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David Hodson on International Family Law: Repatriation of EU family law powers, Part II
Sep 29, 2018, 21:00 PM
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Feb 15, 2013, 05:51 AM
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David Cameron has announced a referendum on the so-called "in or out" of the EU. But first, he said, there will be an attempt to repatriate some powers from the EU. Whilst some of us remain highly supportive of an EU trading bloc and other close connections, there is in places unhappiness about loss of historic, legal and other powers. In this four-part series, I examine areas where family law powers taken by the EU could (and should) pass back to the UK and other member states. Ironically, in three of the areas it does not concern the EU at all but is between member states and non-EU countries.
England and Wales decide our forum disputes on the basis of closest connection, forum non conveniens, taking account of a wide range of discretionary factors to find the best outcome. Of course since March 2000 this does not apply to inter EU divorce cases nor since April 2011 to inter EU maintenance cases. But still between England and Wales and the rest of the world outside the EU, we apply our discretionary forum criteria as do other countries of the common law tradition. Indeed, before March 2000, there was judicial condemnation of parties who engaged in tactical rushing to issue a petition first because closest connection was what mattered.
But do we still have any forum discretion? The EU seeks to stop us deciding our own appropriate forum law in non-EU cases.
To recap, we have forum discretion on divorce and nullity under para 9 Sch 1 DMPA 1973 (with consequential ancillary financial proceedings), discretion to permit financial claims after a foreign divorce under Part III MPFA 1984, forum discretion based in part on the best interests of the child under Sch 1 CA 1989 and discretion in other forum jurisdiction areas. We are limited in maintenance following the EU Maintenance Regulation, and my first opinion piece relates. But in all other areas, surely we still have our forum discretion alive and well?
Not if the EU has its way.
In the last decade our English civil litigation colleagues have been grappling with this issue following ECJ decisions. Then in Owusu , a case involving an Englishman having a swimming accident in Jamaica with no EU content, the Court of Appeal asked the ECJ to say whether a member state still had discretionary power for proceedings to be in another country, ie Jamaica as the closer connection country, against someone who was domiciled in a member state. Jurisdiction was in the civil litigation equivalent of Brussels II. In a strong judgment, the ECJ said there was no scope for the application of discretionary forum where a defendant (even one of many with the rest in Jamaica) was domiciled in a member state. Proceedings had to be in England even though the closer connection was elsewhere, outside the EU. This ECJ restriction has met with uproar and widespread criticism within civil litigation. But what about family law?
In Cook v Plummer  Thorpe LJ rightly recorded the views of many in the family law profession when he said that Owusu was "deeply unpopular" and the UK should seek to "mitigate its unattractive effect".
The issue came to the High Court in JKN v JCN , an England New York forum dispute, when Lucy Theis, then a deputy High Court judge, made very clear that para 9 discretionary forum criteria remained and Owusu was not analogous or to be applied to this sort of case. It was a powerful and much-needed judgment. But it had its critics including Dicey and Morris, arguably the leading textbook on private international law. We waited for the next battle.
In AB v CB  Bodey J had to consider the issue. He referred to the JKN judgement quoting sources where it had been variously described as "masterly" and "authoritative". He was resolutely adamant in supporting the JKN argument. He roundly rejected the submission that the English court has no discretion to exercise when determining a non-EU stay application. This was now a full-time and very experienced High Court judge giving support.
Importantly, he also referred to a recent commercial court decision, Ferrexpo v Gilson Investments  in which Andrew Smith J considered the Owusu jurisprudence and stated that he agreed with both the decision and reasoning of Lucy Theis, as above. So not only was the Family Division arguing in one direction, we had the encouragement of support from our commercial and civil litigation judicial colleagues.
Arguing in favour of Owusu is not dead. We still need an appeal court decision. But the opposition is now strong.
But the EU will not give up. The system of choice of the EU is civil law, with its emphasis on certainty and predictability at the cost of individual fairness based on the particular circumstances in the wide range of family law situations. The EU prefers first to issue, with its very many problems and injustice as known to many practitioners. The EU prefers to limit jurisdiction of member states, preventing opportunities for forum discretion, even in cases where no other EU member state is involved. This includes between two countries of the common law tradition, both operating forum criteria based on closest connection or similar. The EU wants to prevent the UK from having discretionary forum jurisdiction even though it cannot prevent the other, non-EU member state from operating its discretionary forum criteria.
In my first opinion piece I showed the EU demand that we had no jurisdiction for maintenance, needs, on the basis of sole domicile even in cases where the other non-EU country does have jurisdiction on that basis, creates an entirely uneven playing field between us and non-EU countries. The EU is trying to do the same with us on forum.
At the moment we only have an ECJ decision in a non-family law case. But the EU does not like our continued discretionary forum in family law. It can only be time before they seek to impose through Regulation binding on our national laws.
At this time when the UK and other EU governments are looking again at the extent of EU powers, it should be made very clear that EU member states should have freedom and sovereignty to decide their own laws in respect of forum issues with non-EU member states. We should no longer have constantly to worry about Owusu being imposed on our family law by the EU.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.