Forum Conveniens, BIIR and Owusu-v-Jackson

The Court of Appeal on Friday 18 October, handed down a landmark judgment for international families with connections to England and non-EU countries who are divorcing. The decision confirms that where there are divorce proceedings in both England and a non-EU country, the English court retains the discretionary power to decide that it is more appropriate for the proceedings to take place in the other country and accordingly to stay the proceedings in England on forum non conveniens grounds. Many non-EU countries around the world apply a similar test when deciding in which forum the proceedings should take place. There was much debate following the controversial decision of the European Court of Justice in Owusu v Jackson (2005)in which the ECJ said that the discretion to stay proceedings no longer existed in cases where England or other EU countries had jurisdiction under an EU Regulation to hear proceedings. The question of whether it applied in family law, particularly divorce, has been debated since. The appeal, which will be reported as Mittal v Mittal [2013] EWCA Civ 1255, The Court of Appeal was comprised of a non-family law bench, with Lord Justice Lewison giving the lead judgment to which Rimer and Jackson LLJ concurred.

Legal Aid in International Cases: The latest on the legal aid consultation.

Paras 125 of Annex B sets out some specific exemptions to the ‘residence test’. The exemptions are made by reference to particular paragraphs of Schedule 1 of LASPO. (a) Forced Marriage cases will not be covered by the 1 year residence test. (b) Various child protection cases will not be covered by the 1 year residence test including care (LASPO Sch 1, para 1) child abduction cases (para 10) (c) Inherent jurisdiction will not be covered by the 1 year residence test. We consider it to be significant that there is no express reference to Paragraph 17 of Sch 1, LASPO which deals with 1980 Hague and BIIR matters. However to confuse matters at para 116 of The Response it is stated that ‘...we would ensure that legal aid would continue to be available where necessary to comply with our obligations under EU or international law set out in Schedule 1 to LASPO .’ Para 17 of Sch 1 of LASPO is titled’ EU and international agreements concerning children’. However it is not apparent what the MoJ consider their obligations to be. Arguably this would only cover Applicants for 1980 Hague orders or which fall under Art 50 BIIR. This might therefore mean that all Respondents’ to 1980 Hague applications and all applications under BIIR (Art 11(6-8), registration and enforcement applications not covered by Art 50) would be subject to the 1 year residence test. For most of them (save in settlement cases) they would fail a residence test. Given the complexities in these cases this would be counter-productive to the efficient handling of them. There is an argument that 1980 Hague cases are also in the Inherent Jurisdiction and so would be ok. Although many 1980 Hague cases are also entitled ‘In the Inherent Jurisdiction’ we are not sure that they truly are within that. The Tipstaff orders are often framed in that jurisdiction but arguably are made under Section 5 CACA 1985 and Article 7 1980 Hague. The recent guidance from the President about drafting orders specifically disapproves of the use of ‘In the Inherent Jurisdiction’ as part of the title. In reality the ‘Inherent Jurisdiction’ plays a minor role in 1980 Hague cases (save for unusual circumstances; for instance where 1 child is not covered by the Hague and a return is sought under the Inherent Jurisdiction. I very much doubt that the Legal Aid Agency will accept applications for inherent jurisdiction certificates where the primary application is under the 1980 Hague Convention. The legal aid certificates granted to applicants are to make an application under the 1980 Hague Convention/Child Abduction and Custody Act 1985 and do NOT refer to the Inherent Jurisdiction. Issues have arisen in the past when ‘dual’ applications have been made for Applicants, or where reference is made to the Inherent Jurisdiction because legal aid is non-means non-merits for the 198 Hague/CACA but is means and merits tested for Inherent Jurisdiction and the LSC has then questioned whether there should be apportionment of costs etc. I doubt that the LAA will accept applications for inherent jurisdiction certificates to defend a Hague. We will be responding seeking confirmation of express exemption of matters falling within Para 17 of Sch 1 of LASPO. I am afraid we are working on the assumption that the failure specifically to exempt all matters falling under Para 17 is significant (rather than inadvertent) and that the residence test would apply save where there are very tightly defined ‘obligations’ to provide Legal Aid. Inherent jurisdiction is not likely to provide a life-boat. Annex B ‘s get out clause is that if you, as a legal aid provider, think that failure to grant legal aid as a matter falls outside of scope would be a breach of EU / International law, they expect you to make an application for exceptional funding under section 10 of LASPO. In the context of an applicant or a respondent to a Hague convention case this would mean that we would be expected to explain to the LAA why failure to grant funding would amount to this breach. I don’t think the exceptional funding provisions are intended to apply to entire categories of case but instead are intended to apply to individual cases which warrant funding on their facts so that obligations under EU / International law can be met. The arguments you would made for the grant of exceptional funding would always be the same in an abduction case. Which I think means that s.10 LASPO is not an appropriate safeguard to ensure that abductions are funded.