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EU Law and English Family Law : Where do we now stand?

In a new series of regular updates on international family law, Tim Scott QC and Clare Renton of 29 Bedford Row review recent cases touching on the interaction of the English courts and EU regulations.

image of timothy scott qc 29 bedford row picture of clare renton

Timothy Scott QC and Clare Renton, 29 Bedford Row

Brussels I
The 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters was brought into English law by the Civil Jurisdiction and Judgements Act 1982. It expressly excluded from its ambit "rights in property arising out of a matrimonial relationship". However, it included maintenance. This distinction was considered by the European Court of Justice in Van den Boogard v Laumen [1997] 2 FLR 399 and more recently by the Court of Appeal in Moore v Moore [2007] EWCA Civ 361; 2 FLR 339. Maintenance can include a lump sum and probably also a transfer of property order if the court's purpose in making the order was to provide a home for the applicant in the nature of maintenance.

In 2001 the Brussels Convention was substituted by Council Regulation No. 44/2001, known also as the Brussels I Regulation, which is substantially the same. The Brussels Convention (and the parallel Lugano Convention) are still in force in relation to a few countries, including Denmark and Switzerland.

In Prazic v Prazic [2006] EWCA Civ 497; 2 FLR 1128 divorce proceedings were continuing in France. However, a substantial part of the matrimonial assets consisted of two properties in England which were in the husband's name, but in which the wife claimed an equitable interest. There was also a third property which had been sold and W claimed an interest in the proceeds of sale.

W issued TOLATA proceedings in England in relation to these assets. H applied to have these proceedings stayed under Article 27 or alternatively Article 28 of the Judgements Regulation. The application for a mandatory stay under Article 27 did not succeed at any level.

The application under Article 28 depended on whether the TOLATA action amounted to 'related proceedings' for the purposes of Article 28 and, if so, how the discretion conferred by Article 28 should be applied. The District Judge ordered a stay. Pauffley J reversed that on appeal.

In the Court of Appeal the stay was restored. Although Pauffley J had decided that the TOLATA proceedings were complementary to, rather than competitive with, the French divorce proceedings, the Court of Appeal took the opposite view and in effect told the wife to get on with arguing her claims in France.

Articles 27 and 28 of the Judgements Regulation were also central in J v P [2007] EWHC 704 (Fam); (2007) Fam. Law 560, which concerned maintenance for the child of unmarried parents. The Italian father started proceedings in Italy in July 2006. The mother made an application under Sch. 1 Children Act in October 2006. The father applied to stay these under Article 27 or alternatively Article 28. The mother resisted this on various grounds.

Sumner J granted the stay, though with reluctance. He held that the facts fell within Article 27 and a stay was thus mandatory. The proper forum for the mother to raise her arguments was the Italian court. In the alternative he would have granted a discretionary stay under Article 28. He accepted the father's argument that the discretion conferred by Article 28 was not to be exercised on forum conveniens / de Dampierre principles, but to further the scheme of the Regulation by avoiding conflicting and contradictory decisions.

Brussels II Revised
Council Regulation (EC) No. 2201/2003 ("BIIR") came into force on 1 March 2005 in all Member States other than Denmark. It is also in force in all the subsequent accession states: i.e. 26 in all. The provisions of Brussels II relating to matrimonial proceedings remain unchanged, though the numbers of most Articles have changed. The principal changes relating to children are that:-

• The rules on recognition and enforcement are extended to all decisions on parental responsibility.
• Specifically decisions on access are automatically recognised and enforced by other Member States.
• The Hague Convention on child abduction is in effect amended in relation to abductions between Member States.

Divorce jurisdiction
BIIR gives rise to some surprising situations. For example two Bulgarian nationals who have lived here together for many years, have not visited Bulgaria for years and own property in London may divorce in Bulgaria. The Bulgarian petition, if first in time, must prevail if properly constituted and little can be done to help the bemused Respondent who would like to claim ancillary relief in England having ascertained that she will get very little in Bulgaria.

Pleading the correct ground

Rule 2.3 FPR 1991 and Appendix 2 require that where it is alleged that the court has jurisdiction under the Council Regulation, a petition shall state the ground of jurisdiction under Article 2.1.

In Rogers-Headicar v Headicar [2005] 2 FCR 1 three grounds of jurisdiction under Article 2.1 had been pleaded. At a late stage the wife applied to amend so as to rely on a fourth ground of jurisdiction in substitution for the three grounds previously pleaded.

Wilson J allowed the amendment on terms as to costs. The husband appealed. In the Court of Appeal Thorpe LJ stressed the independent responsibility of the court to investigate and determine of its own motion whether it has jurisdiction under Brussels II. Consequently the way in which the matter is pleaded is of little importance:-

"Plainly the provisions of the Rules cannot begin to regulate or, in any way, limit the essential function and responsibility of the court to uphold the intention and effect of art 2 of these regulations." (Paragraph 15)

Getting past the post first
A case which has raised a number of issues under BIIR is L-K v K. Mr K is French. Mrs L-K is Singaporean with dual French nationality. The marriage broke down as Mr K was being posted from Tokyo back to London where the couple had lived previously. Mrs L-K and the child moved into the flat which Mr K's bank made available on a temporary basis.

About one month after the return to England Mr K started proceedings in Paris on the same morning as Mrs L-K started proceedings in London. It was agreed that if the French court were first seised, it has jurisdiction. Mr K denied habitual residence and thus disputed that the English court had jurisdiction even if it was first seised. The Paris court decided the first in time issue in favour of the London court. That decision was upheld on appeal. In L-K v K (Brussels II Revised: Maintenance Pending Suit) [2006] EWHC 153 (Fam); [2006] 2 FLR 1113 Singer J held that he had power to order MPS (including an A v A legal costs element) in spite of the then unresolved dispute over whether the English court had jurisdiction.

Habitual residence
In L-K v K (No 2) [2007] 2 FLR 729 Singer J accepted that under BIIR the approach to habitual residence should be that which has evolved in the ECJ in benefits cases rather than the domestic English approach.

In Marinos v Marinos [2007] EWHC 2047 (Fam); 2 FLR 1018 Munby J reviewed the European authorities in greater detail and came to the same conclusion as Singer J. S5(2) Domicile and Matrimonial Proceedings Act 1973 (as amended) makes BIIR the primary basis for establishing jurisdiction in all matrimonial suits. So in any suit where habitual residence is in issue it is now necessary to turn to EU law rather than the domestic English test.

The EU test of habitual residence is very similar to the English domestic test, and in the great majority of cases would lead to the same result. For a full discussion of this topic see: 'Where does our client live? Habitual Residence and Residence under Brussels II (Revised) after Marinos' by Nicholas Allen of 29 Bedford Row, published on Family Law Week.

L-K v K illustrates that under BIIR different issues in the same case can be tried in different Member States. It also illustrates the artificiality of that part of Paragraph 8 of the Preamble to BIIR which provides that "this Regulation should apply only to the dissolution of matrimonial ties and should not deal with issues such as … property consequences of the marriage". The reality is that Mr and Mrs K entered into a 'separation de biens' agreement before their marriage. If the divorce had proceeded in France Mrs L-K's rights would have been extremely limited. In England she may be entitled to a very substantial award. The difference depends on which proceedings were lodged first in time – possibly by no more than half an hour either way.

In the most recent chapter of L-K v K Baron J permitted Mrs L-K to proceed to Decree Absolute even though Mr K's further appeal to the Cour de Cassation on the first in time issue was outstanding; it was plain that he was not progressing this expeditiously. Her decision was upheld by the Court of Appeal: Leman-Klammers v Klammers [2007] EWCA Civ 919; [2007] All ER (D) 188.

Although discrete issues can be decided in the courts of different Member States, the English courts have stressed that:-

• English courts must not act or seem to act as appellate courts from decisions made in other member States: Wermuth v Wermuth (No 1) [2003] 1 FLR 1022.
• English courts should avoid deciding points of law or procedure of other Member States. They should defer to the courts of the State in question: Chorley v Chorley [2005] EWCA Civ 68; [2005] 2 FLR 38; and Bentinck v Bentinck [2007] EWCA Civ 175; [2007] 2 FLR 1.

Children jurisdiction
Although the provisions of BIIR relating to divorce jurisdiction are substantially the same as under Brussels II (subject to re-numbering) the provisions relating to children are much wider. This is where the real change has come. Section 2 of the Regulation (Articles 8 to 15) creates a scheme for jurisdiction in matters of parental responsibility which is much closer to the scheme for jurisdiction for divorce in Section 1 than was the case under Brussels II.

Article 15 provides that 'by way of exception' the courts of a Member State having jurisdiction may suggest a transfer of the case to another Member State if the child has a particular connection with that state and it would be in the best interests of the child. Article 15 (3) sets out the factors which would give rise to 'a particular connection'.

In Re EC (Child Abduction: Stayed Proceedings) [2007] 1 FLR 57 Charles J made an order under the Hague Convention for the return of a child to Hungary. However, in anticipation that the Hungarian court might make an order for transfer back to England under Article 15 he directed a CAFCASS Report.

The Court of Appeal reversed this. Thorpe LJ said (Paragraph 18) that he knew of no case in which Article 15 had been successfully invoked and that: "I suspect that as far as the civil law jurisdictions are concerned, it will be a truly exceptional case before they invoke Article 15." This reflects the fact that discretionary powers, which lie at the heart of most aspects of English family law, are much less widely used, and indeed regarded with suspicion in most continental European jurisdictions.

Child Abduction
Article 11 contains provisions which have to be read in conjunction with the Hague Convention. Article 60 provides that BIIR is to have precedence over a number of multilateral Conventions including the Hague Convention.

Article 11(3) provides that 'the most expeditious procedures available in national law' shall be used. Save in exceptional circumstances judgment must be given no more than six weeks after the application is lodged. This will be considered below.

Article 11(6) – (7) provide a code which must be followed by a court which refuses to order the return of a child under Article 13 of the Hague Convention. The code is intended to promote cooperation between the Member State where the child is now living (and which has refused to order a return) and the Member State of former habitual residence.

Article 11 (8) provides that even if the courts in the country to which the child has been abducted refuse to order a return, a court having jurisdiction under the Regulation can nevertheless order a return and such order shall be enforceable. This in effect gives two bites of the cherry to the left behind parent.

The interaction of Article 11 and the Hague Convention was considered by the Court of Appeal in Vigreux v Michel [2006] 2 FLR 1180. The father had abducted the child from France to England and McFarlane J had declined to order a return on the basis of the child's objections. The mother, who had been granted custody by the French court, appealed.

Thorpe LJ was extremely critical of the eight month delay between the start of the English proceedings and the appeal. Although such delay is not uncommon in Hague cases, he treated it as a serious breach of Article 11(3). He stressed (with the prior approval of the President) that Article 11(3) must be taken literally. Six weeks is the maximum, even though, as he acknowledged, this will often mean taking previously fixed cases out of the list. However, experience since Vigreux v Michel suggests that the six week timetable is still not always complied with.

Two article 11(8) 'second bite' cases have come before the courts. In Re A (custody decision after Maltese non-return order) [2007] 1 FLR 1923 Singer J ordered the return of a child from Malta after the Maltese court had upheld an article 13(b) defence. The case turns largely on the English court's very different assessment of the evidence.

In Re A, HA v MB (Brussels II Revised: Article 11(7) Application) [2007] EWHC 2016 the application was under article 11(8) but gave rise to issues under articles 10 and 11(7). Singer J's judgment is long and important for abduction practitioners, in that he gives practical guidance on what the court can do and how upon an article 11 application.

Stays of proceedings
In Owusu v Jackson [2005] 2 WLR 942 the Claimant suffered very serious injuries while on holiday in Jamaica. He started proceedings in England in which he joined a number of Defendants, some of which were Jamaican. The Jamaican Defendants applied to stay the English action on the ground that Jamaica was the forum conveniens: no proceedings had been started in Jamaica.

A deputy High Court Judge held that he had no power to stay the action. Jurisdiction had been founded in England as of right under the Brussels I Regulation, and as a matter of EU law the English court could not decline to exercise that jurisdiction even though no other Member State was involved. This was upheld by the European Court of Justice. The power of the English courts to stay their own proceedings on the ground of forum conveniens has in effect been removed.

Owusu has been heavily criticised by most English commentators. Does it have an impact on family law? On one view it does. The jurisdictional provisions of Article 3 of BIIR are very similar to the jurisdictional provisions of the Brussels I Regulation which were under consideration in Owusu. It can thus be argued that the power to stay an English divorce suit has also been removed.

However, Owusu is very unpopular with English Judges and academics. The English courts will be reluctant to extend its application if that can be avoided. It may well be that they will feel able to do so on the basis that:-

• In the judgment in Owusu the ECJ specifically left open the position where there are concurrent proceedings in the other jurisdiction, as would always be the case in applications for a stay of divorce proceedings under Sch.1 to the Domicile and Matrimonial proceedings Act 1973.
• The power to stay under the DMPA is a statutory power rather than a common law power.