We reported last month that the question of how the ECJ decision in Owusu relates to family law, especially divorce, was due to be heard by the Court of Appeal. It has previously only been considered at High Court level. This note is intended by way of update.
On 10 October 2013, the decision in AB v CB  2 FLR 29 on the relevance of Owusu was before Rimer, Jackson and Lewison LLJ in the Court of Appeal for oral hearing. No date has yet been set for judgment and the appellant has sought to obtain a reference for a preliminary ruling from the CJEU. We set out below an element of the respective arguments and implications.
The outcome is eagerly anticipated by the family law profession in England and Wales and internationally. It is understood that a number of other High Court cases have been put on hold pending the outcome of this appeal. It is being closely followed in other common law jurisdictions and across Europe as its consequences will be significant and potentially wide-reaching. It affects all divorce cases involving any non-EU country.
The issue before the Court of Appeal is whether or not the English court retains any discretion to stay properly constituted English divorce proceedings in favour of proceedings in a foreign (non-EU) jurisdiction with which there is a closer connection.
Section 5 and Schedule 1 DMPA 1973 provide that the English court may stay an English divorce petition where there are concurrent proceedings elsewhere in respect of the same marriage. DMPA 1973 sets out the statutory criteria which have been amplified in extensive case law.
Owusu v Jackson  QB 801 concerned a civil personal injury claim brought in England and Wales with potential ‘rival' jurisdiction in the Jamaican Courts. The applicant met the relevant jurisdictional criteria to bring proceedings in England but the defendants sought a dismissal of those proceedings on the basis that Jamaica was the more appropriate forum for the dispute. There were no proceedings in Jamaica.
The Court of Appeal referred the matter for a preliminary ruling from the CJEU as to whether:
It is consistent with the Brussels Convention [effectively Brussels I] ... for a Court of a Contracting State to exercise a discretionary power, available under its national law, to decline to hear proceedings brought against a person domiciled in that State in favour of a non-Contracting State:
(a) If the jurisdiction of no other Contracting State under the 1968 Convention is in issue;
(b) If the proceedings have no connecting factors to any other Contracting State?
The answer from the CJEU was clear and unequivocal: No!
It said a court of a contracting member state cannot decline jurisdiction and instead exercise a domestic discretionary power in favour of proceedings in another country in circumstances where the applicant meets the requisite jurisdictional criteria. Jurisdiction had been founded as of right under Brussels I and, as such, the English court could not decline to exercise that jurisdiction despite no other member state being involved.
This decision sparked intense academic debate and comment amongst practitioners, with many arguing that it had essentially removed the power of the English courts to stay divorce proceedings.
Owusu in the Family Courts
The Owusu point was considered in relation to divorce jurisdiction by Lucy Theis QC (as she then was) sitting as a High Court Judge in JKN v JCN (Divorce: Forum)  1 FLR 826 and by Bodey J in AB v CB  2 FLR 29. On both occasions the High Court found that the Family Court's discretion to stay properly constituted English divorce proceedings in favour of non-European proceedings on a forum non conveniens basis was not fettered by Owusu.
It is the latter case which is now under consideration by the Court of Appeal.
Where there are two competing jurisdictions (England and, in this case, India) and both hold the view that India is the appropriate forum for the resolution of proceedings, should the ‘rival' country be compelled to have the case litigated in England (either singularly or in parallel) pursuant to an EU law which is of no concern to that ‘rival' (non-EU) country? Should each of them be at liberty to pronounce their own divorce based only on who is first to do so without any stays?
As the appellant's case was developed before the Court of Appeal, it appears she is asserting that the only circumstance in which the English divorce court would retain any forum discretion under DMPA 1973 is where the petition is issued under the residual jurisdictional basis in Article 7 of Brussels II Revised, ie sole domicile.
In all other cases, ie under Article 3 jurisdiction, the appellant wife said England had to accept the case even though another non-EU country may have a closer connection and that there was no power to stop/stay the foreign proceedings. In effect it would be only a question of who got the final decree first in which country. Not so much a rush to issue but a rush to get the final decree. The respondent husband asserts that forum discretion remains in all non-EU cases.
Although my firm, The International Family Law Group LLP was not involved at first instance, we were instructed to act for the respondent on appeal. Unfortunately it is a case with very little financial wealth and we have appeared on a pro bono basis owing to the importance to the English and international family law professions undertaking international cases. We are delighted that Tim Amos QC and Duncan Brooks of QEB have agreed to be counsel, also on a pro bono basis. The appellant wife's legal team also acted pro bono on appeal. They are Dawson Cornwall, James Turner QC and Katy Chokowry.
We are aware that there are a number of cases involving divorce forum with non-EU countries which are waiting for the outcome of the appeal. If any solicitors or counsel would like to know more in order to help the progress of their own cases involving divorce forum with non-EU countries, please contact either me (email@example.com) or my colleague, David Hodson (firstname.lastname@example.org).
A primary purpose of this note is for information sharing for the benefit of the profession and other cases affected especially in light of the potential delay inherent in any reference to the CJEU for a preliminary ruling.
A full note by us of the outcome and its implications will be published by Jordans after the appeal.
020 3178 5668
10 October 2013
The International Family Law Group LLP