Monaco or Bust? Litigating about where to litigate!

Monaco or Bust?  Litigating about where to litigate!

 

In this article I consider the recent decision of the High Court in Re C (A Child) [2021] EWFC 32 in which Sir James Munby sitting as a High Court Judge, gave judgment on a preliminary issue as to whether the English court had jurisdiction to hear a mother’s maintenance application brought pursuant to Schedule 1 of the Children Act 1989 despite the fact that the Father had lodged earlier proceedings in Monaco.

 

The Facts

The brief facts were that the court was concerned with C, a 6-year-old girl.  The parents had met in 2013 and had had a brief relationship.   The mother, was born in Russia, was a resident of Finland and had lived in England for extended periods prior to 2014.    The father, was born in Sweden and lived in Monaco. C was born in France, and lived there with mother until moving to in England in the summer of 2019.   In November 2019 mother made an application under Schedule I of the Children Act 1989.   Earlier in the same month Father had applied to the courts in Monaco for orders in relation to maintenance and paternity which was established following DNA testing.     In March 2021, the court in Monaco held that, since it had jurisdiction in relation to the paternity issue, it also had jurisdiction in relation to child maintenance.   M disputed this decision of the Monaco court and the matter came before the High Court.    Given that M’s application was issued in November 2019, jurisdiction continued to be governed, despite the United Kingdom’s subsequent departure from the European Union, by the Maintenance Regulation, Council Regulation (EC) No 4/2009 of 18 December 2008 (the ‘Regulation’).

 

The Issues

  • The main plank of Father’s case was that as his case in Monaco was first in time the English court should stay the proceedings here pursuant to Article 12 of the Regulation despite the fact that Monaco is not a Member State of the EU and the Regulation does not apply there. Father’s argument was that the regulations could apply with “reflexive effect” as he said had his proceedings been issued in a Member State, the English court would have been bound to decline jurisdiction.
  • Father also submitted that Mother and C were still habitually resident in France at the point when she made her application in the English court.
  • M argued that the fundamental principles underpinning the Regulation (in particular, as developed by the Supreme Court in Villiers v Villiers [2020] UKSC 30) were fatal to F’s case; namely, that these fundamental principles prevented precisely what F was inviting the court to do.

 

Held

The court considered the Regulation and set out nine propositions derived from various EU jurisprudence and Villiers.    The court concluded that the Regulation places emphasis on the protection afforded to the maintenance creditor in such disputes, (usually being the weaker party in the context of the dispute) and also on the unfettered right of a maintenance creditor to choose the jurisdiction in which to bring his or her claim.

 

The Judge considered father’s approach to be in stark conflict with the fundamental principles applicable to the Regulation, as per the propositions he set out and also decided that, even if Monaco had been a Member State, Father would not have been able to found jurisdiction in Monaco under Art 3.  He went on to say F’s reflexive effect argument didn’t work as:

(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) the doctrine of forum non conveniens has no place in the context of maintenance cases under the Regulation.

 

In relation to father’s argument about habitual residence the court referred to Art 3(b) of the Regulation which 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 court decided that the ‘maintenance creditor’ in this case was the mother and not the child as she is the recipient. Having decided this, he looked at the approach to testing for habitual residence; for an adult as being “the centre of interests” as compared with for a child being “some degree of integration by the child in a social and family environment” for a child [para 63].  After hearing evidence from the mother in which her honesty and reliability were questioned he felt she M was still able to demonstrate that she and C had been habitually resident in England by November 2019.   Mother had clearly generated a substantial volume of evidence, including tenancy agreements, school applications, GP registrations etc., by the time of her application and the court found M had established her centre of interest in London with the necessary degree of permanence and stability.    The judge was therefore satisfied that the English Court had jurisdiction to hear the substantive Schedule 1 claim.   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 habitual residence was established irrespective of whether Mother or C is the ‘maintenance creditor’ pursuant to the Regulation.

 

Footnote

At the end of the judgement his Lordship raises his concern about the costs that had been incurred “in preliminary skirmishing about jurisdiction”.   By that stage the costs in this country (he had no figures in relation to either Monaco or France) were for Mother £300,308 and for father £591,464.   Despite these staggering fees the Judge draws to an end by commenting that the jurisdictional dispute was particularly arid as it would seem that if Mother was indeed habitually resident in this country the court in Monaco would apply English law.    So what was the point?   The judge finally asks rhetorically “Can nothing be done to prevent or at least ameliorate the folly of these huge and expensive cases that litigate about where to litigate?”