The ‘folly’ of litigating ‘about where to litigate’: C (A Child) [2021] EWFC 32

Facts

This case concerned a preliminary jurisdictional argument in relation to a substantive application for financial provision under Schedule 1 to the Children Act 1989. Since the application pre-dated the UK’s departure from the EU, this case was a ‘transitional case’, whereby the Maintenance Regulation (‘MR’) still applied.

The parties were the father (‘F’) and mother (‘M’) of a 6-year-old girl (‘C’). They had met in 2013 and had had a brief relationship. They had international backgrounds: M was a Finnish citizen born in Russia, who was currently living in the UK; F was born in Sweden and resided in Monaco; C had been born in France. M had moved from France to London at some point in the summer of 2019. There were apparently competing applications at play in different jurisdictions. F had made an application in Monaco on 24 November 2019 asking for blood testing of C because he contested paternity. F also asked for the Monegasque court to make an interim order for him to pay M €2,225 per month by way of child maintenance. In September 2020 it was established that C was indeed F’s daughter.

After F’s application in Monaco, on 26 November 2019, M applied in England under Schedule 1 for financial provision from F. 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 Sir James Munby (‘the judge’), sitting as a judge of the High Court.

Issues

F’s primary submission was that he had founded jurisdiction in Monaco and that the English court should issue a stay and decline jurisdiction, pursuant to Article 12 of the MR. The sticking point on this submission was that Monaco is not a Member State of the EU and the MR does not apply there. F’s argument was that the MR could apply to achieve his preferred outcome on jurisdiction via the doctrine of “reflexive effect”, whereby the decision of a court of a third country could apply as though it had been made in a Member State.

F’s second, alternative, submission was that M and/or C were still habitually resident in France at the point when she made her application in the English court in November 2019. F argued that M was a ‘forum shopper’ who was dishonestly representing her habitual residence and could not bring her claim in England.

For her part, M argued that “reflexive effect”, being a doctrine of domestic law, was precluded by Recital 15 to the MR. Consequently, the jurisdiction of England and Wales was seised due to M having been habitually resident there at the time of her application in November 2019.

Held

The judge set out the relevant law on the MR. In particular the judge emphasised that the provisions of the MR (particularly Art 3) were intended to give the creditor (assumed to be the economically weaker party) as much choice as possible as to which jurisdiction to choose to issue their claim in. Conversely the judge held that the MR was not intended to be used by a judgment debtor in order to pick a jurisdiction by commencing proceedings to establish their maintenance obligations.

The judge held that F’s submissions ran in stark opposition to the intentions of the framers of the MR: he, as judgment debtor, was trying to seise the Monegasque jurisdiction and deprive M of her choice. The judge decided that, even if Monaco had been a Member State, F would not have been able to found jurisdiction in Monaco under Art 3.

Furthermore, the judge held that the arguments by F in favour of “reflexive effect” were of no assistance to F, since domestic law doctrines such as this were expressly precluded by Recital 15 of the MR. Accordingly, the judge could not treat Monaco as though it were a Member State for the purposes of applying the MR, and there was no reason for the English court to issue a stay or decline jurisdiction.

Having dispensed with F’s primary submission, the judge moved on to assess whether M had been habitually resident in England at the time when she made her application there in November 2019. This would be necessary in order for the English court to have jurisdiction pursuant to the MR. The judge first dealt with “a nice as yet unresolved, question” concerning which of M or C had to be habitually resident in England for the purposes of the MR. The judge resolved that it was likely that M was probably the true “maintenance creditor” but continued his analysis in the alternative scenario as well.

Following the oral evidence, the judge was satisfied that F’s counsel had made “a significantly successful attack on M’s credibility, and even her honesty, as a witness.” Notwithstanding this, M was still able to demonstrate that she and C had been habitually resident in England by November 2019. Whether or not it had been forensically motivated, M had clearly generated a substantial paper trail of evidence, including tenancy agreements, school applications, GP registrations etc., by the time of her application. The judge was therefore satisfied that the English Court had jurisdiction to hear the substantive Sch 1 claim.

The judge concluded his judgment with a parting plea: “Can nothing be done to prevent or at least ameliorate the folly of these huge and expensive cases that litigate about where to litigate?”