“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.”
“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.” 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 …” 27.In relation to Article 5, the court said this (para 32): “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”
“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 o›er 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 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.” (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. 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).”
“… 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 Borrás in para [32] of his report [Explanatory Report on Brussels II prepared by Dr Alegría Borrás (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 1ère14 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.’” ‘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’ ‘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.’”
“[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 prearrangements 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.”
“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.”
“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.”
“1 Copies of bank statements for the 7 accounts listed in her Form E for the period from1 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 from1 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 from1 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 from1 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 since1 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 from1 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 from1 January 2019 to date; 13 Please provide details of all doctors and dentist appointments for your client and [C] in the period from1 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 of2 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 santé; 18 Please confirm whether and where your client has stored her furniture; 19 Please provide details of all your client’s cars from1 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 from1 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.”
“… 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.”