Miss J v Dr P [2007] EWHC 704 (Fam)

[2007] EWHC 704 (Fam)Case No FD06P02044
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 March 2007
Before
THE HON. MR JUSTICE SUMNER
Between
Miss JApplicantDr PRespondent
Mr Richard Todd (instructed by Mishcon de Reya Solicitors) for ApplicantMr Timothy Scott QC and Mr Robert Peel (instructed by Charles Russell Solicitors) for RespondentHearing Hearing dates: 5 & 6 March 2007
Judgment

Introduction

[1]The Applicant mother Miss J, is a 45 year old German national living in London. The Respondent father Dr P, is a 50 year old Italian living in Bologna. They had a short relationship between 1998 and 2001. They have a 6 year old son, M. He was born in Germany on 25 May 2000. It is common ground that the father’s contact with M has been infrequent.[2]Each blames the other for this. The mother says that she tried to foster a relationship between M and his father. This was without success. The father says that their interactions became strained. Regular contact with M was no longer possible. For about the last 3 years the father has paid €3,000 per month for the maintenance of M.[3]The mother lived with M both in Germany and Italy. In early 2006 she moved with him to London. She considered it would be better for M’s education. It would also give her better employment opportunities in financial services. She has worked in that sector but not on a regular basis. Her means are limited. The father runs a wealth management business in Italy and has a substantial fortune.

The issue

[4]In July 2006 the father issued a petition in Italy relating to the status of M. He sought consequential orders.[5]In October 2006 the mother issued proceedings in England seeking financial relief in respect of M. In January 2007 the father issued an application in England for a stay of the English proceedings. That is opposed. It gives rise to the issue I now have to determine, namely whether to stay the mother’s proceedings or not.[6]On 6 March 2007 the mother issued further proceedings in England. She sought orders in respect of custody and contact. She also sought a determination of which school in London M should attend. I now consider those proceedings in more detail.

Proceedings in Italy and England

[7]On 28 July 2006 the father issued a petition pursuant to Article 250 of the Italian Civil Code in the Juvenile Court of Bologna. He sought a decision from the court that recognised M as his natural son and sought his registration as such. He also requested: i) An authorisation that M should take his surname. ii) A decision that M should be entrusted to the parents jointly with regulation of the time when he should see the parent with whom he is not living. iii) A decision that he should contribute to M’s maintenance and the equity of his present contribution.[8]The mother was not served with the proceedings. At a hearing in Bologna without notice on 30 August 2006, a hearing date for the proceedings was determined for 30 January 2007. The father was required to serve his petition on the mother by 30 November 2006. This took place on 21 November 2006.[9]Meanwhile on 12 October 2006 the mother issued an application in London under Schedule 1 of the Children Act 1989. She was unaware that proceedings had been begun by the father in July 2006. By her application she claimed financial provision from the father for M’s accommodation and to meet his income needs. She sought orders for a lump sum, a settlement of property, and periodical payments.[10]On 8 January 2007 the father applied in London for a stay of the Schedule 1 application made by the mother in October 2006. On 9 January 2007 a detailed statement of defence was put in on behalf of the mother in relation to the father’s petition in Italy. It challenged the basis of the father’s legal action. It mentioned the proceedings which she had brought in England. It raised a number of other issues.[11]On 30 January 2007 there was a hearing in the Bologna Juvenile Court with 3 Judges presiding. Both parties were represented by lawyers. The father stated that his claim was aimed at obtaining recognition of M as his son against the opposition of the recognition by the mother. The court bore in mind the questions relating to jurisdiction and applicable law. It deferred the case to a hearing on 3 April 2007. This was to allow for recognition of the child by the father with the necessary consent of the mother. It was said that that was presently missing.[12]It is common ground that the father’s paternity of M had already been established by DNA testing in England. This was prior to the issue of his petition. The mother has publicly acknowledged the father’s paternity since M’s birth.[13]On the second day of the hearing before me, 6 March 2007, the mother issued a further application within the English jurisdiction. By that application she sought i) A custody order in respect of M. ii) A defined access order relating to the visitations between the father and M. iii) A specific issue order.[14]Specific issues arise under section 8 of the Children Act 1989. It is concerned with particular disputes between parents which one of them asks the court to determine. In this instance the mother seeks a determination about which school in London M should attend. She wishes him to remain at the private school which he is presently attending. The father wishes him to attend another private school, the International School.

The hearing and representation

[15]The mother’s application came before me on 5 and 6 March 2007 when I reserved judgment. The father was represented by Mr Scott QC together with Mr Peel. The mother was represented by Mr Todd.

Brussels I and the mother’s habitual residence

[16]Both parties accepted that the father’s application for a stay was governed by Council Regulation (EC) NO 44/2001 of 22 December 2000. It is referred to as either Brussels I or the Judgments Regulation. I shall refer to it as Brussels I.[17]Pursuant to Article 5, the mother only had jurisdiction to bring her claim under Schedule 1 as the maintenance creditor if she was then domiciled or habitually resident in England. This was challenged by the father in the light of the information available at the time. Subsequently the mother provided further information. As a result Mr Scott, at the start of the proceedings, acknowledged that there was jurisdiction for a court in England to hear the mother’s application. This was of course subject to the father’s application for a stay.

The father’s case on the issue of a stay

[18]The proceedings issued by the father in Italy relating to M are the first in time. They involve the same cause of action as the mother’s later proceedings in England. That is the maintenance of M. They are between the same parties. Pursuant to Article 27, the court in England should, of its own motion, stay the application brought by the mother until such time as the jurisdiction of the Italian court is established.[19]If for any reason Article 27 does not apply, then the 2 sets of proceedings are related actions under Article 28. In those circumstances the court in England has a discretion whether it should stay its own proceedings. Decisions of the European Court make it clear that the discretion should be exercised in one way only. It is the one that avoids the risk of irreconcilable judgments resulting from separate proceedings. In this case that risk would obviously follow if both sets of proceedings were to continue. The court should decline to exercise its discretion in favour of the mother.

The mother’s case on the issue of a stay

[20]The father has failed to show that the petition he issued in Italy was for the maintenance of M. It was concerned only with status. The 2 sets of proceedings which the mother has now started in England concern financial provision for M, a custody and contact order, and a determination about which school M should attend. The 2 sets of proceedings do not therefore involve the same cause of action.[21]If, contrary to the submissions above, there was a maintenance element in the father’s petition, it was not sought in any formal sense. It was no more than an indication that he intended to continue to pay maintenance. The first formal application was by the mother. Accordingly for those additional reasons, the 2 sets of proceedings do not involve the same cause of action. They are not between the same parties as M is a party to the English proceedings.[22]Furthermore, under Article 22, the mother’s claim for property or a property adjustment order raises rights in rem. The exclusive jurisdiction for such proceedings is in the state where the property is situated, namely England.[23]At best, these 2 sets of proceedings are related proceedings under Article 28. A discretion arises under that Article. The overwhelming merits point to England as the proper jurisdiction in which they should be heard and determined.[24]Finally the father has agreed that the courts of England are to have jurisdiction. Under Article 23 that agreement grants exclusive jurisdiction to the courts of England.[25]The claims by the mother raise a wider jurisdiction. Mr Todd points to Council Regulation (EC) No 2201/2003 of 27 November 2003 (otherwise known as Brussels II). It provides for determination of jurisdiction in all matters of parental responsibility, rights of custody and rights of access with the exception of maintenance obligations. Under Article 8 the courts which have jurisdiction over such matters are those of the state where M is habitually resident. That is the English courts.[26]If this court accepts that it is for the Italian courts to determine whether it will or will not accept jurisdiction over maintenance, there is a risk. One country will determine the level of M’s maintenance and another country may determine custody, access, and other financial aspects including the cost of and choice of schools.[27]He points out that by Article 15 of Brussels II the courts of Italy, if they did have jurisdiction, can transfer the claim to England. That arises if they conclude England would be better placed to hear the case. This would be because of M’s particular connection and if it is in his best interests. All those matters and the merits point to the courts of England determining that it has jurisdiction over matters of maintenance and the other issues which have been raised.

The father’s response

[28]Mr Scott on behalf of the father does not accept any of the points raised by Mr Todd for the mother. He points to the fundamentally different approach under European law to concepts which, under English law, would be approached in a different way. It does not permit this court to consider matters of forum conveniens. It cannot take into account the merits or otherwise of the mother’s case, unless it comes strictly within one of the Regulations.[29]He emphasises the position under Article 27 of Brussels I. It arises if this court determines that both the Italian court and the English court are involved with the same cause of action between the same parties. It does not then need the application of the father to stay the proceedings. This is required of the court’s own motion until the courts in Italy have determined the matter of jurisdiction. There is in short no effective answer to the father’s application.

General considerations

[30]I have been referred to a number of different Articles under both Brussels I and Brussels II. Decisions both of the English courts and the European Court have been cited. The submissions have been wide ranging and well argued. It is not in my view necessary for me to review the full extent of those submissions. I shall refer shortly in my analysis and conclusions to the main points that have arisen. I bear in mind the other matters that have been argued.

The father’s petition and the claim for maintenance

[31]In the preamble to his petition of July 2006, the father said that he wanted to obtain a court decision that M was his son. He was prepared to take responsibility concerning his maintenance.[32]In the conclusions, he made this application to the court – “…………may the court……….. issue a decision that recognises M as natural son of P and orders to the Registrar in charge to register the sentence to be issued; And consequentially 2. Pursuant to art. 262, ………. Authorise the child to take the surname of his natural father by adding or replacing it to mother’s surname, and order the registration of the authorisation decree on his deed of birth, ……….. 3. Decide that the child be entrusted to the parents jointly, thus appropriately regulating the time and mode of frequentation of the parent with whom the child is not living; 4. Decide that the father contribute to the son’s maintenance and state the equity of the overall monthly contribution of €3,000, which could be revalorized year by year………..”

And consequentially

[33]Under Article 5 of Brussels I – “A person domiciled in a member state may, in another member state, be sued: ……… 2. In matters relating to maintenance, in the courts for the place where the maintenance creditor is domiciled or habitually resident or, if the matter is ancillary to proceedings concerning the status of a person, in the courts which, according to its own law, has jurisdiction to entertain those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties……….”[34]It is not in dispute that the mother is the maintenance creditor nor that she is habitually resident in England. It is accepted that the father is an Italian national and that he has lived and is domiciled in Italy. It is also accepted that, pursuant to Article 1, the Regulation does not apply to status. The question is therefore whether the father has raised a claim for maintenance within his petition.[35]Mr Scott takes two points on this. First of all he says, it is plain on the wording of the petition that the father has raised the issue of maintenance. It was open to him to do so. Within this jurisdiction a party can seek a financial provision order in favour of the other party (Dart v Dart [1996] 2 FLR 286).[36]Next this is a case where a question of the first court’s jurisdiction is raised in proceedings before a second court within another jurisdiction. It is clear law that the second court may not itself examine the jurisdiction of the court first seized. The first court is “undeniably better placed to rule on the question of its own jurisdiction” (Overseas Union Insurance Ltd v New Hampshire Insurance Co. (1991) ECR I – 3317).[37]Mr Todd submits that the question of maintenance only arose because the father wished to show that he was maintaining M. He was not seeking the opinion of the court on this matter. All the documents raised by the father within the Italian proceedings make his claim clear. It is the status of M and his relationship with the father which lay behind his petition. There is no question of disputing the jurisdiction of the Italian court where the claim has not been effectively raised by the petition.[38]He prays in aid a decision of this court given by Mr Justice Wall, now Lord Justice Wall, in the case of K v B (Brussels Convention) [1994] 1 FLR 267. The decision, though not binding on me, is of course of persuasive value. I refer shortly to the facts so its relevance can be understood.[39]The father lived in England. He issued proceedings in Italy in September 1992 relating to contact with his daughter. She lived in Italy with her mother. The father stated that once contact was regulated, he was prepared to pay maintenance in the amount decided by the Italian court.[40]In December 1992 the mother started proceedings for maintenance in England. In April 1993 the Italian court declined jurisdiction to deal with the question of maintenance referring the matter to the English court. The father appealed.[41]Before the appeal was determined, the mother’s application came before Mr Justice Wall. The father said that the Italian court was wrong in declining jurisdiction on the issue of maintenance. The mother argued that the English court proceedings were first in time. She claimed that the question of maintenance raised by the father was simply floated in the Italian proceedings.[42]Mr Justice Wall concluded that the father’s proceedings were indeed for contact. He was saying in effect that he wished for contact but was prepared to pay maintenance. This was not raising a claim to maintenance. Accordingly the proceedings in the English court were first in time and the court had jurisdiction.

Decision

[43]I have carefully considered counsels’ submissions. I have come to the clear conclusion that the father did raise the question of maintenance in his petition to the Bologna court in July 2006. The primary purpose of his petition was to raise the question of his status in relation to that of his son. Upon the foundation of that claim, he also raised matters of M’s name, custody, access and maintenance. They were for the court to decide as well as the issue of status.[44]Even if I were in doubt about that conclusion, I would defer a decision on that matter to the Italian court where the petition was issued. It is much better placed than I am to rule on the question of its own jurisdiction.[45]The case of K v B to which I have referred above can be distinguished. Firstly the father here is not saying that he was prepared to pay maintenance. He was asking the court to “state the equity” of his voluntary contribution. That means he was asking the Italian court to say whether the level of maintenance, which he was voluntarily making, was a fair sum. By implication, he was asking the court to determine what other alternative figure would be fair.[46]Mr Justice Wall was faced with a claim for maintenance which had already been rejected by the Italian courts for good reason. If he did not accede to the mother’s request, the issue of maintenance could not come before any court. That was a compelling consideration.[47]Finally the European jurisprudence has developed in the last 14 years. In particular it emphasises the right of the court first seized to decide its own jurisdiction, (Erich Gasser Gmg H v Misat SM [2004] 3 WLR 1070). This is particularly so now under Article 15 of Brussels II to which I have referred. The Italian court may not only decline jurisdiction but they also have power to transfer the substance of the matter to another member state. The same cause of action and the same parties.[48]Mr Todd raised a subsidiary argument. It was that, in the proceedings in the English court, the claim was not between the same parties as M would be himself a party to them. This stems, as I understand it, from the power that the court has under Schedule 1 of the Children Act. It can make an order requiring a parent to make a payment to the other parent for the benefit of the child. There is also power to make such an order to the child itself. I am not persuaded that this or any other considerations make M a party to the English proceedings. I reject this argument.

Related actions

[49]If I am wrong about Article 27 and the original proceedings did not include a claim for maintenance, I consider the position under Article 28. That states – “Where related actions are pending in the courts of different member states, any court other than the court first seized may stay its proceedings………… 3. for the purpose of this article, actions are deemed to be related when 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.”[50]Mr Todd recognises that the two sets of proceedings are, in relation to maintenance or support, close to if not related under Article 28. But he points to the discretion. He relies upon all the matters I set out later in paragraph 71 under the heading of forum conveniens. There is he submits only one way in which the discretion should be exercised. It is to refuse a stay.[51]Mr Scott says the proceedings are obviously related. There should be a stay because of the arguments previously set out in relation to the position of a second court. Furthermore the discretion is prescribed. It is “to improve coordination of the exercise of judicial functions within the Community and to avoid conflicting and contradictory decisions…….” (The Tatry (1994) 1-5439).[52]I have to hold that both of Mr Scott’s arguments are correct. A second court must defer to a first court on questions of jurisdiction. It applies in even more debatable circumstances. I consider this when analysing whether there was an agreement on jurisdiction. Furthermore the issues in relation to financial support are plainly related. Different questions arise in relation to some of the other claims. The impact of Brussels II may well be relevant on this.

Claim for tenancy

[53]Mr Todd submits that the mother’s claim involves one for a settlement of property for the benefit of M. It is either property to which either parent is entitled or which is specified in any order (Schedule 1 (2) (d)). Under Article 22, the court of the member state where any property is situated has exclusive jurisdiction. That arises where the proceedings have as their objects rights in rem in immovable property or tenancies of immovable property.[54]He argues that it arises because the mother is about to take a tenancy of a flat in London. It will form part of her claim in relation to the father. Therefore those proceedings will exclusively arise within the jurisdiction of the English courts.[55]I do not understand Mr Todd to be claiming that this ousted the right of the Italian courts to determine whether they should or should not exercise jurisdiction in relation to maintenance. It went however to the nature of the claims being brought. It showed the difficulties of having part of them potentially being heard in Italy when there could be other financial claims in any event arising in the English courts.[56]Article 22 is in these terms:
“The following courts shall have exclusive jurisdiction, regardless of domicile: 1. in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the member state in which the property is situated.”
[57]Mr Scott argues that it is not a proper matter for consideration when the tenancy itself has as yet not been entered into. It is at the moment no more than the mother’s intention. It is therefore not relevant to the matters before me.[58]Secondly it would not come under Article 22 because of the strict interpretation of the words “rights in rem”. This is not concerned with rights between the parties. It has to be a claim against the rest of the world (see Webb v Webb, the European Court reported at 1994 QB 696 and Prazic v Prazic [2006] 2 FLR 1128).[59]Finally it has been held by the European Court under Brussels I that, where a decision was solely concerned with division of property, for instance between spouses, that would not be enforceable under the Brussels Convention. However a decision to enable the spouse (or a child) to be provided for, or where the needs or resources of each party was taken into account, went to maintenance and was enforceable (see Van de Boogaard v Laumen [1997] 2 FLR 399).

Decision

[60]I am not satisfied that there are at this stage any proceedings which have as their objects right in rem in a tenancy. When they do arise, it is not a matter of asserting claims against the rest of the world. It can only be in relation to rights in personam. I accept that the cost of rent could include a sum by way of maintenance for M. It will however be a dispute between the parties not against the world.[61]I can see arguments arising over whether the tenancy has to be in being at the time that the claim is made. I defer a decision on that point. It does not strictly arise at this time. Finally so far as any claim in rem may arise, it does not impact upon whether I grant a stay. It is a matter for the Italian courts to determine whether the exclusive jurisdiction of the English courts should prevail.

An agreement

[62]Mr Todd points to the correspondence between the parties’ solicitors in England. He says that, on a proper construction, the father agreed to the English courts having jurisdiction to settle the disputes relating to M. Accordingly, under Article 23, the English courts have jurisdiction. This is disputed. It is said there is no clear agreement between the parties.[63]Article 23 states – “If the parties………..have agreed that a court or the courts of a member state are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction.”[64]There is a passage upon which Mr Todd relies in the correspondence between the English solicitors acting for the mother, and the father’s former English solicitors. It is in the father’s solicitors’ response to the issue and service of the mother’s Schedule 1 application a week before of 20 October 2006. It is in these terms – “Schedule 1 My client accepts that your client’s Schedule 1 application will proceed but instructs me this will close any further collaborative opportunities. However if, as proposed many times, it were postponed until a round-table meeting has taken place, your client may be reassured by this process.”[65]The father had already issued his petition. He had neither given notice of this nor served it. He is then served with English proceedings. In the first letter commenting on this, he accepted that the mother’s Schedule 1 application would continue. The point he was anxious to make was that it would stop any attempts to settle the matter amicably. What he sought was a postponement until such a discussion had taken place. Does the father’s acceptance that the mother’s application in England will proceed amount to an agreement giving the English courts jurisdiction?[66]The acceptance is not qualified as it might well have been. It is unambiguous. But the word “agree” does not appear. “Accept” is defined in the Concise Oxford Dictionary as “consent to receive…….answer affirmatively…”. “Agree” is defined as “consent (to proposal, statement, to do)”. The difference is not significant in this context.[67]I must interpret the wording of this international convention in a practical and commonsense way. I find that the father, in accepting that the mother’s application would proceed, agreed to the jurisdiction of the English courts. He made a clear choice.[68]It was not in isolation. Within two weeks he was also actively participating in the instruction of an English child psychiatrist. This was to resolve differences between the parties, in particular about contact. I hold that the father did agree that the English courts should have jurisdiction. It is within Article 22.[69]That is not the end of the matter. Mr Scott refers me to the Erich Gasser case. There it was held that, where a second court had jurisdiction granted to it by agreement, nevertheless it had to stay the proceedings. This was so that the first court could determine whether it had jurisdiction.[70]The decision has been heavily criticised by a leading academic, Professor Briggs of Oxford University (see Briggs and Rees ‘Civil jurisdiction and judgments’ 4th edition, paragraph 2.207, “a judgment of some force but no strength”). It is however binding on me and conclusive on this point. I confess to little enthusiasm for the result.

Forum conveniens

[71]I therefore turn to Mr Todd’s last point. He points to a number of different aspects of the litigation. All of them he argues, point to the advantages of the litigation being heard in England. They include the following: i) M is habitually resident in England. He is attending school here and will continue to do so. ii) Were the Italian courts to decide that they should exercise jurisdiction in relation to M’s maintenance, it would involve a consideration by them of a) the cost of renting or purchasing property in London, b) the level of maintenance appropriate for a child living in London, c) the appropriate level of school fees to be paid by the father in respect of alternative schools in London, iii) There is a good likelihood that questions of custody, access, and the choice of school will, under Brussels I and II, be determined in London, iv) The father has already agreed to the litigation continuing in England.[72]Mr Scott’s response to this is to say that respect for the principle of legal certainty has to prevail. There is no room for the application of the doctrine of forum conveniens so far as the English courts are concerned (see the decision of the European Court in Owusu v Jackson [2005] 2 WLR 942).[73]I have to accept that there is no aspect of the doctrine of forums non conveniens upon which I can properly rely given my earlier conclusions. These are however important and relevant points to be raised before the Italian court. This judgment may assist by setting out the number and variety of the claims which have to be resolved.

Conclusions

[74]It is because of the range of the practical points which arise in London that I reach my conclusion with a degree of regret. I acknowledge of course the jurisdiction of the Italian courts. Nothing that I have said should of course be interpreted as casting any doubt upon their right to determine what matters are within their jurisdiction. They alone decide whether they should or should not exercise that jurisdiction, given the matters both before them and those raised in the English courts.[75]Therefore, pending the decision of the Italian court, in my judgment I should grant a stay. I will reserve the question of costs on which the father’s consent to the English jurisdiction may well have some bearing.

Cited in 2 later judgments