Select Committee on European Communities Fifth Report



  6.    The origin of the problem which caused the Germans to propose action at European Union level was generally believed to be a dispute between France and Germany which went back to Napoleonic times, at least in the sense that it derived from certain provisions of the French Civil Code by virtue of which the French court must entertain a petition for divorce brought by a French national[7]. France and Germany are not party to any convention, bilateral or multilateral, relevant in this context. Where divorce proceedings at the suit of a German spouse are pending before a German court the French spouse has the right to invoke the jurisdiction of the French courts at any time. A French court would not necessarily recognise the German proceedings and stay proceedings in France, though a German court would, it seems, be prepared to do so in the reverse situation. Professor Hartley said that France was reluctant to give up the rights of its citizens to have recourse to its courts except in the context of a general European Convention. All the Member States were thus drawn in to settle the problem. Professor Hartley accepted, however, that the problem was not necessarily restricted to Franco-German marriages but could affect citizens from other Member States (QQ 2-4).

  7.    Witnesses acknowledged the value of having a workable system for the international recognition of judgments affecting matrimonial status, in order to avoid the evil of "limping marriages" (marriages considered dissolved in one State but as still being in existence by another State) but were, in general, doubtful of the need for the proposed Convention, whether in relation to matrimonial matters or custody proceedings. Mr Miller, a trade policy analyst, criticised the proposal more generally for failing to take account of the needs of increasing non-European, non-Christian and post-modern practices of matrimony and in particular, for not containing a duty on Member States to recognise "minority marriages"(p 72). The Lord Chancellor's Department and the Scottish Courts Administration ("the Departments") said that they had been sceptical about the need for the Convention for two reasons: insufficient justification had been given for the proposal and the present (Franco-German) problems could be solved by those Member States becoming party to the 1970 Hague Convention (p 36). That Convention, although it had limitations, was generally perceived by witnesses to have operated successfully. It has effect both within and outside the European Union. Professor Lipstein thought that Member States should be encouraged to accede to the 1970 Convention (p 69). Others doubted whether this was feasible as a matter of practical politics. There was more likelihood of agreement on a new Brussels Convention. Dr Clive added: "Even the Hague Convention of 1970 is an imperfect answer to the problem because it does not lay down direct grounds for jurisdiction"(Q 6).

  8.    The President's International Committee[8] was not convinced that there was a need for the Convention. Mr Karsten said: "this draft Convention appears to have been planned with a view to removing a difficulty, arising from the fact that France has no doctrine of forum conveniens"[9]. The problems which had arisen between the French and German courts had not been experienced in or caused difficulty for the English courts (Q 79). This was confirmed by the Departments (Q 155). The Faculty of Advocates, on the other hand, considered that there was a need for the Convention. An increase in mobility of people had increased the number of marriages between persons of different national origins and the potential for cross-border litigation in matrimonial matters and parental responsibility. A uniform approach to questions of jurisdiction should decrease the risk of a multiplicity of actions with the potential for conflicting judgments (p 62). The European Commission ("the Commission") said that "the free movement of persons has not ... been accompanied by an equivalent free circulation of judgments". The consequent disadvantages were not merely theoretical. Cases concerning non-recognition of foreign divorces had been brought to the attention of the European Parliament and the Commission (p 57). Dr Clive thought that there was scope for a separate European Union initiative in this area and it was, in his view, to be welcomed (p 1). The Family Law Committee of the Law Society of Scotland ("the Law Society of Scotland") said that since there was no uniform ground of jurisdiction in relation to divorce in the European Union if there was to be "free movement of persons" throughout the Union then it was a legitimate objective of the Union to harmonise laws relating to jurisdiction and recognition of divorces (p 64). The Solicitors Family Law Association ("SFLA") believed that there was a need for the Convention in order to assist its members in giving clear advice and guidance in cases with competing foreign elements. It did not, however, believe that the present text accomplished this. Miss Keir, for the SFLA, said: "Unless this Convention has a very positive helpful clarifying impact, I think practitioners would say, "We should leave it well alone" "(p 25, Q 131).

  9.    The Departments had no strong objections of principle to the Convention which they recognised would be an achievement in the context of inter-governmental co-operation in the Union. They were therefore taking a constructive approach to the negotiations without prejudice, however, to the United Kingdom's right to veto the outcome if it proved unacceptable. Mr Watherston, however, said: "one has to be realistic. The fact that after 27 years there are still seven member countries of the Union which have not ratified the [1970]Hague Convention and they are not likely to do so in a hurry now...this project at least holds out the prospect of uniform recognition of divorce decrees throughout the Union"(p 37, Q 180).

  10.    Professor Hartley identified as one potential benefit of the Convention the fact that it would allow English and Scottish divorces to be more easily recognised abroad (Q 5). But in this context the President's International Committee drew attention to the difficulties often experienced by parties seeking to enforce outside the United Kingdom financial orders ancillary to the exercise of matrimonial jurisdiction (in particular English property adjustment orders and, to a lesser extent, lump sum orders). The proposed Convention would do nothing to solve these problems (p 21). The SFLA favoured the Convention dealing also with jurisdiction and recognition in relation to financial matters (Q 92). Dr Clive said that financial provision on divorce was a very big and difficult question. He doubted whether it should be included in the Convention, though it might be a question to be looked at on its own merits at a later stage (QQ 47, 48). The Departments said that there were a number of existing international instruments relevant to the recognition of ancillary financial relief (including the 1968 Brussels Convention) but acknowledged that these were not comprehensive and had not always operated successfully. However, Mr Watherston said that "a major problem about embarking on that area is the very great differences that there are between national laws on this subject". The financial consequences of divorce and their recognition were important in practice but "if we were to start to tackle that problem in this Convention we would still be at it in several years time" (QQ 165-6, 177).

  11.    The need for an effective system for the international recognition and enforcement of custody orders was also generally recognised as being of prime importance. The Departments said that the inclusion of custody orders in the Convention was a Franco-Spanish initiative seeking to raise the profile of the European Union and to make the Convention more comprehensive. A number of Member States, including the United Kingdom, have a special jurisdiction for divorce courts in relation to children. A convention on jurisdiction in matrimonial matters which did not make provision for them would, in the opinion of some Member States, be seriously incomplete. The United Kingdom had at first been opposed to extending the Convention in this way, but its arguments (based on absence of proof of practical need or benefit of inclusion and the developing policy and practice of divorce courts in these matters) had failed to persuade the majority of other Member States (p 37, Q 164).

  12.    Witnesses noted that the proposal went further than the Luxembourg Convention, in that it dealt with both jurisdiction and recognition, but was not as extensive as the 1996 Hague Convention, being limited to dealing with children in the circumstances of matrimonial proceedings. Many questioned the wisdom of the proposed Convention extending to deal with children involved in the matrimonial proceedings of their parents. Practitioners recognised that the issue was, however a difficult one. For the SFLA, Miss Keir said: "My instinct is that children should not be contained within this Convention, but if you are talking about jurisdiction in a matrimonial matter again inevitably questions about: who are the children going to reside with? What orders are the court going to make if it is announcing a decree of divorce? Inevitably the instinct is that they are going to make an order". Any discussion of the financial arrangements on the divorce would also bring in the interests of the children (QQ 106, 108).The Law Society of Scotland thought that it was sensible to have some provision in relation to children, though it was important to minimise any conflict between the proposed Convention and the 1996 Hague Convention (p 64).

  13.    Professor Beaumont said that the proposed Convention would not be needed if all Member States were to ratify the 1996 Hague Convention (p 55). Dr Clive agreed and said that the proposal "is only a partial solution at best to the problem of children and it is very incomplete ... the new Hague Convention at least is comprehensive and at least attempts to deal with all the problems". Mr Watherston, for the Departments, said: "we see no reason why that should not simply be allowed to apply instead of having provision in the Brussels II Convention"(Q 174). But Dr Clive thought that it was unlikely that all Member States would become party to the Hague Convention. There would, therefore, be some value in including children in the proposed Convention provided that the rules were the same as the Hague rules, or at least very nearly the same, with only such differences as were justifiable by the special nature of the Union. The only benefit, however, Dr Clive saw in the proposed Convention over the 1996 Hague Convention was the opportunity for the European Court to interpret and to bring in some uniformity of interpretation[10] (P 2, QQ 28, 31). The Departments said that so much time and effort had been put into the exercise that it was politically difficult to abandon at this stage (Q 175).


  14.    As a number of witnesses pointed out, it was not yet clear whether the Convention would be a Community Convention with its legal basis in Article 220 of the EC Treaty[11] or a Union Convention under the Justice and Home Affairs Pillar with its legal basis in Article K.3.2(c) of the TEU[12]. The Departments acknowledged that there were two alternative Treaty bases for the exercise and reported that in 1995 the Council Legal Service had opined that there was an overlap between them, that the Treaty establishing the European Community should, in principle, take precedence but that use of Article K.3.2.(c) would be "legally correct and applicable". As between the two, Mr Watherston said, there was no real significance. The Departments had not yet taken a final view on the issue. The Commission advocated Article 220 (p 58). Professor Arnull drew attention to the implications of the draft Treaty of Amsterdam for the question of legal base and the consequences as regards the role of the European Court of Justice (p 53) The Department said the changes to the Treaties proposed by the draft Treaty of Amsterdam were uncertain in their effect but, having regard to the time factor, were unlikely to be relevant (p 38, QQ 183-5).

  15.    Professor Beaumont said that there was a strong Community interest in securing free movement of workers and their families. A system of recognition of matrimonial judgments in the Community would facilitate the process of determining who qualifies as a spouse in terms of Article 48 of the EC Treaty and the relevant Community subordinate legislation. But no strong case had been made for saying that matrimonial jurisdiction rules had to be standardised in order to facilitate free movement. Professor Beaumont acknowledged that the 1968 Brussels Convention was much more central to the completion of the internal market (p 56). The SFLA believed that the Community had a role in promoting uniformity and certainty in the application of family law in all Member States (p 26). Dr Clive considered the proposed Convention to be "a legitimate and sensible way of seeking to foster judicial co-operation in civil law matters in an area of concern to many European citizens who enjoy freedom of movement within the Union but who, as a result, may experience personal problems" (p 2).


(i) Jurisdiction in relation to divorce etc.

  16.    Jurisdiction in relation to proceedings in England and Wales or Scotland for nullity, divorce or judicial separation is governed by section 5 of the Domicile and Matrimonial Proceedings Act 1973. The court has jurisdiction if either of the parties to the marriage:

Under the Convention jurisdiction would be dependent on the habitual residence of the parties or nationality of both spouses or joint domicile. According to Article 2.1, competence would lie with the courts of the Member State:

  17.    Dr Clive welcomed the strong emphasis on habitual residence in the Convention. It had the advantage of representing a real connection between the person and the country in question and was, for that reason, greatly to be preferred to nationality and domicile. The emphasis on habitual residence would not be a revolutionary change in the jurisdictional principles applied in the United Kingdom. Courts in the United Kingdom would have jurisdiction in almost all cases where they have it at present and would lack jurisdiction in almost all cases where they lack it at present. There would be a few cases where the United Kingdom courts would gain jurisdiction in relation to couples who had recently established habitual residence in the United Kingdom but who had not yet been habitually resident here for a year. In Dr Clive's view, this did not seem objectionable. More generally, he said: "at the moment the courts in this country have control over their own proceedings of course, but in reality they have very little control over what happens in other countries and there is a plethora of grounds for jurisdiction in other countries, some of which we would regard as undesirable and the whole thrust of this Convention is to bring some order into this and have only justifiable grounds of jurisdiction and thereby solve a problem which exists already. It does not create a problem; it helps to make it better" (p 2, Q 26).

  18.    Witnesses identified certain differences between the Convention rules and the current position in the United Kingdom. First, a number of witnesses expressed concern that the proposed grounds of jurisdiction would remove the present right of a spouse to commence proceedings founded on his or her own domicile. The Convention thus failed to provide adequately for the case of a woman (or man - witnesses typically gave the example of a woman but it was recognised that the potential problem was the same for a man) from the United Kingdom who marries a man from another Member State and goes to live with him there. If the marriage breaks down and the woman returns to the United Kingdom with the intention of remaining here, she would regain her English or Scots domicile, as the case may be, and could, as the law presently stands, straightaway petition for divorce. The proposed Convention would require her to reside in the United Kingdom for a year before she could present her petition. Her husband would be under no such delay in commencing proceedings in the other Member State and if he did so a court in the United Kingdom would have to decline jurisdiction (by virtue of Article 10, the lis pendens rule - discussed below) if the wife presented a petition here. To require her to wait a year might be to prejudice her interests. The Law Society of Scotland pointed out the practical implications as regards financial matters and interim or protective measures (p 64).

  19.    The President's International Committee acknowledged, however, that the domicile of the petitioner alone (as opposed to the domicile of the respondent alone) was not a ground of jurisdiction qualifying for recognition under the 1970 Hague Convention, although they believed that it did command recognition within a number of Commonwealth countries (p 22). Dr Clive was concerned about the implications of seeking to retain and include such jurisdiction in the proposed Convention. Other Member States would say that nationality ought to be treated on the same footing as domicile. If jurisdiction could be founded on the nationality of the petitioner that would, in Dr Clive's view, destroy much of the benefit of the Convention; "I would be very reluctant to see the United Kingdom pressing too hard or even at all for the petitioner's own domicile to be a ground for jurisdiction"( Q 16).

  20.    The Departments said that other Member States had been reluctant to accept the domicile of either party as a sufficient ground for jurisdiction under the Convention. Except in one set of circumstances, they did not believe that loss of this jurisdiction would matter and had not sought to defend it on a general basis. The exception concerned the international marriage where one spouse went to live in the country of the other and the marriage broke down after a short period. Together with two other Member States (Finland and Sweden) the United Kingdom had tabled a compromise proposal under which a court would have divorce jurisdiction based on the domicile or nationality of the petitioner provided that he or she had been habitually resident in that Member State for at least one year in the five years preceding the commencement of the proceedings. The Departments believed that this would cover the case of most spouses returning home after the breakdown of relatively short marriages and were cautiously optimistic that other Member States might agree to the limited change being proposed (p 38, QQ 186-7, 190).

  21.    Most witnesses were critical of the rules proposed in Article 10 (the lis pendens rules) for dealing with the situation where proceedings were begun in different Member States at or about the same time. All courts other than that first seised would be obliged to decline jurisdiction. Witnesses contrasted this rigid rule with the more flexible approach currently adopted by United Kingdom courts. Under the Domicile and Matrimonial Proceedings Act 1973 (section 5(6) and Schedule 1 and, for Scotland, section 11 and Schedule 3) a court in England and Wales or Scotland has a discretion to stay or sist proceedings where there are concurrent proceedings elsewhere in respect of the same marriage. The courts apply a doctrine of forum non conveniens (the 1973 Act refers to the court having regard, in the exercise of its discretion to stay proceedings, to "the balance of fairness (including convenience) between the parties") designed to ensure, so far as practicable, that the proceedings are brought before the courts of the most appropriate country.

  22.    The President's International Committee said that the proposed regime, modelled on Article 21 of the 1968 Brussels Convention, seemed retrograde when compared with the system which has evolved in this country and did not consider the 1968 Convention an appropriate precedent for two reasons. First, the exercise of matrimonial jurisdiction was not normally limited to a single cause of action, as in the case of a civil claim; it would be likely to encompass other matters, notably finance and children. Second, the proposed Convention contained a wider range of elective bases of jurisdiction than the 1968 Brussels Convention, thus increasing the chances of a forum race. Mr Karsten emphasised the importance in practice of the implications for the financial consequences of divorce proceedings. The choice of forum can make an enormous difference because the approach to the quantum of financial relief varied considerably from one country to another and, despite the existence of international conventions, the enforcement of financial orders (periodical payments, lump sum and transfer of property orders) following divorce presented serious problems. He accepted that it might theoretically be possible for a court under the proposed Convention to take jurisdiction over the divorce but to decline, in favour of another court, to deal within the ancillary financial matters but questioned whether that other court would necessarily have the power and if so would wish to act in such circumstances (p 21, QQ 83, 88, 91, 92, 96).

  23.    Witnesses thought that a "first come, first served" rule might cause a rush or race to the courts, which would be contrary to the policy behind the recent reforms of English divorce law[13]. For the SFLA, Miss Keir said: "It is a backward step when you consider that the Family Law Act is rightly promoting mediation and non-litigation resolution". As a number of witnesses also pointed out that, if it came to a race to the courts, the petitioner before the English courts would not, at least in the future, be well placed to win, given the recent changes to the law. Under the Family Law Act 1996, yet to be brought into force, there would be a compulsory waiting period of three months before any formal application could be commenced (QQ 95, 106).

  24.    A number of witnesses urged that the Convention adopt a more discretionary system along the lines of that now applied in the United Kingdom. According to Professor McCleod, many might see the Convention's rules as "mechanistic and crude". In family law matters there was a strong case for the application of discretionary principles (p 70). Professor Beaumont said if that could not be achieved then the Convention should be redrafted as a "single" convention (ie one dealing only with recognition and not laying down jurisdictional rules): "The gains of a double convention, if any, are not worth the cost of an unseemly rush to get divorced" (p 57).

  25.    But not all witnesses were as condemnatory and dismissive of Article 10. Dr Clive noted that as between courts in the British Isles a system of obligatory stays operated under the 1973 Act. It could be argued that, provided the grounds of jurisdiction were reasonable and all the countries involved conducted the proceedings in accordance with accepted principles of natural justice, a simple rule for the resolution of such conflicts was better than the less predictable exercise of discretion. Dr. Clive thought that a mandatory system within the operation of a European scheme was acceptable in principle. A "first come, first served" rule had the merit of simplicity and familiarity. He said: "It does seem to me that there is something to be said for having mandatory rules rather that discretion on both sides because the danger is that both courts will feel quite reasonably that they are in a good position to decide the case". If both cases continued that would be the worst of all possible worlds because one of them would be bound to be a waste of expenditure. Dr Clive acknowledged, however, that it would be possible to have a more refined solution to the problem of concurrent proceedings in different national courts (p 3, QQ 17, 20). The Departments expressed concern about the inflexibility of Article 10. They did not agree with Dr. Clive. Mr Beaton said: "we are not entirely persuaded by Article 10 although the mandatory sist provisions that work quite well between the United Kingdom jurisdictions ... are now well-established and do not cause any problems intra United Kingdom. People are more concerned when it comes to international jurisdiction matters in this regard". The implications for the ancillary matters in relation to divorce raised particular concern in practice (QQ 191-2).

  26.    Professor Hartley, being, as he said, realistic about the likelihood of the other Member States accepting the United Kingdom's approach to concurrent proceedings, proposed that the Convention be amended to provide that the court first seised, if it thinks another court is more appropriate, could stay proceedings in favour of that other court, provided the other court was prepared itself to accept the proceedings. Such a rule would, he believed, go some way to improving matters and, because it required both courts to agree, should be acceptable to other Member States. Dr Clive said that there was an example of such an approach in the 1996 Hague Convention (Q 68)[14]. The Departments thought that Professor Hartley's proposal was an interesting one and agreed to consider it. It might, for example, be particularly helpful with regard to the relationship of proceedings in the United Kingdom and in Ireland.They thought that the proposal might still involve a need to define the grounds relating to the exercise of the judicial discretion it would confer, which might be difficult to achieve when other Member States did not look so favourably on judicial discretions of this nature (QQ 192-4).

  27.    As regards cases not falling within the scope of the Convention, a number of witnesses raised the question whether it would remain open to courts in the United Kingdom to retain and exercise the forum non conveniens doctrine. Some uncertainty surrounded this in the context of the 1968 Brussels Convention. The Faculty of Advocates proposed that there should be an express provision in the Convention preserving the courts' powers to decline jurisdiction on this ground, where to do so was not inconsistent with the Convention (p 61).

(ii) Jurisdiction in relation to custody orders

  28.    As regards custody orders made in the context of proceedings for nullity, divorce or judicial separation, a court in the United Kingdom has jurisdiction where matrimonial proceedings in respect of the parents of the child concerned are continuing before that court (a number of witnesses referred to the divorce court having "automatic" jurisdiction in relation to the children). The Convention (Article 3) provides that the basic ground of jurisdiction is that the child in question is habitually resident in the Member State in which the divorce proceedings are taking place.

  29.    A number of witnesses pointed out that the effect of the proposal would be to restrict the ability of United Kingdom courts to deal with children involved in divorce proceedings who are not habitually resident here. The Departments pointed out that were the United Kingdom to ratify the 1996 Hague Convention (no decision had yet been taken on this question) the present automatic jurisdiction of divorce courts here over children of the marriage living abroad would be restricted (p 39). Witnesses accepted that the loss would not, in practice, be substantial because jurisdiction was rarely exercised when the child was habitually resident abroad. Further, the restriction would be a qualified one. The draft provides that where the child is habitually resident in another Member State the court has jurisdiction if at least one of the spouses has parental responsibility in relation to the child and that jurisdiction is accepted by the spouses as being in the best interests of the child (Article 3(2)). Dr Clive noted that the proposal was similar in this respect to Article 10[15] of the 1996 Hague Convention (p 4).

  30.    The President's International Committee expressly agreed with the principle adopted by the 1996 Hague Convention and implicit in Article 3 of the present proposal that the country of the child's habitual residence has the prime claim to make decisions concerning the child's welfare. As regards Article 3(2), they pointed out that there were divergences between the present proposal and Article 10 of the 1996 Hague Convention. These, the President's International Committee said, should be eradicated. The approach of the 1990 Hague Convention was preferable: at least one of the parents should be habitually resident in the Member State concerned and the court's jurisdiction should be accepted by all persons having parental responsibility (p 23). The Departments agreed that discrepancies between the two Conventions should be removed but thought that even if they remained the practical effects would not be likely to be significant (p 39).

  31.    What was especially important to a number of witnesses was that there should so far as possible be uniformity in jurisdictional and recognition rules, particularly in relation to matters concerning children. The Law Society of Scotland identified and described four schemes of jurisdictional rules which would be applicable in the United Kingdom on the assumption that both the 1996 Hague Convention and the present proposal were adopted: "There is no particular justification in jurisdictional matters having four different sets of rules, depending on what other country is involved". There was a strong argument for harmonising the provisions of the Hague Convention and the present proposal (p 63). The Departments agreed that the present proposal should not apply grounds of jurisdiction within the European Union which would be significantly different from those which would apply in relation to all other States party to the 1996 Hague Convention throughout the world (p 39). Other witnesses placed great weight on this consideration. The need for harmony with the Hague Convention was emphasised by Lord Rodger, the Lord President of the Court of Session , the most senior judge in Scotland. He also pointed to the danger that, by including custody matters in the proposed Convention, the risk of conflicts would be increased. That would be extremely undesirable: "in all disputes the main concern is the welfare of any children, but that can easily become obscured if complicated points on jurisdiction can be raised. The greater the number of competing bases for jurisdiction, the greater is the opportunity for such points being taken and for undesirable complexities being introduced" (p 73).

  32.    Professor McClean said that the overall policy of the draft was far from clear. In particular he questioned why Article 3(2) made the habitual residence of the child within the Member States as a whole of importance. One implication of Article 7 (the nature and effect of which is described in paragraph ...above) was that as regards children who were habitually resident in a non-Member State the court in a Member State taking jurisdiction over the divorce of the parents might also take jurisdiction over the children under national law. A custody order from that court would have to be recognised in other Member States. If so, Professor McClean said, the boundaries set around Article 3(2) were very puzzling. He considered that the Convention's principles as to jurisdiction in children cases were unsatisfactory and that insufficient thought had been given to the implications (p 70).

  33.    Witnesses also expressed concern that the proposal was limited to a "child of both spouses" whereas domestic rules generally applied to a "child of the family", a wider concept. Dr Clive said that this was a defect (Q 34). The SFLA said that limiting Article 3 to children of the marriage was likely to produce anomalies and inconsistencies. For example, what would be the position of a child of the first marriage of the mother in the event of the breakdown of her second marriage (p 24, Q 115)? The practitioners supported an amendment of the text to include "children of the family". That terminology, they recognised, might not be acceptable. Mr Karsten, for the President's International Committee, said that Dr Clive's suggestion, to refer to children "having a connection with the marriage deemed sufficient by the internal law of that Member State", might meet the need (p 6, Q 113-4).

  34.    The Departments acknowledged that Article 3 was unsatisfactory in this respect, though trying to persuade other Member States of the need to amend the Convention had not so far been successful. The risk, however, that United Kingdom courts would have to apply different provisions to different children of the family where, as in the example quoted above, some of the children were stepchildren might be diminished given the degree of consistency between Article 3 of the proposal and Articles 5 and 10 of the 1996 Hague Convention (which do not distinguish between different categories of children in this respect) The Departments would nonetheless continue to press for amendment of the Convention (p 39, Q 168-72).

7   Articles 14 and 15 of the French Civil Code give jurisdiction based on the French nationality of petitioner or respondent and in effect guarantee the right of French nationals to access to the French courts. Back

8   A committee set up by the President of the Family Division in order to monitor developments in the international field which bear on family law.The Committee is chaired by Lord Justice Thorpe and includes judges, practitioners, academics and representatives of interested organisations. Back

9   Under the doctrine of forum non conveniens a court, which has jurisdiction over a matter, can decline jurisdiction where it considers that the case is not really suitable for that court and would be better tried elsewhere. The application of the doctrine in relation to the proposed Convention is considered further at paragraphs 21-27 below. Back

10   We consider the proposed role of the European Court at paras 49-53 below. Back

11   Article 220 provides that "Member States shall, so far as is necessary, enter into negotiations with each other with a view to securing for the benefit of their nationals: ...- the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards". Back

12   Under Article K. 2., "The Council may: ...(c) without prejudice to Article 220 of the Treaty establishing the European Community, draw up conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements". Back

13   The Family Law Act 1996 does not extend to Scotland Back

14   Section 52 of the Matrimonial Causes Act 1973 defines "a child of the family" as "(a) a child of both [parties to the marriage]; and (b) any other child, not being a child who is placed with those parties as foster parents by a local authority or voluntary organisation, who has been treated as a child of their family". Back

15   Article 10 of the 1996 Hague Convention enables the courts of a Contracting State exercising matrimonial jurisdiction in relation to the parents of a child habitually resident in another Contracting State to "take measures directed to the protection of the person or property of such child if (a) at the time of commencement of the proceedings, one of his or her parents habitually resides in that [ie the forum] State and one of them has parental responsibility in relation to the child, and (b) the jurisdiction of these authorities to take such measures has been accepted by the parents, as well as by any other person who has parental responsibility in relation to the child, and is in the best interests of the child".  Back

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