Forum non conveniens in cross-border family jurisdiction conflicts

Cross-border family disputes often involve parents, children and assets connected to more than one country. In these situations, more than one court may technically have jurisdiction, opening the door to parallel cases and conflicting decisions.

The doctrine of forum non conveniens is used by some courts to decide whether they should decline jurisdiction in favour of a foreign court that appears more appropriate. In family matters, this choice can affect custody, relocation, child support, spousal support and the practical lives of everyone involved.

Because the stakes are high and the criteria are complex, uncertainty about forum non conveniens can generate strategic behaviour, legal costs and delays that aggravate family conflict instead of solving it.

Quick guide to forum non conveniens in cross-border family disputes

• What it is: A doctrine used by some courts to decline jurisdiction when another country’s court is clearly more appropriate to hear the dispute.
• Typical context: Divorce, custody, relocation or support cases where the family has strong connections to more than one country.
• Main legal focus: Identifying the forum that is most suitable in terms of convenience, evidence, applicable law and the best interests of the child.
• Risks of ignoring it: Conflicting decisions, delayed enforcement and damage to children’s stability and family relationships.
• Basic path to a solution: Analyse connecting factors, raise forum non conveniens at an early stage and ask the court to assess which forum is clearly more appropriate.
• Practical aim: Concentrate litigation in the forum best placed to decide, reducing duplication and judicial conflict.

Understanding forum non conveniens in cross-border family disputes in practice

In its classic form, forum non conveniens allows a court that has jurisdiction to decline to exercise it when another forum is clearly more suitable. In family law, the analysis must be adapted to take account of children’s welfare and the reality of family life.

Courts look at practical factors such as the child’s habitual residence, where evidence and witnesses are located, the language of the proceedings and the availability of legal remedies in the other country. They also consider whether the foreign court can provide an outcome that respects fundamental rights and the best interests of the child.

In cross-border family disputes, a well-argued forum non conveniens request can help avoid “races to the courthouse” and can guide courts towards a coordinated approach instead of fragmented litigation.

Legal and practical aspects of forum non conveniens

Legally, forum non conveniens is rooted in case law of certain common law jurisdictions and sometimes in specific statutory provisions. Not all countries recognise the doctrine, and some prefer rigid jurisdictional rules, especially in matters involving children.

When available, courts usually apply a multi-factor test. Elements often considered include the natural forum, the risk of injustice in either forum, the existence of parallel proceedings and the effect of any international family law conventions.

In practical terms, lawyers must collect information about the family’s connections to each country, including residence history, school enrolment, medical treatment, financial arrangements and immigration status. This information can be essential when the court weighs convenience and fairness.

Children’s rights add another layer. Many courts give significant weight to stability, continuity of care and avoidance of sudden disruptive moves. This can sometimes outweigh purely procedural convenience.

Because of these complexities, forum non conveniens arguments in family cases are often more sensitive than in commercial disputes and must be presented with particular attention to welfare and vulnerability.

Practical application of forum non conveniens in real family cases

In real life, forum non conveniens questions often appear when parents separate after living abroad or when one parent moves with the child to a different country. Each parent may try to start proceedings in the forum that seems more favourable to their position.

Disputes may involve relocation, custody, contact schedules, child support, spousal maintenance and property division. Each of these issues may be treated differently by different legal systems, which increases the temptation to litigate in parallel.

Evidence is rarely evenly spread. School reports, medical records, social services reports and witness statements are usually anchored in one country, while financial evidence or immigration documents may be located in another.

When forum non conveniens is raised, courts must examine these realities carefully instead of focusing only on who filed first. A rushed decision to keep or reject jurisdiction can have long-lasting consequences for the family.

1. Identify all courts that might reasonably claim jurisdiction, based on residence, nationality or international instruments.
2. Gather factual information about the child’s life, parents’ circumstances and location of evidence for each potential forum.
3. Analyse whether any international family law convention imposes priority or limits on declining jurisdiction.
4. Prepare written submissions explaining why one forum is clearly more appropriate in terms of welfare, evidence and procedure.
5. Ask the court to consider staying or dismissing the case in favour of the foreign forum, where justified.
6. Seek, where possible, coordination between courts, including through central authorities or judicial communication channels.
7. Review and monitor foreign proceedings to ensure that protection measures remain effective and adapted to the family’s needs.

Technical details and relevant updates

The availability and contours of forum non conveniens depend strongly on national legal systems. Some common law countries have a well-developed doctrine, while many civil law jurisdictions rely on fixed jurisdiction rules or specific mechanisms such as lis pendens.

International conventions, such as instruments on child abduction, child protection or maintenance, may restrict or shape the use of forum non conveniens in family cases. These instruments often aim to increase predictability and reduce competing proceedings.

Recent case law in several countries has refined criteria such as the centrality of the child’s habitual residence, the importance of avoiding conflicting orders and the need to give real weight to ongoing foreign proceedings.

• Pay close attention to whether the relevant jurisdiction formally recognises forum non conveniens in family matters.
• Check if international conventions directly regulate jurisdiction for the type of family dispute involved.
• Monitor evolving case law on declining jurisdiction in favour of foreign courts in child-related disputes.
• Consider guidance or soft-law tools produced by international organisations on cross-border family litigation.

Practical examples of forum non conveniens in cross-border family disputes

Consider a married couple who lived for years with their children in Country A but later moved temporarily to Country B. After separation in Country B, one parent files for divorce and custody there, while the other insists that Country A is the more appropriate forum.

In this scenario, forum non conveniens arguments will revolve around where the children attend school, where they receive healthcare, where extended family support is located and which court can offer more effective long-term supervision of orders.

Other examples include situations where child protection authorities in different countries consider intervention, or where maintenance and property disputes are combined with custody issues, intensifying the competition between forums.

Common errors in forum non conveniens assessments

• Assuming that the court first seized must always retain jurisdiction, without analysing the suitability of other forums.
• Overlooking the impact of international conventions that may restrict the use of forum non conveniens in child cases.
• Focusing exclusively on parents’ convenience and ignoring the child’s concrete needs and connections.
• Failing to collect detailed evidence about the child’s actual life in each country involved.
• Underestimating the difficulty of enforcing a decision abroad when it clearly disregards forum appropriateness.
• Using forum non conveniens as a pure tactical tool, rather than a mechanism to improve fairness and coherence.

FAQ on forum non conveniens in cross-border family disputes

Is forum non conveniens recognised in every country?

No. Some legal systems and international instruments limit or exclude the doctrine, especially in matters involving children, favouring fixed jurisdiction rules instead.

Can a court decline jurisdiction even if it is technically competent?

In systems that accept forum non conveniens, a court may decline jurisdiction when another forum is clearly more appropriate, provided certain conditions are met and rights are safeguarded.

How does forum non conveniens relate to the child’s best interests?

In family disputes, any use of forum non conveniens should be consistent with the child’s best interests, considering stability, continuity of care and access to protective measures.

Does the existence of a foreign case automatically lead to a stay?

Not automatically. Courts usually consider the stage of the foreign proceedings, the overlap of issues and the risk of inconsistent decisions before deciding whether to stay or decline.

Can parents choose the forum by agreement?

Agreements between parents may be taken into account, but they generally cannot override mandatory jurisdiction rules or the court’s duty to protect children and vulnerable adults.

What role do international family law conventions play?

Conventions can allocate jurisdiction, require recognition of foreign decisions and sometimes limit the possibility of declining jurisdiction in favour of another forum.

Is forum non conveniens mainly about convenience for lawyers?

No. Although convenience matters, the central aim in family cases is to identify the forum that can best deliver fair, coherent and enforceable outcomes for the family, particularly for children.

Normative and case-law foundations

The foundations of forum non conveniens lie in national statutes, procedural rules and case law of the countries that recognise the doctrine. Courts have gradually adapted commercial principles to the context of family and child law.

In parallel, international family law instruments, such as those on child protection, child abduction and maintenance, set jurisdiction rules and recognition mechanisms that influence when and how a court may decline jurisdiction.

Final considerations

Forum non conveniens in cross-border family disputes is not a purely technical doctrine. It directly affects where families litigate, how quickly protective measures can be granted and how orders will be enforced across borders.

Careful use of this mechanism can reduce duplication, avoid conflicting orders and help concentrate proceedings in the forum best placed to understand the family’s circumstances and protect vulnerable members.

At the same time, the doctrine must be applied with caution so that it does not become a tool for delay or strategic manipulation in high-conflict situations.

This content is for informational purposes only and does not replace individual legal advice from a qualified professional who can evaluate the specific facts of each case.