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.