 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Family Court Decisions (High Court Judges) |
||
|
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> C (A Child) [2021] EWFC 32 (13 April 2021) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2021/32.html Cite as: [2021] EWFC 32 |
||
[New search] [Printable PDF version] [Help]
At the Royal Courts of Justice (sitting remotely)
In the matter of C (A Child)
Strand, London, WC2A 2LL |
||
B e f o r e :
(Sitting as a Judge of the High Court)
____________________
| M |
Applicant |
|
| - and - |
||
| F |
Respondent |
____________________
Mr Tim Amos QC and Mr Deepak Nagpal QC (instructed by Family Law in Partnership) for the respondent (C's father)
Hearing dates: 24-26 March 2021
____________________
Crown Copyright ©
Sir James Munby :
The Maintenance Regulation
"In order to preserve the interests of maintenance creditors and to promote the proper administration of justice within the European Union, the rules on jurisdiction as they result from Regulation (EC) No 44/2001 should be adapted. The circumstance that the defendant is habitually resident in a third State should no longer entail the non-application of Community rules on jurisdiction, and there should no longer be any referral to national law. This Regulation should therefore determine the cases in which a court in a Member State may exercise subsidiary jurisdiction."
"For the purposes of this Regulation
(10) the term 'creditor' shall mean any individual to whom maintenance is owed or is alleged to be owed."
(11) the term 'debtor' shall mean any individual who owes or who is alleged to owe maintenance."
"In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:
(a) the court for the place where the defendant is habitually resident, or
(b) the court for the place where the creditor is habitually resident, or
(c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or
(d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties."
"Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction."
"1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
2. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court."
"1. Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings.
2. Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.
3. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings."
The Maintenance Regulation: the issue
The Maintenance Regulation: meaning and effect
i) The Maintenance Regulation "is intended to offer special protection to the maintenance creditor, who is regarded as the weaker party in such proceedings:" Sanders v Verhaegen, para 28, and, to similar effect, R v P, paras 30, 46. As Lord Wilson JSC observed in his dissenting judgment in Villiers, para 177, this principle dominated the majority judgments of Lord Sales JSC and Lady Black JSC: see, for example, Villiers, paras 11, 14, 21, 29, 33, 42, 63.
ii) "The rules on jurisdiction provided for in [the Maintenance Regulation], are intended to ensure proximity between the creditor and the competent court": Sanders v Verhaegen, para 28.
iii) "It is vital to take into account, in interpreting the rules on jurisdiction laid down by Art 3(c) and (d) of the Maintenance Regulation 2009, the best interest of the child. That is true all the more given that the implementation of the Maintenance Regulation 2009 must occur in accordance with Art 24(2) of the Charter of Fundamental Rights of the European Union, according to which, in all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration": A v B, para 46.
iv) The maintenance creditor can bring her application before any of the courts where jurisdiction can be established under Articles 3(a)-(d), for Article 3 provides four "alternative" and "non-hierarchised" criteria for jurisdiction: R v P, paras 29, 31 and 45. The Maintenance Regulation "give[s] priority to the applicant's choice": R v P, para 45. By giving the maintenance creditor the right to choose the forum, she is thus able to choose the applicable law: R v P, para 46, Villiers, paras 15 ("by giving the maintenance creditor a choice regarding the forum in which to bring their claim, the maintenance creditor was also afforded a choice regarding the substantive law to be applied"), 29 ("The object of the mandatory rule of jurisdiction in article 3 of the Maintenance Regulation is to accord special protection for a maintenance creditor by giving him or her the right to choose the jurisdiction most beneficial for them out of the range of options specified in that article."); see also paras 32, 34, 42.
v) The maintenance creditor's right to choose the jurisdiction is unfettered: Villiers, para 41 ("She has an unfettered choice in that regard, and is entitled to choose to bring her claim in an English court on grounds of its convenience for her or because she believes that the law it will apply is more advantageous for her. It is a fundamental object of the Maintenance Regulation to confer that right on a maintenance creditor Articles 12 and 13 of the Maintenance Regulation have to be interpreted in the light of this object.").
vi) The rules resulting from the Maintenance Regulation "must be considered to be exhaustive": R v P para 42.
vii) The doctrine of forum non conveniens has no place in the context of maintenance cases under the Maintenance Regulation, for the Maintenance Regulation "does not provide for the option, for a court with jurisdiction under one of the provisions of that Regulation before which an application has legitimately been brought, to decline jurisdiction with regard to that application in favour of a court which, in its view, would be better placed to hear the case": R v P, para 44, Villiers, paras 34-35, 63, 68 and 167 ("Even when the law of a member state, such as the UK, adheres to the less appropriate forum principle, it cannot apply it to its determinations under the Maintenance Regulation. For articles 12 and 13 represent an exclusive code for the resolution of jurisdictional rivalry between the courts of different member states in relation to maintenance.").
viii) In relation to Article 3, "The contrast between sub-paragraphs (a) and (b) is between the place of habitual residence of "the creditor" (a term defined in article 2(10) to mean "any individual to whom maintenance is owed or is alleged to be owed") and the place of habitual residence of "the defendant" (which is not a defined term; in context, it means the person against whom a claim is asserted that he owes maintenance)": Villiers, para 21. "Defendant" in Article 5 has the same meaning as in Article 3(a): R v P, paras 32, 33.
ix) " article 3 does not create a right for a maintenance debtor to pick a jurisdiction from those set out in that provision and commence proceedings seeking declaratory relief regarding the extent of any maintenance obligation he might have": Villiers, para 21.
"By its question, the referring court essentially seeks to ascertain whether Art 3(c) and (d) of the Maintenance Regulation 2009 must be interpreted as meaning that, where a court of a Member State is seised of proceedings involving the separation or dissolution of a marital link between the parents of a minor child and a court of another Member State is seised of proceedings in matters of parental responsibility involving that child, a maintenance request pertaining to that same child may be ruled on both by the court that has jurisdiction to entertain the proceedings involving the separation or dissolution of the marital link, as a matter ancillary to the proceedings concerning the status of a person, within the meaning of Art 3(c) of that Regulation, and by the court that has jurisdiction to entertain the proceedings concerning parental responsibility, as a matter ancillary to those proceedings, within the meaning of Art 3(d) of that Regulation, or whether a decision on such a matter must necessarily be taken by the latter court."
" the court with jurisdiction to entertain proceedings concerning parental responsibility is in the best position to evaluate in concreto the issues involved in the application relating to child maintenance, to set the amount of that maintenance intended to contribute to the child's maintenance and education costs The interests of maintenance creditors is therefore also guaranteed, in that the minor child will easily be able to obtain a decision relating to his maintenance claim from the court with the best knowledge of the key elements for assessing his claim."
"It follows, therefore, from the wording, the objectives pursued and the context of Art 3(c) and (d) of the Maintenance Regulation 2009, that, where two courts are seised of proceedings, one involving proceedings concerning the separation or dissolution of the marital link between married parents of minor children and the other involving proceedings involving parental responsibility for those children, an application for maintenance in respect of those children cannot be regarded as ancillary both to the proceedings concerning parental responsibility, within the meaning of Art 3(d) of that Regulation, and to the proceedings concerning the status of a person, within the meaning of Art 3(c) of that Regulation. They may be regarded as ancillary only to the proceedings in matters of parental responsibility."
"The referring court raises the issue of whether it follows from the judgment of A v B that, where a court has jurisdiction to rule on the dissolution of marriage between the parents of a minor child and another court has jurisdiction to rule on the issue of parental responsibility with respect to the child, only the latter court has jurisdiction to rule on the obligation to pay maintenance for that child."
"the referring court asks, in essence, whether article 3(a) and (d) and article 5 of Regulation No 4/2009 must be interpreted as meaning that where there are three joined claims before a court of a member state concerning, respectively, the divorce of the parents of a minor child, parental responsibility in respect of that child and the maintenance obligation with regard to that child, the court ruling on the divorce, which has declared that it has no jurisdiction to rule on the claim concerning parental responsibility, nevertheless has jurisdiction to rule on the claim concerning the maintenance obligation with regard to that child since it is also the court for the place where the defendant is habitually resident and the court before which the defendant has entered an appearance, or if solely the court with jurisdiction to hear the claim concerning parental responsibility in respect of the child may rule on the claim concerning the maintenance obligation with regard to that child."
"30 since the objective of Regulation No 4/2009, as is apparent from recital (15) thereof, consists in preserving the interest of the maintenance creditor, who is regarded as the weaker party in an action relating to maintenance obligations, article 3 of that Regulation offers that party, when he acts as the applicant, the possibility of bringing his claim under bases of jurisdiction other than that provided for in article 3(a) of that Regulation
31 The maintenance creditor can thus bring his application either before the court for the place where the defendant is habitually resident, in accordance with point (a) of article 3, or "
"Article 5 of Regulation No 4/2009 provides, moreover, for the court of a member state before which the defendant enters an appearance to have jurisdiction, unless the purpose of the defendant entering an appearance was to contest that jurisdiction. As is apparent from the words "apart from jurisdiction derived from other provisions of this Regulation", that article provides for a head of jurisdiction applicable by default where, inter alia, the criteria under article 3 of that Regulation are not applicable."
"Thus, in a situation such as that at issue in the present case, the court for the place where the defendant is habitually resident, seised by the maintenance creditor, has jurisdiction to rule on the application relating to maintenance obligations for the child under article 3(a) of Regulation No 4/2009. It also has jurisdiction under article 5 of that Regulation as the court before which the defendant entered an appearance without raising a plea alleging lack of jurisdiction."
"38 it does not follow from A v B, that where, as in the case in the main proceedings, a court has declared that it has no jurisdiction to rule on an action in relation to the exercise of parental responsibility for a minor child and has designated another court as having jurisdiction to rule on that action, only that latter court has jurisdiction, in all cases, to rule on any application in relation to maintenance obligations with respect to that child.
39 It is important to note in this connection that, in A v B, the court interpreted only points (c) and (d) of article 3 of Regulation No 4/2009 and not the other criteria for jurisdiction provided for in article 3 or article 5 thereof. Those other criteria were not relevant in that case since, unlike the facts of the case in the main proceedings, the spouses who were the parents of the maintenance creditor children had their habitual residence in the same member state as their children and, furthermore, the defendant had put in an appearance before the court seised only to contest the jurisdiction of that court.
40 Consequently, the fact that a court has declared that it has no jurisdiction to rule on an action in relation to the exercise of parental responsibility for a minor child is without prejudice to its jurisdiction to rule on applications relating to maintenance obligations with regard to that child if that jurisdiction may be founded, as in the case in the main proceedings, on article 3(a) of Regulation No 4/2009 or article 5 of that Regulation."
"47 An interpretation of Regulation No 4/2009 according to which only the court with jurisdiction in respect of parental responsibility has jurisdiction to rule on an application concerning maintenance obligations is liable to limit that option for the maintenance creditor applicant to choose not only the court with jurisdiction, but also, as a result, the law applicable to his application.
48 In a situation such as that at issue in the main proceedings, the initial choice of the parent representing the minor maintenance-creditor child to regroup all his heads of claim before the same court is rendered inadmissible by the plea raised by the defendant alleging lack of jurisdiction of that court and a decision of that court declaring that it has no jurisdiction, under article 12 of Regulation No 2201/2003, in respect of the head of claim in relation to parental responsibility.
49 In the light of the risk of having to bring his applications concerning maintenance obligations and concerning parental responsibility before two separate courts, that parent may wish, in the child's best interests, to withdraw his initial application concerning maintenance obligations brought before the court ruling on the divorce petition so that the court with jurisdiction in matters of parental responsibility also has jurisdiction to rule on that application concerning maintenance obligations.
50 Nevertheless, that parent may also wish, in the child's best interests, to retain his initial application concerning maintenance obligations with respect to the child before the court ruling on the divorce petition, where that court is also the court of the place in which the defendant has his habitual residence.
51 Many reasons may be behind such a choice by the maintenance creditor, in particular the possibility of ensuring that the law of the forum is applied, that being Romanian law in the present case, the ability to express himself in his native language, the possibility of lower costs in the proceedings, the knowledge by the court seised of the defendant's ability to pay and exemption from the requirement to seek leave to enforce decisions."
"Consequently, the answer to the questions referred is that article 3(a) and (d) and article 5 of Regulation No 4/2009 must be interpreted as meaning that where there is an action before a court of a member state which includes three claims concerning, respectively, the divorce of the parents of a minor child, parental responsibility in respect of that child and the maintenance obligation with regard to that child, the court ruling on the divorce, which has declared that it has no jurisdiction to rule on the claim concerning parental responsibility, nevertheless has jurisdiction to rule on the claim concerning the maintenance obligation with regard to that child where it is also the court for the place where the defendant is habitually resident or the court before which the defendant has entered an appearance, without contesting the jurisdiction of that court."
"I should mention that in Moore v Moore [2007] 2 FLR 339, it seems (albeit it is not entirely clear) that the Court of Appeal may have assumed but without deciding and with no critical examination of the issue that a maintenance debtor might be able to bring a claim in a jurisdiction of his choice which included an adjustment of family property rights to take account of the maintenance requirements of his wife and that this might be a related action for the purposes of what is now article 13 of the Maintenance Regulation If they really meant to say this, I respectfully doubt that it is correct. It would mean that the maintenance debtor rather than the maintenance creditor could in practice choose the jurisdiction for the maintenance claim, which would have been directly contrary to the fundamental object of what is now the Maintenance Regulation."
"According to the Court of Appeal in Moore v Moore, the husband's petition for divorce and his application for financial relief in the divorce proceedings was not a "related action" in respect of the wife's claim for maintenance. I consider that this conclusion was correct. It reflects the different nature of the claims and the different jurisdictional regimes which govern issues of marital status and division of family property, on the one hand, and issues of maintenance on the other."
"Had Moore been put before him it seems likely that Moor J would have concluded that, unpalatable though he may have found the outcome, the wife's application was in fact a proper application unaffected by the provisions of Article 12 or Article 13 of the EU Regulation."
"His decision was, in my view, directly contrary to the intended effect of the Maintenance Regulation, which was to give the wife (as maintenance creditor) the right to choose the jurisdiction in which to bring her maintenance claim which was most convenient and advantageous for her. She was entitled to claim maintenance under section 27 whether or not the court in Sweden dissolved the marriage for the future, so it was not a case where there was a direct risk of irreconcilable judgments such as would justify application of article 13 by way of qualification of or departure from the fundamental object and policy of the Maintenance Regulation."
"Absent a clearly established risk of directly irreconcilable judgments (of the kind illustrated by Hoffmann v Krieg), jurisdiction established under the Matrimonial Regulation in respect of a divorce procedure brought by a maintenance debtor should not be allowed to undermine the right of a maintenance creditor under the Maintenance Regulation to choose the jurisdiction for her maintenance claim. The judge relied on the fact that the husband's finances were based in Sweden ; but that ignores the importance under the Maintenance Regulation of the position of the wife (the maintenance creditor) and the identification of her needs in the place of her habitual residence The judge said, "There is no prejudice to the wife as she can make her application in Sweden . . . I am quite satisfied that the only reason she has not done so to date is tactical" However, there was prejudice to the wife, because by his ruling the judge deprived her of her rights under the Maintenance Regulation and her ability to rely upon section 27 as a matter of substantive law. He clearly thought that the wife had engaged in illegitimate forum shopping; but the Maintenance Regulation laid down a right for her to choose the forum in which to sue. She was entitled to do so by reference to tactical reasons. In the context of the Maintenance Regulation, there was nothing illegitimate in her deciding to bring her maintenance claim in England [T]he judge said that it was "undoubtedly expedient to hear and determine the issues between these parties together in the same jurisdiction"; but the EU jurisdictional regimes expressly contemplate that different claims arising out of the marriage of the parties might well have to be determined in different jurisdictions. The judge also speculated that the husband might be able to apply for a maintenance order against himself in Sweden; but it would be contrary to the Maintenance Regulation to allow him, as the maintenance debtor, by such a stratagem to determine the jurisdiction in which his wife's maintenance claim should be heard."
"43 Article 12 is directed to dealing with the position which could arise if a maintenance creditor brought maintenance proceedings in more than one court. The phrase "the same cause of action" in article 12(1) has to be read in the light of the objects of the Maintenance Regulation referred to in the case law cited above. Since article 3 allows a choice of jurisdiction and the substantive law to be applied in relation to a maintenance claim differs as between member states, I consider that the phrase refers to the nature of the claims being brought, i e as claims for maintenance of a specific person, rather than to the precise cause of action in law.
44 It is possible that, by cross-maintenance claims, each of a husband and wife might seek to claim that the other owes maintenance. Then, each of them would be the maintenance creditor in respect of his or her claim and would be entitled to exercise the choice of jurisdiction allowed for by article 3. In the context of the Maintenance Regulation, a core object of article 13 is to deal with this situation."
"In article 13, read in the context of the Maintenance Regulation, I consider that the word "actions" refers primarily to maintenance claims of the kind to which the special regime in the Regulation applies. If the position were otherwise, and the word "actions" meant legal proceedings of any kind whatever, that would undermine the fundamental object of the Maintenance Regulation that a maintenance creditor has the right to choose in which jurisdiction to claim maintenance. On such a reading, there would be a substantial risk that this object of the Maintenance Regulation would be undermined by the commencement of proceedings by the maintenance debtor according to the jurisdictional provisions of instruments other than the Maintenance Regulation, laid down in pursuance of entirely different jurisdictional policies than that reflected in the Maintenance Regulation. By contrast, by reading "actions" as referring primarily to maintenance claims, such claims will be brought in exercise of the rights conferred by the Maintenance Regulation and hence in accordance with its objects and policy. Since it is the case that the Maintenance Regulation may have the effect of authorising more than one person to bring a maintenance claim, it needs to make provision for how a potential jurisdictional clash arising within the objects of the Regulation should be resolved. Any extension of the concept of "related action" beyond this in the context of the Maintenance Regulation has to be tested against the objects and policy of that Regulation, and accordingly will be narrowly confined to cases in which the risk of conflicting judgments is very clearly made out (an example would be if an obligation to provide maintenance were conditional on a marriage relationship actually continuing, and a court in another member state had been asked to dissolve the marriage, thereby bringing the relationship on which the obligation depends to an end: cf Hoffmann v Krieg (Case C-145/86) [1988] ECR 645, a decision on article 27(3) of the Brussels Convention, which was concerned with irreconcilable judgments). The risk should be direct, real and present, not a speculative possibility."
"Article 3(c) of the Maintenance Regulation does not establish that proceedings concerning the marital status of a person must be regarded as related proceedings for the purposes of article 13. It merely adds a jurisdictional option which the maintenance creditor is entitled to choose, if she wants to. To give it wider significance than that would undermine the fundamental object of the Maintenance Regulation to protect the interests of the maintenance creditor by giving her the choice of where to litigate her claim for maintenance, since it would enable the opposing spouse, who is the maintenance debtor, to choose where to sue in relation to the question of marital status and then to argue, by reference to article 13, that the maintenance creditor's maintenance claim must be brought in the same place."
"Even if, contrary to my view above, a maintenance debtor might in principle be able to bring a claim of his own which in some sense comprehends a maintenance claim by the maintenance creditor against him and then argue that, as regards a maintenance claim brought by the maintenance creditor herself, either his claim involved the same cause of action between the same parties for the purposes of article 12 or was a related action for the purposes of article 13 of the Maintenance Regulation, that would not assist the husband on this appeal. The interpretation of the definition of "related action" in article 13(3) has to reflect the policy and objects of the Regulation. The definition in article 13(3) must be strictly applied, since if the husband sought to maintain such an argument he would be seeking to rely on article 13 to derogate from the fundamental object of the Maintenance Regulation (as replicated in Schedule 6 for intra-state cases) to provide a right for the wife, as maintenance creditor, to choose where to bring her maintenance claim; and he would be seeking to do so by reference to an action brought by himself which relates to marital status or the division of matrimonial property rather than maintenance. The special jurisdictional regime for maintenance claims is not lightly to be regarded as supplanted by the operation of a distinct jurisdictional regime designed for different types of case."
"I would start by noting that article 12 and article 13 must be dealing with different situations, otherwise there would be no point in having both of them. If the two sets of proceedings in question were maintenance claims by the wife against the husband, one could expect the situation to fall within article 12 (same cause of action, same parties), so article 13 must be intended to extend further than that. In contrast to article 12, it does not require that the proceedings involve the same cause of action between the same parties. It is focused instead on "related actions". The ambit of this category is to be ascertained from article 13(3), which I think is intended to be a complete definition. Related actions are, accordingly, actions which are "so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings". Articles 13(1) and 13(2) concern only "related actions" which come within this definition, article 13(1) referring to the situation "Where related actions are pending" and article 13(2) referring back to this in its opening words "Where these actions are pending".
"85 It is plain from article 13(3) that the actions have to be closely connected. But that is insufficient to define a related action for the purposes of the article. Actions could be said to be closely connected if they were both brought by the same litigant, but if one action was against a retailer in respect of a defective domestic appliance and the other was a petition for divorce, no one would suggest that they were related actions for article 13 purposes. The reference to avoiding the risk of irreconcilable judgments is vital, therefore, in fixing the boundaries of the category.
89 So what sort of proceedings are likely to be closely connected in a way which would give rise to a risk of irreconcilable judgments within the meaning of article 13(3)? I do not intend to oer a definitive answer to this question all that is required is to determine whether the two sets of proceedings in this case were related actions, and further mapping out of the territory of article 13 ought to wait until it is required to cater for other facts. But examples of the sorts of situations that might fall within article 13(3) can still be helpful in ascertaining its meaning. Two such useful examples can be found in the husband's written case. They are: (1) where a spouse is being pursued for maintenance by his or her first and second spouse at the same time, and (2) where there are child maintenance proceedings in one court, and spousal maintenance proceedings in another (assuming of course that these are considered to be two separate causes of action). Lord Sales JSC suggests the situation where there are cross-applications for maintenance, by the wife against the husband in one part of the United Kingdom and by the husband against the wife in another (see para 44 of his judgment). He gives a further example at para 45, inspired by the case of Hoffmann v Krieg (Case 145/86) [1988] ECR 645. Another possibility might be where one spouse (say, the wife) applies for maintenance from the other spouse in one part of the United Kingdom and, in another part, the husband applies for an order against himself (see Dart v Dart [1996] 2 FLR 286, 292). Again, this would depend on whether or not the two actions were, in fact, classed as "proceedings involving the same cause of action" and therefore within article 12 rather than article 13. It is also worth noting that, in this last example, there would need to be consideration of the point made by Lord Sales JSC, at para 46 of his judgment, about the potential problems of a maintenance debtor choosing the jurisdiction for a maintenance claim. But, in all of these examples, it is possible to foresee that, depending on the precise facts, there could be a risk of the two courts giving irreconcilable judgments."
i) First, they stand in stark conflict with the fundamental principles I have summarised above, in particular they conflict with:
a) the principle that the Maintenance Regulation is intended "to offer special protection to the maintenance creditor as the weaker party in such proceedings" and its corollary that
b) the maintenance creditor has an "unfettered" right to bring her application before any of the courts where jurisdiction can be established under Articles 3(a)-(d), and thus to choose the jurisdiction she believes to be most beneficial for her either on grounds of its convenience for her or because she believes that the law it will apply is more advantageous for her.
ii) Secondly, they misinterpret and misapply the word "defendant" in Articles 3(a) and 5. In the present case the "defendant", within the meaning of the Maintenance Regulation, is F, not M.
iii) Thirdly, they fly in the face of the principle, as explained in Villiers, that Article 3 does not entitle a maintenance debtor (here F) to pick a jurisdiction and commence proceedings seeking declaratory relief regarding the extent of any maintenance obligation he might have.
iv) Fourthly, they misinterpret the meaning and effect of Article 12 as explained in Villiers by Lord Sales JSC and Lady Black JSC. I might add that the argument would, in my judgment, fare no better if founded on Article 13 rather than on Article 12, to which Mr Amos nailed his colours.
v) In short, Mr Amos seeks to argue that F is entitled to adopt what Lord Sales JSC in Villiers, para 56, referred to as "a stratagem to determine the jurisdiction in which [the] maintenance claim should be heard." He is not.
The Maintenance Regulation: reflexive effect?
"I have referred to the arguments that article 22 and article 28 should be given a 'reflexive application', although the expression does not, as I understand it, have a precise meaning. (I have, as I think is conventional, referred to the question in terms of whether article 22 should be given a reflexive effect, although it might also be expressed in terms of whether this effect should be given to article 25, but that is only semantics.) It covers at least three lines of argument that in some circumstances the court may decline jurisdiction or stay proceedings in favour of the jurisdiction of a non-member state, and that Owusu does not (or does not always) preclude the court from doing so.
(i) The most rigid reflexive theory would require the court to apply provisions of the Brussels Regulation by analogy, as though non-member states were member states, so that:
(a) the court would not have jurisdiction in a case that would be covered by article 22 (or at least the relevant parts of article 22) if the non-member state were a member state; and
(b) in a case that would be covered by article 28, the court would have similar discretion as in a case where the related action was before a court of a non-member state.
(ii) The most flexible reflexive theory would afford the court discretion whether or not to accept jurisdiction in cases involving issues covered by (at least the relevant parts of) article 22, exclusive jurisdiction agreements, lis alibi pendens and related actions.
(iii) The third theory would allow the court to exercise powers available under the doctrines of national law in cases where, had there been a similar connection with a member state, the court would have had to decline jurisdiction."
"The argument that the law does require a reflexive application of these articles of the Brussels Regulation (rather than the law should do so) does not, as I see it, suppose that the Brussels Regulation itself confers on the court the power to decline jurisdiction or stay proceedings. Rather it is that the Regulation allows the court to exercise the powers available to it under its national law: here the CPR include a power to 'stay the whole or part of any proceedings or judgment either generally or until a specific date or event' Its proper exercise is not unfettered, in that the court must not order a stay that is contrary to the letter or purpose of the Brussels Regulation. The argument for giving some articles reflexive effect is that this is required in order to give effect to the purpose (albeit not the letter) of the Regulation. If the court accepts this argument and therefore decides not to accept jurisdiction, to my mind the proper form of order is to stay the proceedings."
"154 As I have said, there are differing views about whether, if article 22 has a reflexive application at all, that application is mandatory or whether the court has discretion whether or not to apply it. I received only brief submissions about this. Having decided that the article has a reflexive approach to these proceedings, I conclude that it is a matter of discretion whether the court should or should not assume jurisdiction, for three main reasons:
(i) First, there appears to me no reason of principle or policy that the reflexive application of the article should be adopted slavishly and it is inappropriate to do so.
(ii) Secondly, a mandatory rule would require the court to refuse to assume jurisdiction in favour of courts in which the parties would not receive justice (or where there was a real risk that they would not do so).
(iii) Thirdly, the machinery of the English court whereby it refuses to assume jurisdiction in a case such as this, is, as it seems to me, to grant a stay under the CPR or its inherent jurisdiction, a power that is inherently discretionary.
155 I conclude that I should exercise my discretion to grant the stay. Whatever the precise considerations that should bear upon the exercise of the discretion (about which I did not receive submissions and I decline to express unnecessary views), having rejected Ferrexpo's argument that there is a real risk that they will not receive justice in the courts of Ukraine, there is, to my mind, no significant argument in favour of the court assuming jurisdiction. Against that there are powerful reasons that the dispute should be decided in Ukraine (if it cannot be resolved without litigation), in particular:
(i) That there is now most likely multiplicity of proceedings and therefore a risk of inconsistent decisions will be avoided; and
(ii) That other parties interested in the dispute can be joined, and indeed have been joined, in the Ukrainian proceedings."
"the Conventions, including the Lugano Convention, do not purport to cover proceedings in third states and nothing in the language of the Conventions precludes the application of their provisions by analogy (emphasis added)."
When the Court of Appeal referred to the "application of their provisions" they meant, of course, application by our national law. In contrast, the Maintenance Regulation in Recital (15) explicitly proscribes any referral to national law. This sets the Maintenance Regulation apart from the original Brussels 1 regulation and the Lugano Convention. That, in my judgment, is really the end of the argument. The application of the doctrine contended for by Mr Amos is simply inconsistent with Recital (15) and its associated jurisprudence. If a Convention or Regulation deals, expressly or impliedly, with the question whether priority should be afforded to a pre-existing identical or similar action in a non-EU state, and if so how, then that is the end of the matter. Here, recourse to domestic remedies which might be thought to have analogous, or nearly-analogous, effects is precluded by the terms of the Maintenance Regulation itself.
i) this court has jurisdiction to hear M's claim for maintenance, subject always, that is, to her being able to found the burden of establishing that being, of course, on her jurisdiction under Article 3(b) of the Maintenance Regulation, on the basis of habitual residence;
ii) the court has no jurisdiction to grant F the stay of proceedings which he seeks.
The Maintenance Regulation: habitual residence
" the phrase 'habitually resident' in Art 3(1) [of BIIR] has the meaning given to that phrase in the decisions of the CJEU, a meaning helpfully and accurately encapsulated by Dr Borrαs in para [32] of his report [Explanatory Report on Brussels II prepared by Dr Alegrνa Borrαs (Official Journal of the European Communities, C 221/27, 16 July 1998)]:
'the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence'
and by the Cour de Cassation in Moore v McLean [iv 1θre 14 December 2005 (B No 506)]:
'the place where the party involved has fixed, with the wish to vest it with a stable character, the permanent or habitual centre of his or her interests.'"
" it must be stated that, in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence. However, the Regulation does not lay down any minimum duration. Before habitual residence can be transferred to the host state, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character. Accordingly, the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence, and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case."
Comparison of the French and English versions of the judgment suggests that "stability" rather than "permanence" is what the CJEU had in mind: DL v EL (Hague Abduction Convention: Effect of Reversal of Return Order on Appeal) [2013] EWHC 49 (Fam), [2013] 2 FLR 163, paras 71-81, endorsed by the Supreme Court in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] 1 AC 1, paras 51 and 80(vii).
"[Ryder J] considered the relevance of a party's intention when considering their centre of interests, and accepted that intention forms a part of the court's overall assessment and that it takes its place as one of the facts in the case (at para 44). Mr Scott argues that this introduces an undesirable element of uncertainty. If intention were synonymous with the subjective, capricious wish-fulfilment of one party, I would agree. The test for habitual residence is objective. But what is meant by intention here is no more than another way of bringing into play the reasons for the parties' actions. Concepts such as 'permanent', 'habitual', 'residence' and 'home' have a mental element which the court is well able to assess objectively. I therefore agree with Ryder J in this respect."
"In making an assessment of the party's motives in living within a particular jurisdiction, account can be taken of his or her own evidence; but the question is an objective one to be viewed and tested alongside all the other various factors and pointers. The party's own statements are clearly in the nature of 'special pleading' (' she would say that, wouldn't she?') and so, such evidence is to be looked at with considerable scepticism and caution."
"Therefore, the answer to the second question is that the concept of "habitual residence" under article 8(1) of the Regulation must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case."
"I conclude that the modern concept of a child's habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed B. The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it."
"The identification of a child's habitual residence is overarchingly a question of fact. In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub-rules but expectations which the fact-finder may well find to be unfulfilled in the case before him: (a) the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state; (b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that requisite degree; and (c) were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it."
Habitual residence: the facts
"M is a 'forum shopper' and guilty of litigation-tourism, in the sense that [she] is moving herself to take advantage of what she perceives as the more advantageous forum and, in order to do so, is dishonestly presenting herself as habitually resident in that forum (England) when in fact she was not."
He adds that "M's case is a 'put-up job'." In the event, and despite these very serious allegations, for most of the time in his cross-examination of M and in his final submissions, Mr Amos preferred the blander accusation that M was "over-egging".
"The costs expenditure reflects F's determination to prevent this court determining the appropriate level of financial provision for his daughter. He is prepared to deploy any argument to prevent M's application proceeding His strategy is no doubt designed to exhaust M or, at the very least, to force her to capitulate. Whatever F's motivation, he plainly does not have the best interests of his daughter at heart."
Mr Leech goes on to note what he calls "the remarkable tone of F's evidence, and the gratuitous attacks on [M]." He invites me to bear in mind the findings, seriously adverse to F, made by judges who have previously been involved in these proceedings. I decline to do so: they are not relevant to the only issues before me today which, as it seems to me, are to be judged on the basis of the materials put before me and, in particular, the oral evidence which I, unlike the previous judges, have heard from both M and F.
i) From 2004, when she was about 22, until 2014 she lived in this country, going to Finland only for visits to her family.
ii) After she became pregnant, she moved in February 2014 to be with her mother and step-father in France. That move was originally intended to be temporary and short-term. In the event she stayed in France, with C, until August 2019.
iii) By the early part of 2019, she was thinking of returning home (as she saw it) to this country. Attempts to start a business had foundered and M had become increasingly disenchanted with the education C was receiving. In significant part, the driver was her view that the schools available for C in France were not suitable and that a plan to put C in school in Monaco had never got off the ground.
iv) In June 2019, she came to London on a reconnaissance trip, to find accommodation and arrange a school for C. On 31 July 2019 she signed terms and conditions, subject to contract, for an assured shorthold tenancy of a flat in London (Flat A) for a term of one year from 28 August 2019, subject to break clauses, at a rent of £1,365 per month, paying six months' rent upfront. And it was during this visit that she first consulted her English solicitors a fact disclosed only during the hearing in front of me.
v) On 28 August 2019, she and C flew to London and moved into Flat A. Official records show her council tax liability starting on that date. Documents that M has produced show that on 30 August 2019 she entered into a contract for a UK mobile phone number, that on 2 September 2019 she and C registered with a dentist in London and that on 23 September 2019 she and C registered with a NHS GP in London. Further documents produced by M show that C started having both ballet and piano lessons in September 2019.
vi) During September 2019, C started at the B primary school in London. M's preferred choice, the C primary school, did not have a place available at that stage, so C was placed on the waiting list. On 3 December 2019, the local education authority wrote to M saying that a place was now available for C at the C primary school. C started there in January 2020 at the beginning of the next term.
vii) A letter from the Home Office dated 2 June 2020 acknowledged receipt of M's application under the EU Settlement Scheme, that application having been made, as M told me, online. A further letter from the Home Office dated 30 June 2020 stated that M's application under the EU Settlement Scheme had been successful and that she had been granted Limited Leave in the United Kingdom, also referred to as pre-settled status. A similar letter from the Home Office dated 19 September 2020 referred in the same terms to C.
viii) Following a burglary in Flat A in July 2020, M on 29 September 2020 entered into an agreement for a tenancy of another flat (Flat B) for a term of 2 years from 14 November 2020.
ix) A detailed examination of M's bank statements, which Mr Leech understandably felt obliged to undertake in the face of F's expressed scepticism, showing M's debit card and contactless card payments, demonstrates that, from their arrival in London on 28 August 2019 onwards, M was making the kind of payments for food, clothes, living expenses and so on that one would expect a mother living there with a child to be making.
x) M is unemployed. She has been trying to establish a wellness business but that venture has been stymied by the covid-19 pandemic and its associated restrictions.
"1 Copies of bank statements for the 7 accounts listed in her Form E for the period from 1 January 2019 to date save for the period already provided;
2 Please confirm who the account with number belongs to. If your client has an interest in this account, please provide statements from 1 January 2019 to date;
3 Confirmation of whether your client and/or [C] has a beneficial interest, directly or indirectly, in any other bank accounts not listed in your client's Form E. If so, please provide statements for the period from 1 January 2019 to date;
4 Bills in respect of all of your client's or [C]'s mobile phone accounts in whatever jurisdiction (including roaming details). It appears your client took out a contract with August 2019 but then appears to make payments to We require copies of bills for all your client's mobile phone accounts including but not limited to the following known numbers for the period from 1 January 2019 to date;
5 Copies of council tax demands throughout the period your client claims she has been in England;
6 Copies of all utility bills from August 2019 to date;
7 There is no mention of credit cards in your client's Form E but we assume that she has some. Please disclose all credit card statements from January 2019 to date;
8 Details of any UK and Non-UK memberships e.g. clubs, gyms, societies, held since 1 January 2019 to date;
9 An explanation & proof of the 'ownership' of the 2 flats in Cannes. In particular, please provide the Memorandum of articles, certificate of incorporation and shareholder register for (and proof of its ultimate beneficial ownership), and annual accounts for fiscal years 2014 -2020, including bank account statements for the same period;
10 Documentary evidence of insurances for the apartments in Cannes for the period from 1 January 2019 to date;
11 Please confirm the date your client first consulted your firm and any other English solicitor;
12 Proof of your client's registrations with UK/French/Monagasque GP's and dentists for the period from 1 January 2019 to date;
13 Please provide details of all doctors and dentist appointments for your client and [C] in the period from 1 January 2019 to date;
14 Please provide a copy of your client's (and [C]'s) applications for settled status (we only have a copy of the Home Office's response of 2 June 2020) and any earlier applications your client made;
15 Please provide copies of your client's UK and French driving licenses;
16 Please provide a copy of the insurance contract from August 2019 to date;
17 Please provide copies of all the pages of [C]'s French carnet de santι;
18 Please confirm whether and where your client has stored her furniture;
19 Please provide details of all your client's cars from 1 January 2019 to date including details of the make and model, registration papers, insurance papers and if disposed of, the date and proceeds of sale;
20 Please provide details of [C]'s ballet school classes in France;
21 Please provide details of all companies and/or trusts in which your client and/or C has a beneficial interest, directly or indirectly, or has had for the period from 1 January 2019 to date;
22 Copies of all pages of all of your client's and [C]'s passports since [C]'s birth to date; and
23 Please complete the enclosed schedule in relation to the source of funds and specific transactions on your client's bank statements."
The letter spelt out that if the information required was not provided, I would be invited to draw adverse inferences.
i) M, he says, was over-egging the pudding when asserting that London was her "only adult home". He questions whether her residence there went as far back as 2004 (drawing attention in this context to the information, derived from her, in the official Finnish Register) and says she suppressed the facts, extracted from her only in the course of cross-examination, that during the period from 2004 to 2014 she had spent nine months travelling in Canada and another four months in Asia.
ii) He asserts that she overstated the nature of her relationship with F, not least given the limited number of times on which, as she conceded, they had met.
iii) He observes that, in her written evidence, M had repeatedly used the word "temporarily" to describe her residence in France notwithstanding that she had been living there from February 2014 to August 2019. This, he submits, was an example of M trying to downplay her connections to France.
iv) He notes, correctly having regard to ongoing discussions with F about the possibility of C going to school in Monaco, that M's decision to move to London cannot have crystallised as early in 2019 as she would have me accept.
v) He draws attention to the fact that, as she had to admit, she had sought to persuade F to make a false declaration about C living with him in Monaco in order to get her a school place there. She sought to justify this on the basis that lots of people do it, so it was not a big thing she was asking; also, a point in her evidence which I had difficulty in following, on the basis that she would be the one driving C to and from school.
vi) He points to her claim, in a witness statement, that she had "de-registered" her business in France in November 2019, as being false. The purpose of the assertion, he says, was as part of her attempt to demonstrate that she was taking active to steps to sever her ties to France. In cross-examination M had to accept that in fact she took no steps to deregister her business. Moreover, as Mr Amos correctly pointed out (and I noted it at the time) it was noticeable how she fenced the question and gave an explanation that what she was trying to convey was that she wanted to move the concept of her business from France to England which simply was not credible. As Mr Amos commented, M is an intelligent, articulate woman with a degree in business administration, and, while English is not her first language, she was able, as was obvious to me, to understand and express herself perfectly clearly throughout her evidence, when she wanted to.
vii) He emphasises the sentence in one of M's witness statements "Since we moved to London, [C] has attended [C] Primary School", while omitting to mention the B school which C had previously been attending. The impression that M was seeking to convey, he suggests, was one of stability and C being settled. The inference as to the reason for the omission, he says, is obvious: by revealing that C had been at B school and left after only a term would undermine that picture of stability and C being settled. And, as he points out, it was not, as we now know, until January 2020, after the date for assessing habitual residence, that C started at C school.
viii) In relation to the burglary of Flat A, he points, as an egregious example of her behaviour, to M's insinuation in these proceedings that F was involved, although she did not make this claim to the police. (He also points, as a separate matter, to various omissions and discrepancies in her evidence about the burglary which there is no need to elaborate.) He submits that there was, and is, not a shred of evidence to support the insinuation, vehemently denied by F, that he was somehow involved, and that F is entitled to say this was a smear-attempt, M falsely implicating him within the proceedings, but not to police, to damage F's credibility. M has been asked to retract the allegation, but no retraction has been forthcoming.
ix) He points out that, as she was forced to concede, M gave a deliberately false address in a witness statement when saying, some weeks after she had moved to Flat B, that her address was Flat A. That was a deliberate decision for, as she explained, she did not want F to know her new address. It was, he says, a falsehood which cannot be ignored or excused.
x) Only during cross-examination did M reveal that some personal belongings were still in France.
i) M accepts she never suggested to F that she was thinking about moving to London, let alone had made up her mind to move there. She accepts that she did not seek an increase in C's maintenance from him prior to her move. If M was intending to leave France and to re-locate permanently to London, why not send F even a single text (or WhatsApp message) about this? But it is accepted that she did not raise it with him at all. This is, Mr Amos suggests, particularly baffling if M is (as she claims) totally financially dependent on F. How was she going to afford to live in London? Had she assessed what it was going to cost for her and C to live in central London? How was she to fund herself and C, particularly without any family support or childcare?
ii) On M's own case, London was and remains unaffordable without a very substantial increase in the payments from F. So, in moving as M now says she did in August 2019, unilaterally and without consent, warning or even notice, M launched herself, and her 5-year-old daughter, on a very high-stakes course.
iii) As at 26 November 2019, M still had connections with France and, he submits, no significant connections with England prior to 29 August 2109. Taking a 6-month tenancy in London and arriving with 3 suitcases for herself and C (and some carry-on luggage) was not sufficient to move her centre of interest. The facts here are very different from those in Marinos.
iv) The fact that M changed C's schools within just a few months of C starting school in this country, is hardly an indication of C having settled and integrated by 26 November 2019. On the contrary, says Mr Amos, it provides a window into the lack of stability that was a feature of their presence in England at that time.
v) Of Flat A, M said (unsolicited) that "no child should be living in that condition". Yet that is what she chose to do. This part of her case, says Mr Amos, simply doesn't make sense. Why was M moving to a place which in her words "no child should be living"?
vi) M has no credible explanation of how she was going to fund her and C's lifestyle living in central London. We know that she registered a company, but, as Mr Amos points out, there is no evidence of economic activity at all. Her claim that the pandemic put paid to that does not, he observes, explain the absence of economic activity between September 2019 and March 2020.
vii) Referring to M's comment in her evidence, "Dreams come true so I guess it's very real realistic", Mr Amos asks rhetorically how this can be said to be compatible with arrangements which are, to adopt the language of the cases, "planned, purposeful, or permanent/stable".
i) M had by 26 November 2019 M established, with the necessary degree of permanence and stability, her centre of interests in London; and
ii) by that date C had acquired a sufficient degree of integration in a social and family environment.
A final comment
" one of the primary objectives of the Convention is to simplify jurisdictional rules and to eliminate expensive and superfluous litigation. A divorcing couple that has to litigate the consequences of the marital breakdown is not blessed. The couple that first litigates where to litigate might be said to be cursed. In reality it is a curse restricted to the rich. Only they can afford such folly. This case is a paradigm example. Let me assume that the husband is a man of means. The wife is said to be destitute. Yet she has incurred costs here of £153,000 The husband's costs are put at £108,000 in this jurisdiction. By contrast the costs in Germany are said to be £11,000 for the wife and £2,600 for the husband. The inevitable comparison should give the specialist practitioners in London pause for thought."
"Most of the key documents, having originally been exhibited to various affidavits, were scattered through the bundle in neither chronological nor thematic order. The index to the bundle was virtually useless, as it did not condescend to list the various documents contained in the various exhibits. The consequence was that any kind of sustained pre-reading in particular of the key documents, was virtually impossible."
That precisely describes the situation with which I was faced in the present case, gravely exacerbated by the deplorable facts (a) that there was very extensive duplication, re-duplication and worse and (b) that many of the documents, as demonstrated by the fact that they were not referred to by anybody, were completely irrelevant to the issues before me. One small example of just how chaotic the bundle was is that the letters dated 2 June 2020 and 30 June 2020 from the Home Office were respectively at C191 and C451. Further comment is superfluous. I forebear from further judicial exhortation to comply with the Practice Direction. Previous experience suggests that it is merely a waste of breath: consider Re L (A Child) [2015] EWFC 15, [2015] 1 FLR 1417, paras 8-25. It is now more than twenty-one years since 10 March 2000, when the then President, Dame Elizabeth Butler-Sloss P, issued Practice Direction (Family Proceedings: Court Bundles) [2000] 1 FLR 536. How many more years decades have to pass before those who ought to know better, and who, as in the present case, are being more than handsomely remunerated, comply with their obligations?