Following Brexit, the UK lost its membership of the significant 2007 Lugano Convention. In April 2020, the UK applied to accede to (i.e. re-join) the Convention as an independent member. However, this requires the agreement of all signatories and, unfortunately for the UK, the European Commission has now recommended that EU member states say "no" to the UK.
What is the Lugano Convention?
The 2007 Lugano Convention is an international treaty between the EU, Iceland, Norway and Switzerland. The Convention aims to clarify which national courts have jurisdiction in cross-border disputes and ensure that judgments can be enforced across borders.
Why does the UK want to re-join the Lugano Convention?
Without the Lugano Convention, the UK is forced to rely on a different international treaty - the 2007 Hague Convention. The Hague Convention is much more limited than the Lugano Convention and has a number of gaps. If the UK were to accede to the Lugano Convention, there would be one comprehensive guide to jurisdiction and enforcement across borders.
For family law cases, the Lugano Convention is helpful in three ways:
1. Jurisdiction
Following Brexit, the rules for jurisdiction are found in various places, including the Hague Convention. The rules vary depending on the type of court application and in some situations, there are no applicable rules. The rules also vary between Scotland and England/Wales, confusing matters further. In contrast, the Lugano Convention provides one comprehensive set of rules for determining jurisdiction in cases, including applications for maintenance.
2. Competing Proceedings
If proceedings are raised in two different signatory countries, the Hague Convention has no clear mechanism to determine which country takes precedence. The current rules in the UK note that the most "appropriate" court should win. However, this is a discretionary decision taken by the judge and there is no clear right or wrong answer. The Lugano Convention confirms that whichever action was raised first should proceed, providing a simple system for resolving such disputes.
3. Recognition and Enforcement
Broadly speaking, except for a few exceptions, the Lugano Convention provides that orders made in one signatory country must be recognised and enforced in another signatory country, which will include orders relating to divorce, maintenance and children. In contrast, the Hague Convention includes a wider list of exceptions and the basis for refusal is discretionary.
All in all, the Lugano Convention comes with a host of benefits and would plug various gaps in our law following Brexit. However, the ultimate decision on the Convention now lies with the European Council. Watch this space…
