For family law practitioners, particularly those who specialise in cases with an international element, the race to secure a favourable jurisdiction is familiar territory. However, as Vardags barrister John Oxley makes clear in a new article for the International Family Law Journal, when it comes to child matters, preemptively issuing proceedings can be a recipe for “heartache” and have “a detrimental effect on the welfare of the child”.
In ‘Italian torpedoes and international children: how Brussels II engenders conflict in Children Act cases’, John puts forth that the framework of Brussels II, the EU legislation which regulates family law disputes involving multiple Member States, can force parents into a double bind.
Parents may be inclined to resolve their matter out of court, as encouraged by English law. However, when it comes to cases where jurisdiction could be disputed, if a parent does not promptly issue child proceedings, they run the risk of the other side “optimistically issuing in another jurisdiction”. This tactic is known as the ‘Italian torpedo’:
“In order to fire the torpedo, a litigant issues proceedings in a weak, but arguable, jurisdiction and relies on the fact that it will be some time before those proceedings are struck out to foster leverage”.
Caught in the crossfire of parental conflict, such delays can of course be detrimental to the child, whose best interests are supposed to drive proceedings.
Subscribers of the International Family Law Journal can access the full article to discover the specifics of how the European legislation ‘arms’ the torpedo and the effect of this on the child, in addition to John’s insights on how this issue could be remedied.