(Court of Appeal; Thorpe and Wilson LJJ; 9 April 2008)
The mother and the very wealthy father had cohabited for 7 years; they had two children together. The mother removed the children to New Zealand, but then applied to the English court under Children Act 1989, Sch 1, para 14, for periodical payments in respect of the children. The district judge stayed the mothers application, on the basis that the New Zealand courts, which had already dealt with custody, were far better placed to make an assessment of the needs of the children and to make all future provision for their support. The mother sought permission to appeal, and to amend her grounds of appeal, arguing that the European Court of Justice case, Owusu v Jackson Case C-281/02  had established that the English court did not have jurisdiction to stay a non-EU case on the basis of forum non conveniens, having decided that if jurisdiction was conferred on an EU state by virtue of an EU convention or regulation, the state must exercise that jurisdiction.
Refusing permission to appeal, the court noted that there were contrary arguments in relation to Owusu that might have to be referred to the European Court of Justice, and that the UK was currently trying to mitigate the unattractive effect of Owusu by submissions as to the operation of the Regulation in the current review. To admit the Owusu point for consideration by the full court would have unpredictable consequences, which might be very expensive, and in any event sterile if the UK succeeded in its submissions. In any event, further litigation would be disproportionate, given that the father had already given an undertaking to pay £50,000 pa.