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Lachaux v Lachaux [2019] EWCA Civ 738

An appeal against the recognition of a divorce in Dubai and against the dismissal of child arrangements order.

The case concerned an appeal by the mother/wife against the recognition of the parties' divorce in Dubai, and the dismissal of her claim for a child arrangements order. The wife was a British citizen and the father a French citizen. The essential issue was whether their overseas divorce should be recognised in this jurisdiction, and subsequently whether a custody order made in those proceedings meant that the English courts had no jurisdiction to make a child arrangements order under the Children Act 1989. Lord Justice Moylan gave the leading speech rejecting the mother's appeal and upholding the judgment of Mostyn J.

The wife's reason for challenging the recognition of the divorce was not that she did not want to be divorced from the husband, but that a 'custody order' had been made within those proceedings granting the father 'custody' of the parties' child. The mother had failed to attend a number of hearings in Dubai and was not represented at the final hearing when the orders were made. Throughout the proceedings there were times when the mother had gone into hiding with the child.

Using what Moylan J described as a poorly translated judgment, the Court of Appeal examined what had happened in the Dubai proceedings. The court in the UAE had concluded that the mother had known about the hearings. The court rejected the mother's application that it should apply 'British law' because "she was late to provide that after she and her advocate were given enough time". The Dubai court also stated that that the mother "does not obey" the father; that she was "careless in taking care of the child and fulfilling her marital duties"; and that she was always spending "nights at nightclubs with friends". It also stated that the mother "prevents" the father from seeing L." Therefore the divorce was granted [40].

During the appeal, there were concurrent proceedings in France. The divorce had been refused recognition there as being contrary to public policy. This decision was the subject of an appeal by the husband in France, but as there was no date for this the English court had decided to proceed.

After a review of the authorities, the Court of Appeal concluded that non-recognition on the ground of public policy required a high threshold to be crossed. Of particular relevance would be the connection to England and Wales, the reason for seeking a divorce in the other jurisdiction (for example if this was to avoid any rights the other spouse would acquire on divorce, and the impact on recognition of those rights. [96]

The Court of Appeal found that Mostyn J was entitled to undertake research into the law in Dubai, noting that there was no expert evidence provided to the court. The trial judge informed the parties of his research and provided copies. The Court of Appeal concluded that, whilst the conclusions on Dubai law were not based on solid ground, the overall conclusions were not undermined [159]. His conclusions were based on his "assessment of what actually took place" after hearing evidence from the parties. This also led the Court of Appeal to reiterate the principle that it would only be in exceptional circumstances that an appellate court would interfere with findings of fact made by a trial judge [162]. The court therefore refused to interfere with the findings made by Mostyn J regarding the mother's ability to participate in the Dubai proceedings and her conduct throughout.

The Court of Appeal then looked at the factors identified from the authorities, and found that given that the links to the jurisdiction of Dubai were stronger at the time than any other jurisdiction and that both parties had invoked the jurisdiction of the court (in fact it was the wife had first mentioned it). Notably, the wife relied on sharia law principles during the Dubai proceedings. The court further concluded that the discriminatory content "did not sufficiently affect the Dubai divorce as to render recognition contrary to public policy." [179]

The Court of Appeal rejected the argument based on estoppel due to the French judgment. The 'underlying findings' made could not be separated from the issue of public policy, and public policy in this context was an issue for English law.

Another issue raised on behalf of the mother was that the Dubai proceedings lacked an independent welfare assessment of the type conducted by CAFCASS in this jurisdiction. The Court of Appeal agreed with Mostyn J that it was difficult to see how a CAFCASS officer would have been used in such a case, given the fact that the mother was 'on the run' for a substantial part of proceedings.

A further issue arose as to what was meant by the expression "in or in connection with matrimonial proceedings or civil partnership proceedings" in section 2(1)(b)(i) of the Family Law Act 1986. The court held that Mostyn J was wrong to conclude that, even if the wife was entitled to bring divorce proceedings in England, the jurisdictional requirement would not be met because "her claim under section 8 of the Children Act 1989 is not made either in, or in connection with, her divorce proceedings". [61] The matter was not material to the outcome of the appeal, however this discussion may be relevant in future cases regarding recognition and non-recognition of marriages and the prevention of so-called 'limping' marriages.

The court concluded by stating that the mother's case appeared to be that she could not bring welfare proceedings in any other "forum", but the court was not in a position to determine this. Nevertheless, this was taken into account by Moylan LJ at [183]: "However, because I acknowledge there might be significant obstacles to the mother pursuing these courses, I would add that, even if they do not enable the mother to access justice for parental responsibility proceedings, as Mostyn J referred to, at [6], there is a route by which "in exceptional circumstances" the English court will accept jurisdiction in respect of a British national child who lives in another country."

Summary by Rebecca Davies, Barrister, Field Court Chambers

Full Judgment: Lachaux v Lachaux [2019] EWCA Civ 738 via BAILII