk of misunderstanding by the parties could be limited by judges explaining the nature of the communication to them directly or via their counsel.
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