Rachael Kelsey

There has been much written on the other civil (and commercial) law ramifications, but much of that commentary has focused on the potential losses to the UK legal services sector if there is a move away from the UK (for which read London) when it comes to dispute resolution.

For an excellent summary of where we are generally with the UK’s application to accede to Lugano in our own right, and the international context, I commend a great wee article that I read yesterday by Geert van Calster, a Belgian lawyer and academic. His focus, again, does not encompass the family law issues arising, but worth reading if for no other reason than his lovely analogy on the present and foreseeable landscape: ‘If Brussels Ia is the Champions League, then Lugano is the Premier League and the Hague Judgments Convention the Ruritanian Boy Scouts football conference’.

From a family law perspective, we don’t have to wait for the Judgments Convention to come into force to have provision to fill (some) of the gaps left by the loss of the European Regulations and Lugano – we do have the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007. And although that Convention has massively improved the cross border provision with states like the US, it is not as comprehensive, in a European context, as Lugano (let alone Brussels IIa – in Mr Calster’s analogy, in a family law context, replace Br IIa with Br Ia and the Judgments Convention with Hague 2007).

The 2007 Convention, unlike Lugano, doesn’t have ‘direct’ jurisdictional rules setting out which courts can deal with a matter. Rather, at the back end, once you have your judgment, it contains ‘indirect’ jurisdictional rules – rules which can limit recognition and enforcement of judgments. So, the danger is that people bash on and get a judgment that is perfectly valid domestically, which would previously have been capable of recognition/enforcement in another state, but now is not.

The other area where the provision in Hague 2007 is inferior to that in Lugano is in relation to the lack of a lis pendens provision. All of us – whether we are civil practitioners and used to working with Br Ia, or family lawyers working with Br IIa and the Maintenance Regulation – have been used to the ‘first past the post’ system in the Regulations that ensured that parallel proceedings and/or a rush to judgment was avoided.

When Br II (as it then was) came into force in the UK in 2005, some English family lawyers in particular disliked the loss of the classic forum non conveniens regime in family cases, arguing that it discouraged mediation and negotiation, and encouraged an unduly hasty rush to court. That was perhaps unsurprising given that their approach in family cases is inherently much more discretionary than ours, but few retained that view after working with the Regulations – they came to see the benefits of certainty and predictability for the vast majority of people, and welcomed that forum shopping by the more economically dominant party became less easy.

The other aspect of Lugano that we as family lawyers miss is the ability to have binding choice of court agreements. In cross border pre-nups, since the Maintenance Regulation, it was usual to make an election for jurisdiction for spousal maintenance claims. That was very helpful and reduced the scope for economic abuse, again. Lugano also allows for binding choice of court agreements, but there is no similar provision in Hague 2007.

If you are interested in some of the detail on the family law issues, it’s worth reading the IAFL European Chapter paper on Lugano. There was unanimity from top family lawyers in 22 different jurisdictions across the EU, EFTA states and within the UK that if would be better for cross border families and individuals if the UK were allowed to accede to Lugano in our own right.

There is no clarity about the process that is to be adopted for consideration of the UK’s application, which was made in April 2020. The Commission have made their position clear – that they are not ‘in a position to give [its] consent to invite the United Kingdom to accede to the Lugano Convention’. It seems that unanimity of member states will be required to make progress (I bow to the much greater knowledge of Mr Claster on matters of internal procedure in the EU, and he deals with this at the end of his article).

Given France’s vocal opposition to the UK rejoining and the general rather bad tempered tenor of UK and EU discussions, I don’t think that many of us are holding our breath. So, for the time being, we are back to the bad old days of unharmonised rules, races to court (and judgment), parallel proceedings and unenforceable orders. Remind me, when can I retire?

• Rachael Kelsey is a partner at SKO Family Law Specialists, is the Scottish member of the Ministry of Justice ILC Lugano Engagement Group and is currently President of the European Chapter of the International Academy of Family Lawyers.