House of Lords - European Communities

Select Committee on European Communities Fifth Report

PART 3 OPINION

54. The proposed Convention has been under discussion for over four years and much time has been spent on its detailed negotiation. Substantial changes have been made. The Committee accepts that the proposal is now so far developed that it is most likely, if not certain, that an agreed Convention will emerge in the not too distant future, perhaps in 1998 during the United Kingdom Presidency. In these circumstances any examination of the need for a Convention might appear a somewhat academic exercise. We do not think that this is the case. Looking at the need for the Convention has enabled the Committee to focus on its practical purpose and effects and to consider whether the appropriate level for such an instrument should be the European one and how the proposal would interact with existing international instruments in the field. It has also helped the Committee to assess the likely advantages and disadvantages and what amendments, if any, should be made to facilitate the United Kingdom's continuing participation in the exercise.

55. It is generally agreed that the main practical problem which the Convention seeks to address derives from those provisions of the French Civil Code entitling a French national to sue or be sued in a French court and consequent difficulties arising in the relationship of French and German courts. There appears to be little or no evidence that the French rules have caused difficulties for United Kingdom citizens, though they could in theory operate to the detriment of citizens of Member States other than Germany. Nor did the practitioners identify any other problems which the Convention, as presently drafted, would solve. From a United Kingdom perspective, taking into account our current participation in the 1970 Hague Convention and other relevant international instruments, there seem to be no pressing problems or difficulties for United Kingdom citizens which it would address. But the position of other Member States, as the Franco-German problem indicates, may well be different and the Committee recognises that the Convention may bring more direct and immediate benefits to them and their citizens. There would also, it should be said at the outset, be some advantages for the United Kingdom. In particular, there would be control and certainty of jurisdictional rules throughout the Union and easier recognition of English and Scottish divorces in other Member States, including States which are not party to the 1970 Hague Convention.

56. A fundamental question remains, however, as to what should be the proper level for conventions on such subjects. The Committee has no doubts about the potential benefits of international instruments which serve to reduce conflicts of jurisdiction and conflicts of laws in relation to measures relating to divorce and to children. Such conflicts do not necessarily end at the external borders of the Union. There is, as a general rule, advantage to be had from judgments and orders of United Kingdom courts being enforceable in as many other States as possible and, in principle, any Convention should have the widest coverage. Therefore we would support the initiatives of such bodies as the Hague Conference aimed at a global solution. As described at the beginning of this Report, there exist a number of relevant conventions to which the United Kingdom and other Member States (but not all in every case) are party. In the present instance, accession to the 1970 Hague Convention by other Member States, including France and Germany, might go a long way to dealing with any practical problems which currently exist. But it is most unlikely, twenty-seven years after its conclusion, that those Member States Union which have not become parties to the 1970 Convention will take the necessary steps to do so now. Moreover, there is clearly a wish by some Member States to have a European solution to questions of jurisdiction and recognition in matrimonial matters. The proposal would have the advantage that decrees and orders in such matters from United Kingdom courts would be recognised and enforceable in all the other Member States, which would be an improvement on the present position under the 1970 Convention.

57. It remains, nonetheless, a major issue, we believe, whether the Convention should deal with custody matters. There exists now, although not when the Community measure was first proposed, the 1996 Hague Convention. This is a far more comprehensive instrument dealing with child custody matters (including orders made on divorce) and witnesses spoke highly of it. In particular, it deals with all child custody orders and not only those made on divorce and with orders in respect of all children, not only those of the parties to the divorce. If all Member States ratified the 1996 Hague Convention there would be no need for the extension of the Convention to child custody matters. But in the absence of a binding commitment at European Union level to do this it may not be realistic to suppose that every Member State will become party to the 1996 Hague Convention. The Committee can, however, see no advantage in a multiplicity of international instruments in the same field or different rules in such instruments, without objective justification and identifiable benefits. Accordingly we take the view that the present proposal should not deal with children. If other Member States cannot be persuaded of the relevance and adequacy of the 1996 Hague Convention, then we recommend that in so far as the present proposal seeks to deal with child custody it should follow the terms of the 1996 Convention as closely as possible. That will avoid the possibility of conflict in respect of orders made in relation to the same children in different proceedings, or different children of the same family in the same proceedings.

58. Turning to the question of where witnesses perceived to be a need for further international action, the practitioners emphasised the importance of financial matters in relation to divorce proceedings and thought that the draft Convention would do nothing to assist in this direction. We do not, however, propose that the Convention should be extended to deal with financial matters. We recognise the importance of this matter but doubt, having regard to the difficulties identified by witnesses, especially the fundamentally different approach taken by the laws of Member States relating to the classification and division of matrimonial assets, whether it is feasible to include financial matters in the Convention. Maintenance payments fall within the scope of the 1968 Brussels Convention, which is soon to undergo a process of revision. We do not believe, however, that there is a sufficient a case for delaying the conclusion of the present proposed Convention pending the outcome of that exercise, whether in order to deal more effectively with financial provision on divorce or more generally to co-ordinate the terms of the two instruments.

ROLE OF THE COMMUNITY/UNION-THE LEGAL BASE

59. It is an indication of the political and constitutional developments which have taken place in recent years that the notion of a Convention at European level dealing with family law matters does not seem revolutionary or even strange. The debate is not about whether the Community or Union has the power to conclude a Convention on matrimonial matters but which of two powers within the Treaties is the more appropriate in the circumstances. Whether the Convention should be adopted pursuant to Article 220 of the EC Treaty or under Part VI of the Maastricht Treaty was not, however, considered to be a matter of great import by most witnesses. Either would do. The Government has not yet taken a view, preferring to wait and see how things develop. The position would, it was agreed, become more complicated after the adoption of the draft Treaty of Amsterdam, but any Convention is likely to be concluded before that Treaty enters into force.

60. A choice between Article 220 and Article K.3.2.(c) will have to be made. The Committee accepts that a case can be made out for each but takes the view that, having regard to its aim and content, the Convention is more consonant with the objectives of the Union than the Community. It seems to the Committee that there is a degree of artificiality in trying to tie the proposal too closely to the internal market or freedom of movement under Article 48. The Convention is an example of that closer cooperation among Member States in non-economic matters which is contemplated in Articles B and K of the Treaty on European Union.

CHANGES TO UNITED KINGDOM LAW AND PRACTICE

61. As mentioned above, the main advantages of the proposal would seem to be twofold, the certainty of grounds for jurisdiction in other Member States and the certainty of recognition of United Kingdom divorces, nullity decrees and judicial separations in other Member States. Both are worth having, provided always the cost is not too great. Witnesses identified certain changes which adoption of the Convention would entail and consequent difficulties or disadvantages. Three matters attracted the attention of both the academics and practitioners.

62. First, there would be the loss of jurisdiction on the grounds solely of the petitioner's domicile. The example given was that of the wife from the United Kingdom who marries a national of another Member States and settles abroad. The marriage breaks down and she returns to, and immediately becomes domiciled in, the United Kingdom. Under the Convention she would have to be habitually resident here for a year before she could commence divorce proceedings. If an amendment along the lines of that proposed by the Government (providing for jurisdiction on the grounds of one year's residence in the last five[19]) can be secured the practical disadvantages are likely to be diminished. The Committee supports the Government's proposed amendment which should be sufficient to deal with the problem of the marriage which breaks down in its early years and when the spouse concerned may not have put down firm roots outside the United Kingdom.

63. By far, however, the most major difficulty appeared to be the rule in Article 10 (the lis pendens rule), to the effect that all courts other than that first seised of the matter would be obliged to decline jurisdiction. Witnesses were critical of the rigidity of this rule compared to the forum non conveniens doctrine as currently applied by courts in the United Kingdom. The problem appeared to be most acute when the effect of Article 10 was combined with the loss of jurisdiction on the grounds of the petitioner's domicile alone (described in the previous paragraph). While the wife who returns to the United Kingdom would have to wait one year, the husband could start proceedings immediately in the foreign court, thereby removing the wife's ability to sue here. The Committee shares the concerns expressed by witnesses that the Convention's rule might cause or support a "first to the court" race. The anxiety of clients at having to litigate abroad and the financial interests of their lawyers would contrive to precipitate early litigation. This would cut across the policy and approach of modern divorce laws, with their emphasis on mediation and conciliation as reflected in the changes contained in the Family Law Act 1996. But it is probably unrealistic to expect other Member States to agree to the substitution of the practice currently applying in our domestic courts. And unless all Member States were willing to adopt and apply a forum non conveniens rule little would be done to solve the problems which we have identified.

64. Professor Hartley suggested that the court first seised, if its thinks that another court is a more appropriate forum, could stay proceedings in favour of that other court provided that court is itself prepared to accept the proceedings. The Committee agrees that such a provision would be an improvement, though it would, we believe, be necessary to set down in the Convention rules governing the circumstances in which the first court should ordinarily exercise the discretion. Its success would be dependent on national courts being prepared to exercise it in appropriate circumstances. For some foreign courts the exercise of such a discretion would be a new experience and there is no certainty that they would exercise it when invited or that the outcome would be the same as might be expected of a United Kingdom court in similar circumstances. Notwithstanding these potential limitations we support Professor Hartley's suggestion and recommend that it be given detailed consideration by the Government.

65. Article 7 of the draft Convention raises a different concern, namely the ability of Member States to retain certain "exorbitant" jurisdictions and the need for their automatic recognition elsewhere in the Union. It would not seem, in the light of the present position of the laws in the Member States, to cause too many difficulties in practice and the Committee takes the view that while Article 7 is not desirable as a matter of principle it is probably in the end acceptable. If at some time in the future a Member State were to set itself up as the Reno of Europe then that would be the occasion to take any necessary remedial action.

RELATIONSHIP WITH OTHER INTERNATIONAL INSTRUMENTS

66. A number of witnesses expressed concern about the uncertainty of the relationship between the Convention and other Conventions in the field, and about the effects of Article 42 in particular. As regards the Hague Child Abduction Convention there was general agreement that the proposal should not cause any interference with the operation of that Convention and that the present text (Article 3A) was probably sufficient. The Child Abduction Convention is a most important instrument, which has been widely adopted and in practice generally works satisfactorily. The Government should be certain that its operation will not be prejudiced by the present proposal. As regards other relevant multipartite conventions, some concern was expressed about the meaning and effect of Article 42 and the extent to which it would give precedence to the proposed Convention and about the compatibility of the Convention with existing obligations under other instruments. The Government acknowledged that the present text of Article 42 was not clear. The Committee agrees that the position should be clarified.

ROLE OF THE EUROPEAN COURT

67. Whether the Court of Justice should have jurisdiction in relation to Conventions concluded under the Treaties is a subject which has not been without controversy, particularly in relation to those concluded under the Third Pillar (ie under Part VI (justice and home affairs) of the Maastricht Treaty). The Government's general approach is to consider the possible need for Court of Justice jurisdiction in each case on its merits. Witnesses took a critical and pragmatic stance in relation to the present proposal. They acknowledged the importance and value of interpretative rulings of the Court of Justice but also identified the problems which delay would cause in matrimonial cases, in particular where children are involved.

68. The jurisdiction of the Court of Justice has proven to be important and useful in practice in determining the meaning and scope of the detailed provisions of the 1968 Brussels Convention. In principle, the need for uniformity would seem to be equally important in relation to matrimonial and custody matters. But the delay which a reference to the Court of Justice would cause (at least 18 months) is not acceptable. The likelihood of being able to speed up or shorten the process is remote. An alternative solution has, therefore, to be found, which will balance the interests of legal certainty and uniformity with those of the interests of the parties. The Committee supports Professor Arnull's proposal that the Court of Justice be given a limited ex post facto power to give interpretative rulings on the initiative of a Member State or the Commission where there are conflicting judgments in national courts. We believe that under such an approach the Court would retain a significant and important role and we invite the Government to give Professor Arnull's proposal detailed consideration.

CONCLUSION

69. International rules on jurisdiction and recognition in matrimonial and child custody matters may have important practical implications in the application of both civil and criminal law when the status of husband and wife, or of parent and child, is called into question. The Committee supports international initiatives aimed at avoiding jurisdictional conflicts in relation to divorce and matters regarding children and believes that such initiatives are best undertaken at the widest international level in order that as many States as possible can participate. But in the present circumstances it seems unlikely that more Member States will join the 1970 Hague Convention and, as regards divorce proceedings, a Convention at Union level could bring advantages for all Member States, and especially for those States whose citizens have suffered practical difficulties under existing national laws. There would be common rules on jurisdiction and certainty of recognition in other Member States of divorce decrees. The Convention would bring about certain changes in law and practice in the United Kingdom. Most of these would be acceptable. However, as regards the Convention's proposals on jurisdiction, the Committee supports the compromise put forward by the Government that a court should have divorce jurisdiction based on the domicile or nationality of the petitioner provided that he or she has been habitually resident in that Member State for at least one year during the five years preceding the commencement of the proceedings. The Committee also takes the view that the lis pendens rule in Article 10 should be amended to permit some flexibility of action where both courts agree. Most importantly, child custody matters should be taken out of the Convention. If they remain, the Convention's provisions should mirror those in the 1996 Hague Convention.

RECOMMENDATION

70. The Committee considers that the proposed Convention on jurisdiction, recognition and enforcement of judgments in matrimonial matters raises important questions to which the attention of the House should be drawn, and makes this report to the House for debate/for information.

19 The proposal is decided in para. 20 above. Back



© Parliamentary copyright 1997	Prepared 30 July 1997