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EA v AP [2013] EWHC 2344 (Fam)

Jurisdiction dispute as to whether a Schedule 1 to the Children Act 1989 claim issued in England by the wife should be stayed because the Husband had already issued proceedings in Italy

The issue before Parker J was whether, by reason of the Maintenance Regulation, Council Regulation (EC) No 4/2009 (which came into force on 11/6/11) the English court was precluded from proceeding with the wife's Schedule 1 to the Children Act 1989 application because of proceedings in Italy, and specifically, whether the "Lis pendens" provisions in  Article 12 were engaged.

The parties were married and Italian.  They lived all of their married life in London.  The family is habitually resident in this jurisdiction whether an English or autonomous European Union test is applied.  The husband is a hedge fund manager and his fund is worth approximately £30 million.  The parties have valuable London properties and enjoy a high level of income.  The wife says that she can establish that the parties' expenditure on themselves and their children was well in excess of £300,000 p.a.  The husband applied to stay the wife's application for Schedule 1 provision for their two children, aged 9 and 4.  He contends that the only jurisdiction in respect of provision for the children is in Italy where his matrimonial proceedings were issued first in time.  The wife concedes that were the Italian court seised of child maintenance then there would be no jurisdiction here but she says that it is not so seised.  The parties perceive that the jurisdiction of his or her choice gives one of them an advantage over the other.

The husband's petition for separation (a necessary precursor to divorce in Italy) was issued in Milan in February 2012 and is based upon the parties' Italian nationality.  There was no dispute that the husband was entitled to issue such a petition and that it properly engaged the Italian jurisdiction.   The husband sought, inter alia, a pronouncement of legal separation, acknowledgement of financial self-sufficiency and that neither shall pay spousal maintenance, joint parental responsibility with residence to the wife and contact to the husband, allocation of the family home in London, quantification of his liability to pay child maintenance and an acknowledgment that the husband and wife adopted a matrimonial regime of separate property.

The wife's petition, based upon the parties' habitual residence in this jurisdiction, was issued in the Principal Registry in March 2012, in ignorance of the husband's petition.  She sought all forms of financial provision and issued her Form A on the same date.

As Italy was first seised under Article 16 and England and Wales was second seised, a mandatory stay of the wife's petition and of her financial remedy application under Article 19 of Council Regulation (EC) No 2201/2003 Brussels II bis was granted.   Additionally, the husband issued section 8 Children Act 1989 proceedings.  In October 2012, the wife applied to the Child Support Agency, as it then was, and three weeks later, before there had been any substantive hearing in Italy, issued her Schedule 1 application for substantive orders.

In November 2012, a hearing took place in Milan where the court declared that, inter alia, there was jurisdiction for the Italian court to consider the petition for separation as both parents are Italian, that in respect of the applications relating to parental responsibility over the children, that the English court has jurisdiction, that the Italian court has jurisdiction to decide on the maintenance application but not to decide on the maintenance application relating to the children.

Difficulties subsequently arose between the parties as to the accuracy of the translation of words from the Italian court's judgment and the extent to which the judgment was an opinion or binding on the parties.

After detailed consideration of the legal framework and the parties competing arguments, Parker J held that while ordering a stay of the proceedings in this jurisdiction may cause hardship and injustice to the wife, it was, in her view, the only principled way in which the dispute can be determined and that English jurisdiction was not established.  Stay granted.


Summary by Richard Tambling barrister, 1 Garden Court

__________


Case No. FD12P04098
Neutral Citation Number: [2013] EWHC 2344 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Date: Monday, 24th June 2013

Before:

MRS. JUSTICE PARKER
__________

B E T W E E N :

EA Applicant

-  and  -

AP Respondent

Transcribed by BEVERLEY F. NUNNERY & CO
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__________

MR. P. MARSHALL QC (instructed by Withers) appeared on behalf of the Applicant.
MR. T. SCOTT QC and Mr Brent Molyneux (instructed by Gordon Dadds) appeared on behalf of the Respondent.
__________

J U D G M E N T
MRS. JUSTICE PARKER:

1. This case concerns proceedings in Italy and England, to which the Brussels regime applies.  The parties are married, Italian, but have lived all their married life in London.  The whole family is undoubtedly habitually resident here, whether an English or autonomous European Union test is applied.  The husband is a hedge fund manager.  His fund is of high worth, perhaps £30 million.  The parties have valuable London properties.  Their income is high.  The wife says that she can establish that the parties' expenditure on themselves and their children was well in excess of £300,000 per annum.  The husband applies to stay the wife's application for Schedule 1 provision for their two children, aged 9 and 4.  He contends that the only jurisdiction in respect of provision for the children is in Italy where his matrimonial proceedings first in time were issued.  The wife concedes that were the Italian court seised of child maintenance then there would be no jurisdiction here, but she says that it is not seised.  As with most if not all such jurisdictional contests, there is considerable jockeying for position.  Each perceives that the jurisdiction of his or her choice gives advantage.

2. The husband's petition for separation, a necessary precursor to divorce in Italy, was issued in Milan on 28th February 2012.  It is based upon the parties' Italian nationality.  There is no dispute that the husband was entitled to issue such a petition and it properly engages the Italian jurisdiction.  The husband sought the following orders/relief:

(a) pronouncement of legal separation;

(b) acknowledgement of financial self-sufficiency and that neither shall pay maintenance (i.e. spousal maintenance);

(c) joint parental responsibility with residence to the wife and contact to the husband;

(d) allocation of the family home, which I note is in London;

(e) quantification of the husband's liability to pay child maintenance, depending upon whether the family home was released or assigned to the wife;

(f) an order that the husband pay 50% of the school fees plus extras, as previously agreed; and

(g) an acknowledgment that the husband and wife adopted a matrimonial regime of separate property plus consequential directions, a matter likely to be of some importance in Italy, I imagine, since the matrimonial home is in the husband's sole name, although other properties are not.

3. The wife's petition, based upon the parties' habitual residence in this jurisdiction, was issued in the Principal Registry of the Family Division on 12th March 2012, apparently in ignorance of the husband's petition.  She sought all forms of financial provision, namely, capital provision, lump sum, transfer of property, pension, and so on, and maintenance for herself and the children and lodged her Form A on the same date.

4. Since Italy was first seised under Article 16 and England and Wales was second seised, a mandatory stay of the wife's petition and of her financial remedy application under Article 19 of Council Regulation (EC) No 2201/2003 Brussels II bis had to be granted. A consent order was made and has been continued at subsequent hearings.

5. The husband has issued s 8 Children Act proceedings. Jurisdiction for this certainly lies in the courts of England and Wales because this is where they are habitually resident.  A shared residence order of nine nights to the mother and five to the father during the school term and half of the school holidays was made on 25th October 2012.  This may or may not have a financial implication in respect of the CSA calculations.  I do not suggest that that is the motivation for the making of the order.

6. In the meantime, on 2nd October 2012, the wife applied for child support from the Child Support Agency, as it then was.  Just under three weeks later, before there had been any substantive hearing in Italy, she issued her Schedule 1 application on 21st October 2012 seeking:

(a) a periodical payments order, that is, child maintenance to include a "top-up" order plus a school fees order;

(b) a lump sum order;

(c) a secured periodical payments order;

(d) settlement of property for the benefit of the children; and

(e) transfer of property for the benefit of the children.

7. This application has considerable potential to overlap with the subject of the proceedings in Italy because the property to be settled for the benefit of the children, or transfer of property order, would also be the subject of the proceedings in Italy, both on the wife's application for herself, and on behalf of the children.   I say that not by way of adverse comment but to reflect the reality. 

8. On 2nd November 2012, the CSA determined that the husband was to pay £5 per week from 4th October 2012.

9. On 16th November 2012, a hearing took place before the president of the relevant court in Milan, sitting alone, Nadia Dell'Arciprete.  The father has produced a translation of the order, which reads in its relevant parts:

"It having been established: -

"that there is no doubt as to the jurisdiction of the Italian court to examine the filed petition for separation as both parents are Italian (Article 3, EC Regulation 2001/2003); … -

"that, conversely, for the applications relating to parental responsibility over the minors the English court has jurisdiction as the state in which the children are habitually resident (Article 8 of the aforementioned Regulation), and moreover, such jurisdiction is not disputed by the petitioner following the objection raised by the respondent; - … -

"that, therefore, this court has jurisdiction to decide on the maintenance application filed on behalf of the wife (which is supplementary to the proceedings concerning status), but not to decide on the maintenance application filed on behalf of the minor children, since such an application is ancillary not to the proceedings concerning status, but to the proceedings concerning parental responsibility, in respect of which the English courts have jurisdiction; -

"that, pursuant to Article 20 of EC Regulation 2001/2003, nor can interim measures be adopted relating to the minor children as none of the parties to the proceedings (spouses and children) reside in the state of Italy (which is the requirement of the aforementioned provision)."

10. The judgment concludes:

"On these grounds [the court] (1) authorises the spouses to live apart and to undertake to show one another mutual respect; (2) orders the husband to pay the wife a monthly maintenance allowance of €3,200, which is to be paid in advance by the 5th of each month (as from this month) and which is to be reassessed annually on the basis of the ISTAT cost of living indices; (3) does not issue any ruling on the custody of the minor children or the related maintenance payments, holding that this court does not have jurisdiction to do so."

11. The husband now says that the translation which he has provided is inaccurate in relation to para.3 of the order.  He says that the word "holding" has been mistranslated.  The original is "ritenendo di difetto di giurisdizione".  He says that the proper translation is:  "of the opinion that that it lacks jurisdiction", which is not the same as "holding".  The wife says that the judgment and the order must be read as a whole and it is quite clear that the judge was ruling on jurisdiction.  The husband has other points: he says that there was no jurisdiction in a single judge to make a ruling in respect of jurisdiction and that the matter could only be dealt with by a three-judge court.  I was told that there was to be another hearing on 23rd May 2013.  I am sure that I would have been told had anything substantive happened then.

12. On 19th December 2012, the wife applied for a variation of the CSA determination on the basis that the husband's lifestyle was incompatible with the £5 per week assessment.  The following day, on 20th December 2012, the husband applied to stay the wife's Schedule 1 proceedings.  Directions were given for the hearing, which eventually came before me, and the Schedule 1 proceedings are, in effect, suspended. 

13. The father says that the judge's view about jurisdiction over child maintenance given by the judge in November is misconceived and wrong.  He did not appeal the order.  He, and his Italian lawyer, who has produced an opinion for these proceedings, says that this is because there is no appeal against an opinion, as opposed to a ruling.  The mother's Italian lawyer strongly disagrees.  This obviously would be a matter of some dispute before the Italian courts.  However, on 27th December 2012, the husband petitioned the Supreme Court of Cassation, the Supreme Court, for a declaration that the Italian courts have jurisdiction in relation to child maintenance.  The mother's Italian lawyer has submitted a response to the husband's petition.  From this, it appears that the wife advanced the case as to jurisdiction which the judge adopted in November 2012 and supports it before the Court of Cassation. In the response her lawyer refers to other cases heard in Italy and it appears elsewhere, which it is said justify the judge's conclusion that the courts of the child's habitual residence are the courts which have sole jurisdiction in respect of child maintenance.

14. On 4th February 2013, the husband started to pay voluntarily £2,000 per month for the children's support.  By this time, incidentally, there were arrears of maintenance of £25 at the £5 per week rate.  On 11th February 2012, the CSA calculated that the husband should pay £400 per week for both children.  That is just under £21,000 a year.  This was later either clarified or amended to provide that the figure was £400 per week from 4th October 2012 and £285.71 per week from 7th February 2013, which comes out at just under £14,856 per annum.  The husband has appealed the CSA determination.  He does so on the same grounds upon which he seeks to stay these proceedings, namely, that the Italian court is seised of all issues in respect of child maintenance and until the Italian court determines otherwise then there is no jurisdiction here either in the court or within the agency to determine child maintenance.  The parties have agreed an adjournment of the tribunal hearing which is to consider the appeal.

15. In her Schedule 1 proceedings, the wife seeks an interim order of around £27,000 per month.  Her present income is between £6,000 and £7,000 per month. This includes the payment presently made to her under the Italian order, some income she receives from rent of the parties' properties, and the husband's voluntary payment.  She and the children remain in the former matrimonial home.  The issue before this court is whether, by reason of the Maintenance Regulation, Council Regulation (EC) No 4/2009, which came into force on 11th June 2011, the English courts are precluded from proceeding with the wife's Schedule 1 application because of the Italian proceedings, specifically whether the "Lis pendens" provisions in Article 12 are engaged.

The Framework
16. Recital (11) of Council Regulation (EC) No 2201/2003 (Brussels II bis) provides that    'maintenance obligations are excluded from the scope of the Maintenance Regulation as these are already covered by Council Regulation No 44/2001. The courts having jurisdiction under this Regulation will generally have jurisdiction to rule on maintenance obligations by application of Article 5(2) ( Brussels).  It provides as follows:

"In matters relating to maintenance obligations, 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 court 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."

17. Council Regulation (EC) No 4/2009, the 'Maintenance Regulation', by Article 3, provides:

"In matters relating to maintenance obligations in Member States, jurisdiction should 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."

18. Article 8 of Council Regulation (EC) No 2201/2003 (Brussels II bis) provides:

"The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised."

19. It is common ground, of course, that the fact that the children are habitually resident in England gives the court jurisdiction to deal with issues in respect of residence, contact and so on.  There is also no doubt that there would be a jurisdiction to deal with Schedule 1 proceedings in the absence of any other proceedings in Italy.

20. Article 12 of the Maintenance Regulation, which is equivalent to Article 19 of Brussels II bis, provides:

"(1) Where proceedings involving the same course 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."

Article 13 provides that:

"(1) Where related actions are pending in the court 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."

21. In the context of the wife's case that the jurisdiction depends on the habitual residence of the children, thus her freestanding application under CA 1989, I note as Mr Marshall asks me to do, that she assumed that there was jurisdiction to apply for provision for the children ancillary to her English divorce proceedings, just as did the husband in his Italian separation proceedings

22. Each party has sought the opinion of Italian lawyers.  The wife says that the Italian court is not seised.  She is adamant that the order means what it says; this is a valid and immediately effective order.  The husband says that until the Court of Cassation determines the application it is seised and that the court must grant a mandatory stay, as must the Child Support Agency.  I was asked to grant an adjournment so that the lawyers could clarify the position.  This might very well have required oral evidence.  I declined to do so.  I accepted Mr. Scott's argument that it must be for the Italian court to rule on its own orders since this matter is to be determined at some point by the Court of Cassation and that I must form my own view from the English court's perspective.

23. The husband says:

(1) the single judge lacked capacity to decide any issues of jurisdiction which, under Articles 187 and 279 of the Italian Civil Procedure Code, can only be decided by three judges in the Tribunale or by the Supreme Court of Cassation upon a petition under Article 41; and/or

(2) in any event, the single judge simply made no order (i.e. declined to make child maintenance orders) on the basis that she was of the opinion that the Italian court lacked jurisdiction;

(3) in addition, her reasoning is plainly wrong because she misinterprets Articles 3(c) and 3(d) of the Council Regulation to provide that  the jurisdiction to make child maintenance orders could only be founded on either Article 3(c) or Article 3(d) but not both and, on the basis that child maintenance could only ever fall within Article 3(d),  namely as ancillary to proceedings concerning parental responsibility, and so which by reference to Article 8 of Brussels II bis, fell only to be dealt with in England;

(4) until the Supreme Court of Cassation has ruled on this issue the issue of jurisdiction has not yet been "established" (i.e. one way or the other) within the terms of Article 12, and as England is second seised, it must stay its proceedings both before the CSA and in respect of the Schedule 1 proceedings to await the outcome.

24. Mr Scott on behalf of the wife reminds me that maintenance is within the scope of the Brussels Convention, brought into English law by the Civil Jurisdiction and Judgments Act 1982.  The Convention was superseded by the Brussels I Regulation, which came into force in 2002.  Maintenance was taken out of Brussels I with effect from June 2011 when the Maintenance Regulation came into force. He submits that even before the Maintenance Regulation it was recognised in EU law that the maintenance payer and the payee are generally not on a level playing field.  The maintenance creditor (i.e. the applicant) was treated by the Brussels Convention as the weaker party whose position may need particular consideration (see Farrell v Long [1998] 1 FLR 559).   He submits that the protective attitude to maintenance creditors is now reflected in paras.9 and 15 of the preamble to the Maintenance Regulation.  Paragraph 9 provides that:

"A maintenance creditor should be able to obtain easily, in a Member State, a decision which will be automatically enforceable in another Member State without further formalities."

25. Mr Scott submits that this has two aspects:  a maintenance creditor should be able to obtain a decision easily and that decision should be automatically enforceable in other member states.  The underlying principle is that a person entitled to claim maintenance should have a forum in which to do so; this is so obvious that it hardly needs to be spelt out.

26. Mr Scott argues that the general statement of intent in para.9 of the preamble is carried over into the jurisdictional provisions of the Regulation at Articles 3 to 7, which, between them, give a wide range of jurisdictional bases for applications, including habitual residence. It is specifically provided that a choice of court may be agreed between the parties.  He particularly draws attention to Article 7, headed "Forum necessitatis", which provides that, where no court of a member state has jurisdiction under Articles 3, 4, 5 and 6, the courts of a member state may, on an exceptional basis, hear the case if proceedings cannot be reasonably brought or conducted or would be impossible in a third state with which the dispute is closely connected.  But I agree with Mr. Scott that this is not directly relevant in this case because either there is jurisdiction in Italy or in England or perhaps both, in which case the only question is which court is first seised.

27. Mr. Scott says, further, that commercial disputes are different from child maintenance disputes.  He accepts that European Court of Justice decisions make it clear that these Articles are always to be interpreted so as to give effect to the overriding principles of the Convention/Regulation, the avoidance of concurrent proceedings which could give rise to irreconcilable decisions.  He draws my attention in particular to Overseas Union Insurance v New Hampshire Insurance Company [1991] ECR 1-3317 and Erich Gasser GmbH v MISAT SrL [2003] ECR 1-14693.  He submits, however, that in maintenance disputes the courts are concerned with a continuing state of affairs, a developing need, rather than determining what has happened in the past.  He says that the goal of avoiding conflicting decisions therefore has to be viewed in a different context.  He points to the tailpiece of Article 24 of the Maintenance Regulation, which provides that:

"A decision which has the effect of modifying an earlier decision on maintenance on the basis of changed circumstances shall not be considered an irreconcilable decision (for the purpose of recognition)."

Therefore, an order which has been varied on the basis of changing circumstances is expressly said not to be irreconcilable with the earlier order. 

28. Mr. Scott accepts that Article 12 must always be applied in support of the underlying goal of avoiding the risk of irreconcilable decisions but submits that the way that such goal is to be achieved is unlikely to be the same in a maintenance case, especially a child maintenance case, as in a commercial case.  He submits that the Lis Pendens rule is not to be applied mechanically.  It must always be applied so as to give effect to the goal of avoiding irreconcilable decisions.  Mr. Scott points out that the effect of the Italian court's ruling in the husband's appeal to the Court of Cassation is that the wife has no access to the Italian court until the Court of Cassation rules and, unlike the case in this jurisdiction, the court in Italy cannot make an interim determination of maintenance until the jurisdictional issues are resolved.

29. Both parties have referred me to Moore v Moore [2007] EWCA Civ 361.  That case concerned the interplay between the Spanish and the English court regimes and the Brussels II regime in a different context.  The question was, had there been, or could there be, a maintenance determination at all.  That decision was under appeal.  Lord Justice Thorpe said at para.103:

"The effect of an appeal from a decision by the court first seised that it has no jurisdiction does not appear to be settled by authority: c.f. Dicey, Morris & Collins, Conflict of Laws, 14th ed. 2006, paras. 12-047, 12-062; Briggs and Rees, Civil Jurisdiction and Judgments, 4th ed. 2005, para 2.205.  It is true that a judgment for the purposes of Brussels I is final even if an appeal is pending: e.g. Articles 37 and 46.  But the object of Article 27 is to prevent irreconcilable judgments, and as a matter of policy it would be very odd if proceedings in the court second seised could continue even if on appeal the jurisdiction of the court first seised is established.  Consequently, we consider (contrary to the view of the judge) that Article 27 applies until the proceedings in the court first seised are finally determined in relation to its jurisdiction.  That would mean that the expression in Article 27.1 'until such time as the jurisdiction of the court first seised is established' should be interpreted to include the case where the court first seised has declared that it has no jurisdiction, but an appeal is pending against that decision, and that it would be unsatisfactory for the matter to be dealt with through a discretionary stay in the court seised second."

30. The husband says that this is binding upon me.  The wife says that it is not.  In any event, the husband has not appealed.  He has issued a freestanding application to the Supreme Court which is not an appeal.

31. Mr. Scott draws attention to the problem of delay, which I accept is highly significant in this case.  He draws attention to the problems that appeals cause in many jurisdictions. 

32. Lord Justice Thorpe emphasised that, in Article 37 of Brussels I, the court has power to order a discretionary stay.  The equivalent provision in relation to a non-protocol state in the Maintenance Regulation is Article 25, which provides that:

'Staying of recognition proceedings
'A court of a Member State in which recognition is sought of a decision given in a Member State not bound by the 2007 Hague Protocol shall stay the proceedings if the enforceability of the decision is suspended in the Member State of origin by reason of an appeal.

33. I accept that under the provision the stay is mandatory ("shall" not "may")   and Mr. Scott says that where the judgment is being given in a protocol state, which includes Italy, Article 25 does not apply and there is no equivalent power.  He says that on the contrary, Article 17.1 of the Maintenance Regulation provides:

"A decision given in a Member State bound by the 2007 Hague Protocol shall be recognised in another Member State without any special procedure being required and without any possibility of opposing its recognition [the last eight italicised words not being contained in Article 23.1, headed "Recognition" which relates to non Hague Protocol states, which is otherwise identical]."

He submits that the procedure for recognition of a judgment given in a protocol state contained in Article 17 to 22 of the Maintenance Regulation is a fully streamlined procedure and deliberately omits the grounds for non-recognition which appear both in Brussels I Article 34 and in the non-protocol state code, Article 24: although I note that no such ground would seem to be relevant here.

34. In any event, he submits that Article 25 of the Maintenance Regulation does not apply.  Proceedings for recognition of an order made in a non-protocol state must be stayed if an appeal has been lodged in that state, and if the order has been made in a protocol state no proceedings are required to obtain recognition.  Recognition cannot be stayed and the question of a stay does not even arise.  He submits that the streamlined procedure for recognition and enforcement is a matter of policy which reflects the overall goal of the Maintenance Regulation to favour the maintenance creditor.  The only member states that have not signed the Hague Protocol are the UK and Denmark.  He says that the great majority of cases will therefore fall under the streamlined procedure and this marks a significant development from Brussels II.  He says that the fact that the UK is itself a non-protocol state is irrelevant.  The distinction between the two recognition codes is predicated entirely upon whether the judgment has been given in a protocol state or a non-protocol state, not on whether the recognition state has subscribed to the protocol.  The position in the present case is therefore clear.  A judgment has been given in a protocol state declining jurisdiction.  That must be recognised.  There is no possibility of opposing its recognition and the fact that a collateral procedure has been started with a view to impugning it is irrelevant.  He stresses that there has been no appeal.  He says, therefore, that I am bound to recognise the Italian court's decision, which he says must be regarded as a decision rather than simply the expression of an opinion that the Italian court has no jurisdiction.  In this respect also, the court must pay attention to the fact that the policy of the Regulation is to favour the maintenance creditor.

35. Mr. Scott suggests that a way around the difficulty which may be created if the Italian Court of Cassation rules that the Italian court does have jurisdiction to deal with child maintenance is that the English court under its Schedule 1 jurisdiction should be invited to make an order which will lapse if and when the Italian court accepts jurisdiction.  This, of course, could relate only to the question of interim maintenance, bearing in mind that a significant aspect of the wife's Schedule 1 application is capital provision, albeit provision for the children, which would of necessity need to be in trust.  He says that in that event there would be no subsisting order in Italy with which it would conflict.  Meanwhile, the wife will not be deprived of a forum.  He submits that this is analogous with a maintenance creditor who moves jurisdictions, who may invoke the child maintenance laws of each successive country.

36. He says that the only circumstances in which conflict might arise would be if the Supreme Court holds that jurisdiction lies in Italy, and the Italian court then makes an order which operates  respectively to the order of 16th November 2012 and that order were to provide less than were provided by the hypothetical English court order.  He submits, however, that the court in Milan would not make an order which conflicted with an order of the English court.  He also suggests that the Milan court would be grateful to know, or might be grateful to know, what order the English court thought acceptable.  He finally says that since Italy has acceded to the Hague Protocol, that maintenance obligations should be governed by the law of the state of the habitual residence of the creditor and therefore it would apply English law on maintenance for the children.

37. Discussion:

(1) I accept that the husband may well be right in asserting that the Italian judge's ruling was just plain wrong and I also accept that the effect of this is to deprive the wife of any remedy for maintenance at the moment.  She is entirely dependent upon the husband's voluntary payment.  I accept that this is in excess of the present CSA award.  I accept also that it could be withdrawn at any time.  I note that the payment was not offered or made until proceedings had been in being for the best part of a year and was not made until the wife had applied to vary the CSA payment on lifestyle grounds.  I accept that the husband has appealed the CSA award and I accept that the wife is placed in a very difficult position.

(2) I accept that the Regulation provides a protective regime for maintenance creditors.  I do not accept, however, that this must be assumed to override jurisdictional requirements. In my view it does not.

(3) There is still no news from the Court of Cassation.  I accept that the wife could be without a remedy for the foreseeable future.  As Mr Scott has stressed, this is also unfortunately the case where there is an appeal properly so called.  I am prepared to accept for the purposes of this judgment that the Italian judge's ruling has the effect of a determination on jurisdiction in respect of child maintenance, because she cannot progress her application, it seems, whilst it stands.  I say that bearing in mind Mr. Marshall's submission as to the proper interpretation of the Italian word "ritenendo", but the order has to be read in the context of the judgment and the totality of the judge's formulation.  If this were simply an indication, an opinion without effect, I doubt that the husband would have brought proceedings in the Court of Cassation.

(4) I accept that the husband's litigation strategy may be tactical.  However, I note that he has always accepted the jurisdiction of the Italian court in respect of provision for the children, and that the wife has not (see the date of her application).  The application to the Court of Cassation is contested.  Whether that adds to the delay or not, I do not know.

(5) I accept that the order is not under appeal.  I do not know whether the husband is right or the wife is right in saying that there is an appeal remedy. But I have to accept that the order is subject to challenge.

(6) I accept the force of Mr. Scott's argument that, prima facie, this is a decision (if indeed it is a decision rather than an opinion) which is entitled to recognition, but that approach would fundamentally undermine Article 12 of the Maintenance Regulation, and the fundamental aim of preventing irreconcilable judgments. 

(7) Although the passage which I have read from the judgment of Thorpe LJ in Moore was not strictly necessary to the decision, it contains an extremely persuasive formulation.  I pay particular regard to Thorpe LJ's view that it would be odd if proceedings in the court second seised could continue even if on appeal the jurisdiction of the court first seised is established, and that Article 27.1 should be interpreted to include the case where the court first seised has declared that it has no jurisdiction but appeal is pending.  In my view, it makes no difference as to whether the stay is mandatory or discretionary.  Precisely the same principle applies here.  I accept that this is not an appeal as such, but it is obvious to me that the jurisdiction of the Italian court is not decided.

(8) I reject entirely the proposition that the English proceedings should not be stayed because the Italian court should be guided by English views on quantum.  That is exactly what the regime is designed to avoid, and is an example of potential jurisdictional conflict.

(9) I consider that Mr. Scott's proposed solution, which could only relate to interim maintenance, as having inherent difficulties, which, as he identifies, could not necessarily be overcome.  There are all kinds of ways in which the Italian and the English court could come into conflict in respect of their rulings. Also, in my view there is a danger that reliance may be placed on the existence of English proceedings or an English order to support the wife's case that Italy is not the appropriate forum for child support to be determined, and/or that jurisdiction should be ceded to England on a discretionary basis.   I do not consider, as I have said, that the ability of the maintenance creditor to select a jurisdiction in relation to enforcement, or the protection given to the maintenance creditor, is relevant to the question of jurisdiction.

Decision
38.  I therefore order a stay.  The jurisdiction is not established.  I recognise that this may cause hardship and injustice to the wife, but it is, in my view, the only principled way in which the dispute can be determined.
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