Select Committee on European Communities Eleventh Report



Letter from the Rt Hon the Lord Irvine of Lairg, The Lord Chancellor, to Lord Hoffmann, Chairman of Sub-Committee E

  I am writing to you in response to a recent Report of the House of Lords Select Committee on the European Communities. This concerned the draft Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters (Brussels II"). I am also writing on behalf of the Lord Advocate.

  I should like to say at the outset that I have read the Report with great interest, both for the recommendations of the Committee itself and the impressive body of expert evidence, written and oral, the Committee obtained from academics and practitioners. The Report as a whole constitutes a valuable resource. It will help the Lord Advocate and myself, and our officials, successfully negotiate the remaining stages of this exercise and produce a finished product which, I hope and believe, will be significantly better than would otherwise have been the case.

  I will confine myself to comment on the most important issues raised in the Report.

  The Committee considered the need for the Convention and concluded that it would have the advantage that divorce and nullity decrees and orders for judicial separation made by our courts would be recognised throughout the European Union; and that this would constitute an improvement on the present position under the 1970 Hague Convention on the Recognition of Divorces. Seven Member States have still not ratified this Convention and are unlikely now ever to do so.

  The Committee was much less enthusiastic about including custody orders made on divorce within the scope of the Convention. It was rightly pointed out that there are already international agreements in this field, in particular the 1996 Hague Convention on the Protection of Children, and the Committee could see no objective justification for creating yet another. Its conclusion was that if custody orders are to be included, the Convention should follow as closely as possible the terms of the 1996 Hague Convention to avoid the possibility of conflict between orders made in relation to the same children in different proceedings; or different children of the same family in the same proceedings.

  The Lord Advocate and I entirely support the Committee's views on these issues. I regard it as of particular importance that all aspects of the law relating to children, including the law on international custody jurisdiction and enforcement, should be consistent and readily comprehensible to practitioners and judges. We should oppose any agreement which fails to achieve this.

  The Committee was also opposed to including matters relating to financial relief on divorce within the Convention. Again, I agree. No one doubts the importance of this subject, but it is an area fraught with difficulty because of the widely differing national laws of Member States. If it is to be tackled in an international agreement, then that should be done in an instrument that deals comprehensively with the subject and does not do so in a piecemeal fashion in a Convention primarily focused on divorce and custody.

  I was glad to note that the Committee supported our proposal for a limited ground of jurisdiction based on the petitioner's domicile designed, in particular, to protect the position of a wife returning to the United Kingdom after a brief married life abroad.

  It was also strongly in favour of introducing some degree of flexibilty into the present inflexible lis pendens rule. It therefore invited the Government to consider a proposal put forward by Professor Hartley in his oral evidence. I have now considered this issue with some care and can say that I fully support the Committee's view on it. The proposed rule would encourage a race to the courts" which would cut across the philosophy of mediation and reconciliation which underpins the Family Law Act 1996. It is with these considerations in mind that I enclose a copy of a United Kingdom proposal which is designed to meet the concerns of the Committee and the great majority of witnesses. It has been approved by Professor Hartley. I would welcome any suggestions which either you or any other member of the Committee may have for its improvement. Disappointingly, it has not so far received general support from other Member States, but we shall continue to argue for some degree of judicial flexibility in the context of competing proceedings.

  One issue which did not appear in the Opinion section of the Report, but which I believe was of concern to the Committee, was whether the Convention should include within its scope all children of the family", as opposed to the more limited proposal in the current text which would only cover the children of both spouses, so excluding step children. I am committed to ensuring that our divorce courts remain free to deal, where necessary, with all custody issues arising out of family breakdown on divorce. This includes making any appropriate orders concerning step children. Such orders should have the same effect in terms of international recognition and enforcement as orders relating to the biological children of the divorcing couple. I shall continue to press for an appropriate amendment to the Convention.

  It is clearly right that the relationship between this Convention and other international agreements in this field should be unambiguous. I agree that Article 42 of the current text needs further work and I shall press for that to be done.

  Finally, I understand the Committee's view that an ordinary preliminary reference jurisdiction for the European Court of Justice in relation to this Convention would be undesirable on the grounds of expense; and, in particular, a degree of delay which would be quite unacceptable in a family law context. With this in mind, I was most interested to read Professor Arnull's proposal that the Court should be given a limited ex post facto jurisdiction to give interpretative rulings on the initiative of a Member State or the Commission where there are conflicting judgments in national courts. My initial reaction to this proposal is favourable, but I shall need to consult my Ministerial colleagues on it before reaching any concluded view.

14 October 1997

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