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David Hodson sets out information of an appeal to be heard by the Court of Appeal in early October on the Owusu issue, a matter of considerable importance to the English and international family law professions on divorce forum disputes with non-EU countries.
It is now public knowledge that the ECJ decision of Owusu as it relates to family law is going to the Court of Appeal, having only previously been considered at High Court level. Other cases are known to be waiting for the outcome of the appeal. Other lawyers may not be aware that it is going on appeal and yet have cases where discretionary forum is an issue. Accordingly, I am setting out what is happening for the information of the family law profession. My firm is acting for the respondent opposing the appeal.
On Monday the Supreme Court in their judgment of Re A (a child) (2013) UKSC 60 at para 33 per Lady Hale said:
‘In the context of matrimonial proceedings, it has twice been held in the High Court that Owusu v Jackson does not prevent the court from invoking the statutory power ... to stay proceedings here if there are already proceedings in a non-Member State: see JKN v JCN (Divorce: Forum)  EWHC 843 (Fam);  1 FLR 826 and AB v CB  EWHC 3841 (Fam);  2 FLR 29. We are told that permission to appeal has been granted in the latter case. It would therefore be unwise of us to express a view on the position in children's cases, which might well require us to make a reference to the Court of Justice. The relevance of Owusu v Jackson is merely to reinforce the conclusion that the jurisdiction provisions of the Regulation do indeed apply regardless of whether there is an alternative jurisdiction in a non-Member State.'
The appeal hearing is in the Court of Appeal on 10 October 2013. The appellant wife is seeking to overturn the decision of Bodey J in AB v CB on the Owusu point. The respondent husband is opposing. The issue is of considerable importance for international family law worldwide, including for English family lawyers.
Owusu  QB 801 was a decision of the European Court of Justice in civil proceedings that a contracting EC state cannot refuse a domiciled person from bringing proceedings in that state's courts. This applies regardless of whether the competing state is in the EU or outside. The ECJ said there was no opportunity of forum discretion, the English criteria of balance of convenience, forum non conveniens, or however the discretionary test is described. The location of the proceedings was mandatory. This decision was under Brussels I.
Ever since there has been uncertainty and controversy about whether in a divorce case involving a non-EU country there was still discretion for the English courts to allow the proceedings to go ahead in another country if the forum balance of convenience etc was with that country. The statutory provision is Domicile and Matrimonial Proceedings Act 1973, Sch 1 Para 9. It is a much used law in forum disputes with non-EU countries. High Court decisions have said that Owusu does not apply to divorce jurisdiction and that the English court retains its discretion provided in statute. But these have been only first instance and the controversy has remained. Does England have any residual discretion in forum disputes involving non-EU countries? Does the 1973 discretionary forum law still apply? Has it been overcome by EU legislation?
Permission to appeal was given by Black LJ in the most recent High Court decision by Bodey J in an Anglo-Indian case.
Although we were not involved at first instance, I was asked to act for the respondent. Unfortunately it is a case with very little financial wealth and therefore my firm agreed to act on a pro bono basis because it is so important for the international family law profession, including in England. We are delighted that Tim Amos QC and Duncan Brooks of QEB have agreed to be counsel on such a vital case, also on a pro bono basis.
The appellant wife's lawyers at first instance were Dawson Cornwell who are also acting pro bono, along with 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 this appeal. If any solicitors or counsel would like to know more in order to help the progress of their own cases, please contact me or my colleagues, Stuart Clark and Anna Simmonds. A primary purpose of this note is information sharing for the benefit of the profession.
A full note by us of the outcome and its implications will be published by Jordans after the appeal.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.
David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on firstname.lastname@example.org.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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