It is the first time that a Research Report offers an overview of the current situation in the ENPI South region as well as a comparative review of national experiences in the field of resolution of cross-border family conflicts. The background model of reference is that of The Hague conventions and the Malta process. Not because of hegemonic reasons, but rather because it provides a standard to test various definitions and regulations.

The breadth of the research questions and the variety of responses given to such questions in the various jurisdictions of the ENPI South region are truly remarkable. Not only had an assessment of such variations never been attempted on the regional level, but it is also rarely available domestically in the jurisdictions with multiple court systems and/or multiple applicable laws. The teams of respondents often had to go to great lengths beyond the available data to provide the detailed responses compiled in this report.

Cross-border family conflicts, however, feed and strive exactly on such a multiplicity of responses, as litigants try to profit from differing legal systems and the diversity of regulations therein. Litigants tend to select a court that will apply a law possibly offering a more convenient solution, or that will pass a more favourable judgment.

The instinctive forum-shopping is fuelled by a general mistrust between jurisdictions: a general mistrust often based on a lack of knowledge of the system of jurisdictions and applicable laws that can interact in a cross-border family conflict. Such general mistrust can be dispelled—or confirmed—by more in-depth knowledge, which is the main purpose of the report.

The report attempts to offer a detailed overview of the jurisdictions and regulations of family law matters in the ENPI South region when a foreign (namely: European) element is involved. Such a detailed overview will provide aid in identifying the ways in which to approach cross-border family conflicts, possibly defuse them and avoid the traditional recourse to diplomatic intervention.

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The report opens with a survey on the distribution of competencies between religious and civil jurisdictions, in particular when a foreign element is involved—and the degree of relevance such an element of foreignness brings forth. In doing so, the report also considers the way in which cross-border family cases are allocated to and decided by the different institutions and organs in practice. (Section A)

Beyond the conventional system of jurisdictions, the report identifies the existence and operation of other dispute resolution bodies in the ENPI South countries (both generally and in the field of family conflict resolution in particular). (Section B)

The report then addresses, in detail, individual areas of family conflicts to identify the key issues – problems of definition or formal classification, give an overview of the current situation in the ENPI South region, and to establish the occurrence of regular clashes on specific points with the jurisdictions of selected EU MS. (Sections C-G)

Whereas a comparative review of national experiences in the field of resolution of cross-border family conflicts emerges throughout the report, the latter’s last section looks in particular at specialised bodies that operate within individual jurisdictions. (Section H)

Drawing on the experience of the questionnaire and the technical visits, the report closes with a few comparative remarks on the areas that deserve further attention and those in which EU action can readily focus. (Closing Remarks)

The following series of questions on the different aspects of access to justice and legal aid, presented under five headings, is one way of introducing the methodology used in preparing this handbook, although these questions address substance rather more than structure and content. The aim is to provide a global idea on the subject and to coordinate best practices with the different aspects of access to justice and legal aid.

Those practices that are the object of this handbook have been described by a group of legal professionals from the ENPI countries of the southern Mediterranean delegated officially by the ministries of justice in their respective countries, during five meetings lasting three days that provided the substance of the handbook.

The five headings proposed in this introduction are the following:

1. The legal and institutional framework for legal aid

2. Cooperation between the ministries of justice and the bar associations, and coordination with the NGOs

3. The accessibility of justice, that is the real possibility of being able to go to trial

4. Legal aid for those in underprivileged social groups

5. Access to justice in the public interest: public interest litigation

Apart from making access to trial easier for litigants and guaranteeing representation before the courts, access to justice is rooted in a legal framework that must be adequate, and in the fair settlement of disputes by the courts.

The range of legal and judicial systems in force in the ENPI southern Mediterranean region are not really an obstacle to making a global analysis of the framework for access to justice, which is governed by legal principles and by national and international legislation, more particularly the obligatory standards in the International Covenant on Civil and Political Rights (equality before the law, assumption of innocence, guarantees against arbitrary arrest, the right to a fair and public trial conducted by a competent, independent and impartial court, established by law), binding on those countries that have ratified the same Covenant and that are destined to use this handbook, as well as those stipulated by the underlying Principles on the independence of judges (independence guaranteed by law, any interference in the judicial process prohibited, sufficient resources for the public service of justice, principles governing the selection, training and rules for the way in which the system functions and is disciplined, fair proceedings and respect for the rights of the parties involved), the underlying Principles on the role of lawyers, barristers and solicitors (effective procedures and mechanisms adequate for equality of access to a lawyer, sufficient resources to ensure the services of legal aid to those who are destitute and other persons in uncertain situations, the freedom to form or to join professional organisations and, in the case of the latter, to cooperate with governments in regard to the services provided by these professionals), the underlying Principles on the role of prosecutors (defining the responsibilities of prosecutors regarding the protection of human rights and dignity and ensuring a fair trial, the strict separation of court functions from those of the public prosecutor’s office), the code of conduct of agents responsible for enforcing the law (respect for human rights and assistance for all persons in need of urgent help), the underlying principles on treatment of prisoners (prohibition of discrimination, respect for human rights as well as for international conventions, reinsertion of ex-prisoners in society in the best possible conditions, bearing in mind the rights of victims).

Furthermore, some particularly important work has been accomplished over the past decade by the Council of Europe, the European Commission for the Efficiency of Justice (CEPEJ), to produce precise principles and recommendations on the multiple aspects of access to justice.

International and regional references, more particularly European, listed under the heading “Principal References”, attached to this handbook, take account of the amount of work accomplished to date.

These references help the reader better understand these sources and ramifications of best practices that have been produced by consensus within the work group mentioned above.

Accompanied by interventions from specialists on a range of issues relative to the object of their meetings, participants at the working meetings that gave rise to this handbook have been led through their discussions to deal with the growing needs arising in their respective countries, more particularly due to political upheavals in that region, and to take account of this in their work.

This analysis should be an introduction to the theme that will lead to defining, on the one hand, means of access to justice, and, on the other, the obstacles that hinder such access or simply exclude access to justice, the aim being to guarantee equality for all in gaining access to justice, whatever a person’s legal status (this is particularly important in dealing with illegal migrants, refugees and asylum seekers) or social status (whether these are underprivileged groups discriminated against on the grounds of gender, religion, income, displacement that has affected them due to conflict or war, etc.).

Among the obstacles to access to justice we find:

– on the one hand, the high cost of justice (the cost of proceedings, judicial expertise, lawyer’s fees), out-dated or incorrect legislation (namely that defining the organisation of justice and judicial procedure), a lack of statistics, a lack of mechanisation in the courts or insufficient staff training

– and, on the other, a lack of information for litigants on their rights, and, for those who are sufficiently well informed, a lack of material means to help gain access justice.

A consequence of these obstacles, is that the ENPI countries of the southern Mediterranean are working to reform the justice sector and are supported in this task by the European Union, this handbook being an example of the results of this cooperation.

The question of access to justice is inherent in the reform of justice. Legal aid is a means of guaranteeing equality among litigants and also of confronting the growing demand for justice.

Best practices in gaining access to justice are those arising from the objective of making justice independent, impartial, diligent, effective and efficient (for the lowest cost and with the best quality).

Basically, these same parameters are the same for legal assistance (that is legal counselling and judicial representation). Can legal aid have an influence on justice?

The questions raised briefly below are not exhaustive in that they serve as a simple framework within which to develop “best practices”, that is pertinent, generic responses to questions raised, these responses forming the substance of this handbook as a “reference document” on access to justice and legal aid.

Legal aid provides access to justice for the underprivileged and contributes to the quality of justice (simplified procedure, reasonable cost, swift progress, well grounded judgments, etc.), to which litigants, in certain cases, may prefer conciliatory mechanisms, that are possibly traditional.

These alternative methods to settling disputes have their own disadvantages in trying to meet the aim of access to justice, particularly when they apply customs rooted in the discrimination of women.

Mediation organised by law and conducted by a group of specialists could overcome shortcomings in this field.

As in other areas of public administration, justice is also faced by the challenge of the new technologies. The organisational revolution that assumes the application of ICT in any sector has major repercussions when analysing the world of justice. The impact of the new technologies affects both material means and the human resources working in the public service of justice. Besides this, it also affects all professionals whatever their relationship with the administration of justice, and, of course, it affects the final user of justice, that is, the public.

Aware of the diversity of factors and elements that are part of introducing new technological means to the justice sector, we have tried in this study to adopt the approach of access to justice from the ICT point of view in the following ENPI South countries:

– The Democratic Republic of Algeria
– The Arab Republic of Egypt
– Israel
– The Hashemite Kingdom of Jordan
– Lebanon (Lebanese Republic)
– The Kingdom of Morocco
– Palestine
– The Republic of Tunisia

The final result of our work appears in a list of seventy nine (79) best practices, the result of our discussions and agreements reached in the three work group meetings.

1. Each year, thousands of children are affected by cross-border family disputes. It is not rare for disputes surrounding parental separation or divorce to result in situations that threaten children’s rights to maintaining personal relations and direct contact with both their parents. State borders can in such cases add an additional and sometimes invincible layer of obstacles hindering the resolution of the dispute. While parents are drawn into lengthy, exhausting and costly battles over custody and contact, which often weigh heavily on the extended families on both sides, children suffer from the harmful effects of the conflict that sometimes accompany them for a large part or all of their childhood.

2. In today’s globalised world, where living and working in foreign countries, be it temporary or long-term, has become a reality in the lives of many families, an increasing number of family disputes has an international element. Tools assisting in the resolution and prevention of cross-border family conflicts have become more important than ever. State cooperation, including cooperation on a governmental, administrative and judicial level, is needed to set up an efficient framework for the resolution of cross-border family conflicts and to protect children from the harmful effects of such conflicts.

3. Acknowledging the importance of further extending and improving cooperation in the Euro-Mediterranean area in the field of international family law, the Euromed Justice III Project, Component 2 was established with the aim of developing a Handbook of Good Practices regarding the resolution of cross-border family disputes with a particular focus on the Euro-Mediterranean region.

4. The Euromed Justice III Project, Component 2 provided a unique setting for the identification and elaboration of Good Practices of particular relevance for the region, establishing a Working Group consisting of experts from the following ENPI South Partner Countries:

· the People’s Democratic Republic of Algeria,
· the Arab Republic of Egypt,
· Israel,
· the Hashemite Kingdom of Jordan,
· Lebanon,
· the Kingdom of Morocco,
· Palestine, and
· the Republic of Tunisia.

5. The Good Practices contained in this Handbook are the result of the extensive work of the participating experts in the course of five Working Group meetings held in:

(1) Barcelona on 22-24 May 2012,
(2) Rome on 18-20 September 2012,
(3) Madrid on 11-13 December 2012,
(4) The Hague on 5-7 March 2013, and
(5) Prague on 23-25 April 2013.

6. In the identification and elaboration of Good Practices for the resolution of cross-border family disputes, the Working Group built on the important work already undertaken by other bodies in this field of law, in particular the work of the Hague Conference on Private International Law, and took into consideration relevant international, regional and bilateral legal frameworks. The Working Party furthermore benefited in the identification of Good Practices from the work undertaken in the course of the predecessor projects, the Euromed Justice Project I (2004-2007) and the Euromed Justice Project II (2008-2011)[1], launched by the European Commission with the aim to promote inter-State and regional cooperation and to encourage continuing exchange between judges and other members of the legal profession and officials of different States. Many of the experts participating in the Working Group set up under the Euromed Justice III Project had formerly participated in one or more of the Euromed seminars or study visits in the course of the predecessor projects.

7. Of significant importance for the identification of Good Practices for the Euro-Mediterranean region was the work undertaken in the context of the so-called “Malta Process”[2] initiated by the Hague Conference on Private International Law. The “Malta Process” is a dialogue between senior judges and high-ranking government officials from Contracting States to the 1980 and 1996 Conventions[3] and non-Contracting States with Islamic law influenced legal tradition with the aim to improve the protection of cross-frontier rights of contact of parents and their children and to find solutions to problems posed by the cross-border wrongful removal or retention of children where relevant international legal framework is not applicable. The Malta Process is based on the respect for the diversity of legal systems, cultures and traditions and driven by the commitment to the common objective of protecting children from the harmful effects of cross-border family disputes. So far, three major judicial conferences on cross-border family law were held in Malta in 2004, 2006 and 2009 addressing in particular how a better cooperation between the participating States in the resolution of cross-border family disputes could be achieved.

8. Of particular relevance for the Euromed Justice III Handbook Project are the recommendations made by the experts participating in the Malta Conferences, the three so-called “Malta Declarations”.[4] It is important to note that experts from nearly all of the ENPI South Partner Countries were participating in one or more of the Malta Judicial Conferences.

9. Furthermore, a development flowing from the Malta Process of particular significance for the identification of Good Practices in the Euromed Justice III Project, is the work undertaken to set up structures for international family mediation assisting in the resolution of cross-border family disputes. Following a recommendation contained in the Third Malta Declaration, a Working Party consisting of State-designated experts from Australia, Canada, Egypt, France, Germany, India, Jordan, Malaysia, Morocco, Pakistan, the United Kingdom and the United States of America elaborated “Principles for the Establishment of Mediation Structures in the context of the Malta Process”.[5]The Principles call for the establishment of a “Central Contact Point for international family mediation” in each State facilitating the provision of information on available mediation services, on access to mediation, and other related information, including information regarding access to justice. In addition, the Principles lay down certain standards regarding the identification of international mediation services as well as certain standards regarding the mediation process and implementation of the results of mediation. It is important to note that any State is free to adopt and implement these Principles.[6] So far six States, namely, Australia, France, Germany, Pakistan, the Slovak Republic and the United States of America have established a Central Contact Point for cross-border family mediation in accordance with these Principles.

[1] Further information available at < http://euromed-justiceii.eu/en/home/list/&tid > (last consulted 15 May 2013).

[2] See for further information on the “Malta Process” the Hague Conference website at

< http://www.hcch.net/index_en.php?act=publications.details&pid=5214&dtid=46#malta > (last consulted 15 May 2013).

[3] See below para. 11 regarding the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children.

[4] The three Malta Declarations are available at < http://www.hcch.net/upload/maltadecl09_e.pdf > (last consulted 15 May 2013).

[5] The Principles and the accompanying Explanatory Memorandum are available on the Hague Conference website at < www.hcch.net > under “Child Abduction Section” then “Cross-border family mediation”.

[6] The Principles for the Establishment of Mediation Structures in the context of the Malta Process have received wide support from States in the course of the Sixth Meeting of the Special Commission on the practical operation of the 1980 and 1996 Conventions. In the Conclusions and Recommendations, the Special Commission welcomed the Principles and encouraged States “to consider the establishment of such a Central Contact Point or the designation of their Central Authority as a Central Contact Point”, see the Conclusions and Recommendations Nos. 60, 61 of the 2011 Special Commission (Part I), available at < http://www.hcch.net/upload/wop/concl28-34sc6_en.pdf > (last consulted 15 May 2013).

[7] See regarding the Central Contact Points for international family mediation the Hague Conference website at < www.hcch.net >, under “Child Abduction Section”, then “Cross-border family mediation” and then “Central Contact Points for international family mediation”.

The Euromed Fiches

The tool developed by the European Judicial Network, the Fiches belges, represents a milestone in the framework of international judicial cooperation in criminal matters.

This cooperation instrument is based on a thematic structure divided in 8 fields:
1. Tracing and interception of (tele) communications;
2. Agents and informers – Infiltration;
3. Examination, body search and expert evaluation;
4. Documents – Obtaining;
5. Assets -Sequestration, confiscation and restitution; ­
6. Places – Visit and search;
7. Witnesses, victims, suspects – Summoning and hearing; and
8. Cross-border operations.

Across these various fields a series of questions was introduced that once duly answered, allow for a fast and simplified access to the regulation of each beneficiary country with regards to a given investigative measure. In order to have an equivalent content regarding the beneficiary countries of the Euromed Justice III Project, and with the kind cooperation of the EJN, information provided by the experts of the beneficiary countries participating in this activity was compiled and introduced in this document. Without the valuable support of these experts, it would not have been possible to develop the Euromed Fiches.

Finally, it should be noted that these non-binding fiches have a mere informative value and have no legal value.