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Re C (A Child) [2021] EWFC 32

A judgment determining, as a preliminary issue, whether the English court had jurisdiction to hear M’s maintenance application brought pursuant to Schedule 1 of the Children Act 1989 following earlier proceedings issued by F in Monaco.

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A decision of Sir James Munby, sitting as a Judge of the High Court, considering whether the English Court had jurisdiction to hear M's application, applying the relevant provisions of the Maintenance Regulation (EC) No 4/2009.  

Background

M, the mother of the child ('C'), was born in Russia, a resident of Finland and had lived in England for extended periods prior to 2014. F, C's father, was born in Sweden and resident in Monaco. C was born in France, in August 2014, and lives with M. M and C lived in France from 2014 until August 2019, when they moved to England.

M's Schedule 1 application was issued on 26 November 2019 and F had issued an earlier application in the Monegasque courts, on 21 November 2019. F's application was principally in respect of maintenance and paternity. DNA testing took place within these foreign proceedings establishing in September 2020 that C was F's child and so dispensing with the issue of paternity. The court in Monaco, on 18 March 2021, gave judgment holding that it had jurisdiction in matters relating to C's parentage and child maintenance, giving directions to resolve the dispute regarding where M was domiciled so to determine the law applicable to the claim.

The question for the English court was whether it had jurisdiction to hear M's Schedule 1 application, which was issued later in time. Despite the United Kingdom's subsequent departure from the EU, the issue of jurisdiction was governed by the Maintenance Regulation (EC) No 4/2009 (the 'Regulation'). The material provisions being Recital (15) and Articles 2, 3, 5 12 and 13.

The Issue

F sought to stay the English proceedings. Monaco is not a member of the EU, but F contended that the Regulation has reflexive effect and so should be applied as if Monaco were a Member State, providing the terms of the Regulation do not prohibit such treatment. The argument being that, had F's proceedings been issued in a Member State, the English court would have been bound to decline jurisdiction.

M argued that the fundamental principles underpinning the Regulation (in particular, as developed by the Supreme Court in Villiers v Villers (Sec State for Justice intervening) [2020] UKSC 30) were fatal to F's case; namely, that these fundamental principles prevented precisely what F was inviting the court to do.

The meaning and effect of the Regulation

The court rejected F's approach to the Regulation, agreeing with the position advanced by M. In rejecting the underlying premise of F's approach, the court set out nine propositions derived from various EU jurisprudence and Villiers' treatment of the Regulation [para 19]; these propositions placed particular emphasis on the protection afforded to the maintenance creditor in such disputes, being the weaker party in the context of the dispute, and the unfettered right of a maintenance creditor to choose the jurisdiction in which to bring his or her claim.

The judgment proceeds to a more detailed analysis of Villiers and two further decisions of the CJEU before summarising why F's argument could not succeed. The Judge considered the approach to be in stark conflict with the fundamental principles applicable to the Regulation, as per the propositions summarised above, and as misinterpreting the Regulation itself; the Regulation does not entitle a maintenance debtor (in this case, F) to pick a jurisdiction seeking declaratory relief regarding the extent of any maintenance obligation he may have [para 47].

Reflexive effect

Notwithstanding the view taken on the premise of F's approach, the court continued to deal briefly with F's reflexive effect argument. This was rejected by the court in reliance upon the following: (i) Recital 15 of the Regulation expressly forbids 'any referral to national law' on the question of jurisdiction and reflexive effect is a principle of national law, rather than EU law, and (ii) one of the nine propositions of the Regulation identified by the Judge and summarised at paragraph 19 of the judgment illustrates that the doctrine of forum non conveniens has no place in the context of maintenance cases under the Regulation [para 57].

As a consequence, the Judge concluded that, despite the ongoing proceedings in Monaco, the English court did have jurisdiction to hear M's claim for maintenance subject to her being able to found such jurisdiction on the grounds of habitual residence. Conversely, the Judge concluded that the court had no jurisdiction to stay the proceedings in the manner sought by F [para 59].

Habitual residence

Art 3(b) of the Regulation provides that "in matters relating to maintenance obligations in Members States jurisdiction shall lie with the court for the place where the creditor is habitually resident."

The question as to whether the 'maintenance creditor' is the recipient parent or the child had not previously been resolved by the English courts, with prior jurisprudence adopting conflicting approaches, without any analysis of the issue or consideration of CJEU case law (see [para 60]). The Judge concluded that the recipient parent was the maintenance creditor in the context of the Regulation, which was an approach advocated for by both M and F. That the maintenance creditor is the parent informs the approach to testing for habitual residence; for an adult the test is "the centre of interests" as compared with "some degree of integration by the child in a social and family environment" for a child [para 63]. The Judge then summarised the principles and jurisprudence applicable to determining the question of habitual residence [paras 64-71].

The Judge then proceeded to consider the evidence to determine the question of M's habitual residence on 26 November 2019, the date her application was issued. The Judge accepted that F had mounted a significantly successful attack on M's reliability and honesty as a witness, identifying a number of exaggerations and falsehoods that he accepted had been demonstrated against her [para 85]. However, the Judge was not satisfied that this affected, in any meaningful way, the fundamentals of M's case in respect of habitual residence; M's return to England was carefully planned, with arrangements having been made for accommodation and C's schooling, and M was returning to a country with which she had a significant connection prior to 2014. M and C were registered with a GP and Dentist, and by September 2019 C was attending ballet and music lessons. Consequently, the Judge was satisfied that, by 26 November 2019, M had established her centre of interest in London with the necessary degree of permanence and stability. The Judge was also satisfied that C had acquired a sufficient degree of integration in a social and family environment by the same date, so finding habitual residence established irrespective of whether M or C is the 'maintenance creditor' pursuant to the Regulation.

Case summary by Oliver Riley, Barrister, St John's Chambers

For full case summary, please see BAILII