The Court of Appeal has today, Friday 18 October, handed down a landmark judgment for the continued existence of discretionary forum powers for the English divorce court. It has said that the ECJ decision in Owusu has no relevance to divorce jurisdiction under Brussels II. It means that where there are concurrent divorce proceedings in England and any non-EU country, England still has the power to stay its proceedings on the basis that the other country has the closer connection with the family and so proceedings should go ahead in that country.
After much controversy and debate about whether Owusu applied to divorce and related family law proceedings, the Court of Appeal has firmly said that it does not. In our opinion this is excellent news and a correct decision. It means that a level playing-field remains between England and non-EU countries for a discretionary forum decision to be taken as to which is the more appropriate jurisdiction for family court proceedings. Sometimes these decisions are collaboratively taken by the English judiciary in conjunction with a judge dealing with the case in the other country. This is also to be highly encouraged.
The appeal was from the High Court decision reported as AB v CB  2 FLR 29. The appeal itself is Mittal v Mittal  EWCA Civ 1255. The Court of Appeal was comprised of non-family law judges, with Lord Justice Lewison giving the lead judgment, to which Rimer and Jackson LLJ concurred.
My firm, The International Family Law Group LLP, acted for the respondent husband with Tim Amos QC and Duncan Brooks of QEB. The appellant wife's lawyers were Dawson Cornwall with James Turner QC and Katy Chokowry. There was very little money involved. All counsel and solicitors acted pro bono and received commendation from the Court of Appeal as a consequence. We were very conscious this was an important issue for the international family law community, both in England and Wales and across the world.
In summary, the parties were born in India, are Hindu and Indian nationals, married in India with a child born in India and lived initially in India, spending a relatively short time in England, before all returning to India. There were divorce proceedings in India in August 2009 commenced by the husband, and English divorce proceedings commenced by the wife in December 2011. It was acknowledged that India had jurisdiction and considered itself the appropriate forum. Orders of the India court would be recognised in England, if that should be relevant. The wife obtained a Hemain stay of the Indian proceedings and argued that the appropriate forum was England. At the first instance High Court decision, when the wife had the benefit of legal aid, she argued unsuccessfully that England had to take these proceedings, with no discretion to decline them, based on the Owusu point. She appealed to the Court of Appeal, with leave for appeal being given on this issue because of its importance.
It was fully acknowledged by specialist family lawyers dealing with international cases that it was fundamentally important for this issue to be resolved by an appellate court. Previously there had only been two High Court family law decisions, which had held that Owusu did not apply to divorce forum and jurisdiction. There had been supportive comments from other judges. But equally there had been criticism in some quarters of those High Court decisions, including from Dicey and Morris. Moreover, in civil litigation there had been unhappiness that Owusu allowed no discretion in Brussels I cases. So an appellate decision was needed.
In the Court of Appeal hearing last Thursday, James Turner QC argued that England no longer had any opportunity to stay its own proceedings where jurisdiction was based on Brussels II, Art 3, as are most divorces. He argued that discretionary forum only survived in respect of the narrow jurisdiction in Art 7, the so-called residual jurisdiction of sole domicile. He did so by reference to specific words, added when Brussels II was introduced, into DMPA 1973, Sch 1, para 9, which sets out the discretionary power of the English court to decide that proceedings would be more appropriate in another jurisdiction. This is the so-called forum non conveniens principle. If that argument had succeeded, it would leave discretionary forum available in only very few cases. He also argued that Owusu, as decided by the ECJ in respect of Brussels I, was applicable by extension to Brussels II. There were also other arguments, as recorded in the Court of Appeal judgment.
Tim Amos QC, resisting the appeal, argued successfully that in non-EU cases, England still retained discretionary forum criteria, so that proceedings could go ahead in the non-EU country if more appropriate and with a closer connection. Of course within the EU, first to issue prevails without any discretion. He demonstrated that Owusu did not apply to Brussels II. Indeed he persuaded the Court of Appeal that the EU Maintenance Regulation is worded much more closely to Brussels II than Brussels I, leaving open the possibility that Owusu does not apply to maintenance proceedings, although this will be a matter for another decision. Tim Amos QC argued that there was no mandatory compulsion on the English courts to accept a case, even if they had jurisdictional opportunity to do so. This had been the entire Owusu issue before the ECJ, namely that if England had jurisdiction under Brussels I, it had to deal with the proceedings and that there was no discretionary choice. The Court of Appeal has now said that there is still a discretionary choice with divorce proceedings.
Lord Lewison examined the ECJ decision in Owusu and its possible interrelationship with Brussels II, including looking at the intended EU policy behind divorce jurisdiction and forum considerations. He found that there was a very considerable difference between the mandatory jurisdiction provisions of Brussels I under which Owusu was decided and the more permissive choice of jurisdictions under Brussels II. He felt it was not appropriate to extend Owusu to the circumstances of a divorce involving proceedings with a non-EU country. He was satisfied that the amendment made to DMPA 1973, para 9 at the time of the introduction of Brussels II does not demand that England must accept proceedings, if it considers that another country has a closer connection.
The Court of Appeal did not consider it was necessary to make a reference to the ECJ and took comfort in a French Cour de Cassation decision of 17 June 2009 (No 08-12456) referred to by Tim Amos QC and Duncan Brooks, involving a French Icelandic divorce where the French court stayed the French divorce proceedings in favour of prior divorce proceedings in Iceland, a non-EU country. Lord Justice Lewison concluded his judgment by saying: 'The conclusion I have reached cannot, therefore, be regarded as the peculiarity of an island race of common lawyers. It is one that is shared by our civilian colleagues in mainland Europe.'
The appellant applied for permission to appeal to the Supreme Court and permission was refused. It has not yet been confirmed whether the appellant will renew her application for permission before the Supreme Court.
We regard this as an excellent development for English law in international cases. We were pleased to act in resisting the appeal. It means that in all divorce cases where there are proceedings in England and proceedings in a non-EU country, there remains the opportunity for England to decide, in looking at all the circumstances, if the closer connection is with the other country and, in effect, direct that the proceedings should then proceed in that country. This is totally reasonable because across many non-EU countries, especially the common law, they have the same or similar law so that there is generally a level playing-field in deciding these forum disputes. To have one law applying in the EU, and one law applying outside the EU, would be complete chaos and produce much unfairness to those international families with England and non-EU connections.
A fuller report on the detail of the decision will follow from my colleague, Stuart Clark, in Jordans' Family Law journal and International Family Law. If any lawyer would like more details, please contact us.
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.
David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on email@example.com.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.