Lawyers Without Borders:
‘Protecting
Children and Women’s Rights in Mediation of Family Law Matters’
Two
Case Studies!
Being
text of paper presented at the IBA conference, Boston on Monday 7th Oct., 2013 by:
Carol Ajie, LAWA Fellow, Leadership and Advocacy
for Women in Africa, Georgetown University Law Center, Washington D.C.,
Constitutional and Int’l Human Rights Lawyer
Abstract:
This paper discusses
the constitutionally guaranteed fundamental rights of children and women and
the protection and promotion of these rights in mediation of family disputes.
The Author is of the respectful view that where there is a conflict between the
right to hear and protect children and women and other interests in family
disputes, that should give way, otherwise if sustained, would ultimately
interfere with the human rights of the vulnerable; the Author references two
cases she had handled where midway into litigation, mediation was explored by
the parties to resolve somewhat rancorous family disputes, out of court. The
paper then sets a format for thinning the gaps in overcoming the challenges of
international child abduction cases in light of the advantages of multi-jurisdictional
law practices and emergence of lawyers without borders.
Key
Words:
Lawyers without borders
Child Rights, Women’s Rights and Mediation in Family Disputes
Introduction:
In 2010, a ward of the
British court was removed by his natural parents from the United Kingdom that
ratified the Hague Convention on Protection of Children and Cooperation with
Respect to Inter-country Adoption, known as the Hague Convention, and taken
against his wish to Nigeria, a non-Hague Convention country. It is imperative
to note that one of the aims of the Hague Convention being to prevent the abduction,
sale of, or traffic in children, and invariably undeniably, protects the best
interests of children.
The
English Case in the Family Court Division of the High Court of Justice:
One of the leading
matrimonial lawyers of our time incredibly committed and conscientious in Child
Abduction cases, my instructing Solicitor in England, an extra-ordinary female
lawyer, briefed my law firm in Nigeria to see that the ward was returned to the
child’s country of choice of residence, i.e the UK. Arduous task even in
situations where one of the parents is resident in UK and the other in a
foreign jurisdiction, one of whom is not cooperating, as fully captured by
Ramby de Mello in his referenced article in subsequent paragraphs, where the
foreign partner would usually refuse to return the child to the UK even in the
face of court orders to the contrary. Difficult, yet a task that must be done,
so we set to overcome the challenges; determined to attempt to succeed under exceedingly
difficult situations in country Nigeria.
First was a successful application
before Ms Pamela Scriven, QC, Deputy High Court Judge in chambers at the High
Court of Justice, Family Division, Strand, London, in August 2010 brought by
his next friend, our instructing solicitor, wherein the court ordered inter alia that the child: “shall remain a ward of this Honourable
Court during his minority, namely until he reaches 18 years of age….” The
Orders also stated as follows:
§ That
the child’s natural parents one of whom, his mother resident and remained
resident in UK and his father, a
Nigerian, return or cause to return the child to the jurisdiction of England
and Wales;
§ That
the Defendants be forbidden from taking any steps to cause or permit the child
to undergo any ceremony or betrothal of marriage whether civil or religious in
the United Kingdom or elsewhere outside the United Kingdom until such time as
the order is varied or alternatively discharged;
§ That
the Defendants be forbidden to take any steps to force or to attempt to force
or to cause or otherwise permit the child to enter into a marriage whether
civil or religion in the United Kingdom until such time as this order is varied
or alternatively discharged;
§ That
the Defendants are forbidden to use or threaten violence against the child
until such a time as this order is varied or alternatively discharged;
§ That
the 2nd Defendant, the child’s Mother be prohibited from leaving the jurisdiction of
England and Wales until such a time as this order is varied or alternatively
discharged;
§ That
upon the child’s return to England and Wales the Defendants shall be prohibited
from removing the child from the jurisdiction of England and Wales without the
specific permission of the court;
§ A
penal notice attached to the preceding paragraphs of the Order stated above.
§ Permission
granted to the Plaintiff, the child’s next friend a renowned Solicitor to serve
facsimile, scanned or e-mailed copies of the proceedings personally upon the
natural mother of the child;
§ Permission
granted to bring the notice of the proceedings to any and all administrative or
judicial authorities in England and Wales and Nigeria as may assist in securing
the return of the child to the jurisdiction of England and Wales.
In anticipation that
this was not going to be too complicated a process, the next friend in UK, had
tracked her ward to a school in Nigeria where the ward, aged 17 years,
struggled to escape from his abductors after pleas for his release proved
abortive.
Getting
Abducted Children Back From non-Hague Convention Countries
A problem in Britain
identified by Ramby de Mello, N0. 5 Chambers
London, in his published article titled: “Getting
Abducted Children Back From non-Hague Convention Countries” at page 34 of
IBA Family Law Newsletter of Sept., 2013, “…. is that when British citizen children are
forcibly taken or kept by one parent in a non-Hague Convention country against
the wish of the other British citizen parent resident in the UK who wants the
children to be brought up in the UK. The parent in the non-Hague Convention
country will simply not return the children to the UK, despite the local family
courts in the foreign country granting custody to the parent who is resident in
the UK.”
Our instructing Solicitor
under-pinned mediation as the way to resolving it and to de-emphasized
litigation at the initial stages when she introduced us to the school in Nov
2010 as the lawyer agent to take the ward in a way that is amicable but that
was not to be. Rather than allow us access to the ward, the school took us
through several twists and turns and thereby compelled us, again following
instructions, to file a lawsuit to register the two court orders of two Judges
of the High Court of Justice, Family Division, Strand, London, per Moylan and
Theis JJ., before the Chief Judge of the Federal High Court, Abuja who in
consideration of an application we filed under section 4 of the Foreign
Judgments (Reciprocal Enforcement) Act, Laws of the Federation of Nigeria 2004,
the Child Rights Act, 2003, et al granted certain Orders in the suit of the child by his next friend, against the
School, on 3rd Dec., 2010 as follows:
1. Granted
leave of Court to the Applicant for the registration of the Orders of the Royal
Courts of Justice, Strand, London, UK made by the Honourable Mr. Justice Moylan
of 11th November, 2010 and the Honourable Mrs Justice Theis of 18th
November, 2010, in Re: Suit No. FD10P01834.
2. Granted
leave of Court to serve the Respondents collectively and or individually with
the registered Orders of Court by DHL courier service to be dispatched by the
Applicant’s Solicitors to the Respondents’ last known address;
3. Granted
leave to the Applicant to enforce the said registered orders of court forthwith
and certainly by the 8th December, 2010 when the committal proceedings
against Miss “L” and others, will be taken and determined by Theis J., of the
High Court of England and Wales.
4. The
Respondents ordered to attend Court on the next adjourned date, in company of
Master “E” a Ward of the High Court of England and Wales, unlawfully being
detained by the Respondents; and to release him forthwith to the Applicant’s
Solicitor for the purpose of returning him to the UK.
The case was adjourned to 13th day of
December, 2010 for report of compliance.
On Monday 6th
Dec., 2010, the above court order of Hon. Justice Ibrahim Auta C.J., had been
served on the School by DHL. More drama unfolded. The School was working with
the Ward’s father in Nigeria to render nugatory, the Federal High Court’s
Order. A petition suddenly surfaced from the father’s Solicitor acting on
behalf of his client, to the school with instructions not to release the ward.
They went before another Judge in the High Court of Delta State, Sapele
Judicial Division and obtained ex-parte Orders on 10th Dec., 2010 in
a matter between the ward’s natural parents i.e Mr. “J” as plaintiff and Miss “L”
as defendant, in these terms:
“……. In the light of the above, taking the best
interest of the child as directed by Section 3 of the Child Rights Law, 2009 of
Delta State of Nigeria as a paramount consideration, I also take into
consideration that no Order of High Court of England has been produced in this
Court. I hereby make the following orders:
An
ORDER OF Interim injunction is hereby to issue restraining the 1st
Defendant by herself, agents, privies, servants and other labourers from
repatriating the said Master Edirin Onojeta-Idogun to the jurisdiction of the
High Court of England and Wales pending the hearing and determination of the
motion on notice for interlocutory injunction….”
Faced with
circumstances of two conflicting court orders, and the Respondents in our case,
not being ready to bring the ward to Abuja for purpose of his return to UK as
ordered, the ward anxious to return to England, escaped from his abductors but
they went and laid ambush for him at the International airport Abuja and
thereby frustrated his movement to return, assisted by Nigerian Immigration
officers. Once the ward was again in his
father’s firm grips, he removed him from school to forestall possibilities of
further escape and kept him at an undisclosed location in Delta State. And
thereby violated provisions of the Child Rights Act 2003 and the UN Convention
on the Rights of the Child and African Charter on the Rights and Welfare of the
Child, 1990, he was 17. The Act defines a child as any human being below the
age of 18 years. Note that some of the basic rights of a child include the right
to:
Life; identity (name); the dignity of the child;
freedom of association and peaceful assembly; freedom of movement; freedom of
expression; privacy; right to survival and development; leisure, recreation and
cultural activities; free, compulsory and universal primary education; health and health services; protection against
harm and exploitation and freedom from every form of discrimination.
Furthermore section 3
of CRA, 2003 stipulates that Chapter IV of the Constitution of the Federal
Republic of Nigeria on fundamental rights shall apply in safeguarding the
rights of children.
He broke every single
right of the child protected by statute and International Convention. Conversely,
we again approached the Federal High Court Abuja in the jurisdiction where the
Ward was prevented from travelling, for breach of his fundamental right of
movement and the dignity of his person. We relied heavily on sections 33,
34(1), 35, 36, 37, 39, 40 and 41 of the Constitution of the Federal Republic of
Nigeria, 1999, as amended; the Child Rights Act, 2003 and the UN Convention on
the Rights of the Child.
As though providentially,
in the course of the court proceedings, mediation was initiated by the father
and arrangements concluded for the safe return of the Ward to England where he
lived happily thereafter.
Judicial collaboration is a sine qua non in managing trans-border
enforcement of Court Orders especially where the legal or procedural matrix
connect to a non-Hague Convention Country such as Nigeria, where the making of
judicial pronouncement in the matter aided the process of the return of abductees
to country of choice of residence. Therefore, the active involvement of a
foreign judge ie Federal High Court Abuja was a necessary tool in facilitating
the Child’s return. We invited the court in pursuance of s.251 (1)i of the Nigerian Constitution, 1999
which confers exclusive jurisdiction on the Federal High Court in matters of
immigration and emigration.
We also
sought reliance on sections 11, 15, 19(1), 95(1), 104(2), 107(b) & (c) and
108 of the Sheriffs and Civil Process Act Laws of the Federation of Nigeria,
2004 and the Foreign Judgments (Reciprocal Enforcement) Act, LFN 2004 to enable
register and execute the English Court Orders and Judgments in navigating the terrain.
Children’s perspective
and preferences in decision making processes are non-negotiable. Hence Judges must
meet with them or read from them before they hand in decisions affecting
children in family disputes and resolution.
Article 12 of the Convention on the Rights of the Child creates
an obligation for governments to ensure that children are provided with an
opportunity to express their views about decisions that affect their well-being.
Yet, certain tensions remain between those that believe children
need protection and those that believe children have rights and need to be able
to exercise their rights, particularly during family disputes that involve
their well-being.
Most children want to be
asked their opinions about the plans being made for them.
In summary,
children want a voice, and the Nigerian Child Rights Act having given them a strong
voice, we owe every child a duty to ensure they are heard. RE Emery,
‘Children’s voices: Listening – deciding is an adult responsibility’ (2003) 45
Arizona Law Review 621–627
Dissolution
of marriage and division of matrimonial property: Protecting Women’s Rights!
Celebrated case in point: In Prest -vs- Prest, a High Court Judge in England in 2011, had ordered
Michael Prest to pay his former wife Yasmin Prest £17.5m out of his total
wealth estimated at £37.5m. Mr. Michael Prest’s money was tied up in offshore
companies and some of those companies owned properties in London – one of which
was the former matrimonial home, worth £4m house in Little Venice, West London.
Moylan J., ordered the companies to transfer those properties to Yasmin Prest
in part-payment of her £17.5m. He appealed the decision. Although the issue
split the Court of Appeal, the Supreme Court did uphold the divorce settlement
in June 2013.
Within a period of 3 years a case had begun at
the High Court and decided in the apex court; other jurisdictions e.g. Nigeria
ought to emulate these remarkable judicial quick strides!
The English court did rely on s. 24(1)(a) of the
Matrimonial Causes Act 1973, that in granting a divorce, the English courts may
order a party to the marriage to transfer to the other party "property to which the first-mentioned
party is entitled, either in possession or in reversion".
The crux of the case is that these properties
were not owned by Michael Prest. They were owned by his companies. The
companies were owned by him but he had sole control over them and was entitled
to them, said Moylan J. That was the word used in the statute. Describing
Justice Moylan’s reasoning as “heretical”, the Court of Appeal, per Rimer JCA
held that “a one-man company does not metamorphose into the one man simply
because the person with a wish to abstract its assets is his wife.” Justice Patter, JCA agreed with him and held
that Moylan was wrong because shareholders have no interest in, or entitlements
to company assets. Justice Thorpe, a senior member of the three-member panel
and a family court Judge defended Justice Moylan’s decision, in tandem with
previous decisions of the family court; the same exquisite Judge Moylan
upholding the fundamental rights of women and children in family law matters.
When the Supreme Court ruled in June 2013, the most senior member of the
seven-person panel, Lord Sumption delivered the lead judgment and found a
theory that the companies’ properties in London were held on trust for Yasmin
Prest, even though they were owned by companies that were controlled by Michael
Prest, those companies must now transfer the properties to her.
What was Yasmin referring to when at the close of
verdict she said: "None of this would have been necessary if Michael had been
sensible and played fair." Playing fair and being sensible could
imply mediation of family disputes, negotiations and settlement of property
with the Petitioner rather than being unyielding and recalcitrant; had one of
the parties initiated mediation and the other accepted it, the matter may not
have reached the stage of judicial determination.
The Benefits
of Mediation:
1. Less
costly, less rancorous and not subject to media attention unlike litigation
2. Flexibility
in arriving at a satisfactory arrangement mutually acceptable to the parties
3. Retains
mutual trust based on discovery of new common grounds during mediation
4. Sustains
friendship; parties agree to disagree as friends and not litigating adversaries
5. Long
drawn parental conflict has long-term, negative impacts on children of all ages
6. Time
efficiency, mediation saves communications; litigation and arbitration do not.
7. Mediation
is confidential, the parties control it, not court or attorneys as in
litigation.
By way of
quick emphasis, sections 11, 12, 13 and 14 of the Matrimonial Causes Act, CAP
M7 Laws of the Federation of Nigeria, 2004 intended to inject mediation into it
when made copious references to one of its twin-pillars, “conciliation” as stated
hereunder:
11. (1)
It shall be the duty of the court in which a matrimonial cause has been
instituted to give consideration, from time to time, to the possibility of a
reconciliation of the parties to the marriage (unless the proceedings are of
such a nature that it would not be appropriate to do so), and if at any time it
appears to the judge constituting the court, either from the nature of the
case, the evidence in the proceedings or the attitude of those parties, or of
either of them, or of counsel, that there is a reasonable possibility of such a
reconciliation, the judge may do all or any of the following, that is to say,
he may-
(a)
adjourn the proceedings to afford those parties an opportunity of becoming
reconciled or to enable anything to be done in accordance with either of the
next two succeeding paragraphs;
(b) with
the consent of those parties, interview them in chambers, with or without
counsel, as the judge thinks proper, with a view to effecting a reconciliation;
(c) nominate
a person with experience or training in marriage conciliation, or in special
circumstances, some other suitable person, to endeavour with the consent of the
parties, to effect a reconciliation.
(2)
If, not less than fourteen days after an adjournment under subsection (1) of
this section has taken place, either of the parties to the marriage requests
that the hearing be proceeded with, the judge shall resume the hearing, or the
proceedings may be dealt with by another judge, as the case may require, as
soon as practicable.
12. Where a judge has acted as conciliator
under Section 11(l) (b) of t is Act but the attempt to effect a reconciliation
has failed, the judge shall not, except at the request of the parties to the
proceedings, continue to hear the proceedings, or determine the proceedings;
and, in the absence of such a request, the proceedings shall be dealt with by
another judge.
13. Evidence of anything said or of any
admission made in the course of an endeavour to effect a reconciliation under
this Part of this Act shall not be admissible in any court (whether exercising
federal jurisdiction or not) or in proceedings before a person authorised by
any enactment, federal or state, or by consent of parties, to hear, receive and
examine evidence.
14.
A marriage conciliator shall, before entering upon the performance of his
functions as such a conciliator, make and subscribe, before a person authorised
in Nigeria to take affidavits, an oath or affirmation of secrecy in accordance
with the form in the Second Schedule to this act.”
Section 72 subsections
1, 2 and 3 of the Matrimonial Causes Act CAP M7, Laws of the Federation of
Nigeria 2004 state that:
(1)
“The court
may, in proceedings under this Act, by court in order require the parties to
the marriage, or either of them, to make, for the benefit of all or any of the
parties to, and the children of, the marriage, such a settlement of property to
which the parties are, or either of them is, entitled (whether in possession or
reversion) as the court considers just and equitable in the circumstances of
the case.
(2)
The court may, in proceedings under this Act, make such order as the court
considers just and equitable with respect to the application for the benefit of
all or any of the parties to, and the children of, the marriage of the whole or
part of property dealt with by ante-nuptial or post-nuptial settlements on the
parties to the marriage, or either of them.
(3)
The power of the court to make orders of the kind referred to in this section
shall not be exercised for the benefit of a child who has attained the age of
twenty-one years unless the court is of opinion that there are special
circumstances that justify the making of such an order for the benefit of that
child.”
Although section 72(1) of Matrimonial Causes Act
LFN, is similar to S.24 of the Matrimonial Causes Act 1973, in Nigeria, the
above provision exist on paper only as no Nigerian in Nigeria has yet enforced
the law. However, as long as women remain in marriages, Nigerians should meet
the art of pre-nups or post-nups especially as our law makes adorable references
to these provisions. Hence I will commend to FIDA Nigeria, NBA Women Forum and
other gender groups to start the sensitization campaigns towards keeping the
future of our women and children matrimonially, financially secured in the
unlikely event of death, divorce or judicial separation.
In a recent case I testified before a U.S Court
via Skype and rigorously cross examined by a strong lady Attorney, American, the
Petitioner, a Nigerian lady resident in US sought for the dissolution of her
marriage to a Nigerian soccer star. I gave expert opinion on when a marriage is
valid under our Matrimonial Causes Act. In the end the petitioner got what no
Nigerian Judge would have awarded her, some real estate of note owned by the
Respondent abroad. She begun with a lawsuit and ended by mediation initiated by
the Respondent and his Counsel after my written and oral testimony was made under
Oath and when tested under cross examination remained unshaken. No other expert
opinion was called thereafter and the family dispute was with respect to
proprietary rights of parties and the rights of the child of the marriage,
resolved.
Thank you!
Carol Ajie
Attorney-at-Law,
C.N Ajie & Co., Legal Practitioners, Lagos & Abuja Nigeria
Bibliography:
1.
UN Convention on the Rights of the Child
2. The Hague Convention
3. The Child Rights Act, 2003
4. The Constitution of the Federal Republic of Nigeria,
1999
5. Foreign Judgments (Reciprocal Enforcement) Act, LFN
2004
6. Sheriffs and Civil Process Act, 1945
7. Matrimonial Causes Act, CAP M7 LFN 2004
8. Matrimonial Causes Act, 1973
9.
RE Emery, ‘Children’s voices: Listening – deciding is an adult
responsibility’ (2003) 45 Arizona Law Review 621–627
10. Ramby de Mello,
N0. 5 Chambers London: “Getting
Abducted Children Back From non-Hague Convention Countries” page 34, IBA
Family Law Newsletter Sept., 2013
No comments:
Post a Comment