M v V

Although this case raises a point of law (does the court have jurisdiction to entertain the mother’s application, and if so, should it make a substantive order in favour of the child involved?) and this judgment will be placed on the website bailii.org. uk, reporting restrictions apply and the judgment is being written anonymously. Nothing, therefore, must be published which in any way identifies the child concerned in the proceedings.

The mother of I, a female child born on 2 December 2004 (and thus now 5) applies for financial provision for I under section 15 of and Schedule 1 to the Children Act 1989 (the Act). I’s father opposes the application on two bases. Firstly, he submits that the court does not have jurisdiction to entertain the application. Secondly, he submits that if he is wrong about that, the court should not make a substantive order.

The mother is Algerian, but currently living in London. I’s father is French, and also lives in London. He is a very rich man, and has declined to give disclosure of his financial position on the grounds that, assuming the court has jurisdiction and exercises it to make an order, he can meet any order which the court sees fit to make for I.

Also before the court, and due to be heard in July 2010, is the mother’s application to relocate with I to Paris. This application, I am told, will not be opposed by the father, with the consequence (one hopes) that the July hearing will be unnecessary – at least to resolve that issue, for which, as is common ground, jurisdiction plainly exists.

On 20 April 2007, when I was 2, her parents, who were not married to each other (and have not since married), entered into an agreement in French of which I have both the original text and a translation. This agreement records that I is a French citizen; that the father has acknowledged paternity and that, since July 2001, his permanent home has been established in London, whereas the mother’s home has been established in France. The agreement also records that the parties “are now petitioning the Family Affairs Judge of the Paris Regional Court to give official approval to their agreement covering both the financial aspect of (I’s) maintenance and education as well as the matter of the transfer of her place of residence to England.”

The agreement goes on to record that both parents “have benefited from the assistance of a lawyer in drawing up and printing (l’elaboration et la redaction) the agreement”.

The agreement itself provides for joint parental authority, and for the parties to “share an apartment” in London. An agreement was recorded about how I would spend her holidays and the other parent’s written agreement was to be required if it was necessary for I to travel anywhere outside England and France. The father was to pay “the rental, upkeep and charges” of the apartment occupied by the family, and he was in due course to pay I’s school fees and medical expenses. His contribution to I’s “maintenance and education” was set at £3,000 per month, payable in London and index-linked (dependent upon the family’s place of residence). He was also to pay all I’s and the mother’s travel expenses between Paris and London. The parents agreed that “the aforementioned financial provisions” constituted “a full and all-encompassing financial agreement” covering I’s needs in England. The agreement thus went on to record: -

Finally, the parents agreed that should difficulties arise between them, they would “seek mediation in the Paris family court before taking any further legal action”.

That agreement was incorporated into an order of the Tribunal de Grande Instance de Paris Affaires Familiales by means of a judgment which is said to have been given on 24 September 2007, albeit that the case was also said to have been considered by the court on 8 October 2007. Although this is puzzling, I do not think that anything turns on the discrepancy. There was a joint application by the parents, which was dated 4 June 2007 and which “requested official recognition of an agreement settling new living arrangements for their daughter because her father is resident in London”.

The court’s judgment recites the essential terms of the agreement, and records that “there are grounds for granting official recognition” to it. As the judge records, the agreement “appears to meet the child’s needs”. The judge (Annie Bergougnous) goes on to make what are described as a series of “orders” reflecting the terms of the agreement. These include the payments of £3,000 per month. The court also “takes formal note” of the fact that the mother “agrees not to take legal action in England for the purpose of seeking a contribution towards I’s maintenance and education”; and that the parties had agreed “to seek mediation in the family court in the event of difficulty”.

The judgment is signed by the judge and her registrar. As will be apparent, there are differences of language between the agreement and the judgment, but, in my judgment, nothing turns on them.

In the event, the parties did not share an apartment. The father provided and paid for an apartment for the mother and I, whilst he lived separately - albeit in close proximity. The result was that for a lengthy period he paid sums substantially in excess of those agreed and ordered. Indeed, in her form C10A, the mother states that his total monthly contribution to the support of I and herself amounted to some £15,583 (nearly £187,000 per annum).

As I have indicated, the mother now proposes to return to France with I. In her Form C100 she states that she moved to England following the agreement with I’s father, but that she has “not found it possible to integrate into a new environment in London”. In a statement dated 22 December 2009, she says she has been “very unhappy” in London. Her case under the Act is that the father has ceased to make the additional payments summarised in paragraph 12 above, and that her application to the English court was designed, essentially, to clarify the full extent of the father’s obligations to I prior to her relocation to Paris.

The mother produced, through counsel, a summary of what she was seeking, which included rental on accommodation (presumably in Paris) at €5,000 per month, the cost of a nanny and full-time housekeeper, all education, holiday and removal costs, the discharge of the mother’s current tax liabilities in France and maintenance in the sum of €7,000 per month. She also seeks the payment of her costs which amount, I was told, to some £138,000. The sums sought, it was submitted, simply reflected what the father had been paying, but had ceased to pay.

The document produced to me, however, has not always been the mother’s position. Thus, her counsel told District Judge Bassett-Cross on 25 January 2010 that the mother was seeking “a capital sum, whether that buys a property in England, if she cannot relocate, or a property in Paris, where she will live with I”: see paragraph 94 of the transcript. In paragraph 96 counsel went on to discuss the terms on which the purchase would be made.

The father in his acknowledgement dated 25 November 2009, challenged the jurisdiction of the English court to hear the Schedule 1 application.

On 25 January 2010, District Judge Bassett-Cross sitting in the Principal Registry of the Family Division (PRFD) recorded that the father had agreed to pay (on a wholly without prejudice basis) an ex gratia contribution of £24,000 towards the mother’s costs, £3,000 per month pursuant to the order of the French court, the cost of the current nanny/help, school fees and expenses and medical costs for I, the outgoings on the flat in which the mother was living and £3,500 per month “by way of an A v A type contribution towards the mother’s costs”. On that basis the father was ordered to file and serve his form C10A by 4pm on 8 February 2010. The hearing before me was then set up, and directions were given for the issues under Part II of the Act to be dealt with.

The father did not serve his form C10A as ordered, and a further order was made on 1 March 2010 that he do so by 4pm on 30 March. On 4 March, he filed a Form C2 taking issue with the court’s jurisdiction and also taking what is commonly known as “the millionaire’s defence” namely that he could meet any order which the court might see fit to make. There matters rested.

For the father, Mr. Timothy Scott QC was at pains to point out that his client was a devoted father, who had treated his daughter and her mother with generosity. He asked me to bear in mind the following factors when approaching the mother’s application: -

I duly bear those matters in mind, although (apart, possibly from item (a)) they seem to me to go to the exercise of a jurisdiction, not to whether or not that jurisdiction exists. Mr. Scott described the mother’s determination to press ahead with her application as “plainly opportunistic”. She hoped, he said, to take advantage of what she no doubt perceived to be a more generous approach by this court even though she had agreed not to do so; and even though her tenuous connection with England was about to come to an end. As a matter of policy, Mr. Scott argued, this court should be reluctant to permit its processes to be used in this way. Once again, these arguments do not seem to me to go to jurisdiction.

Mr. Scott took me to Schedule 1 to the Act, which is headed “Financial Provision for Children”. It was quite plain, he submitted (indeed, it was common ground) that applications under Schedule 1 were applications for maintenance within the meaning of Council Regulation (EC) 44/2001 (Brussels I): see Van den Boogard v Laumen [1997] 2 FLR 399 and Moore v Moore [2007] 2 FLR 339.

Mr. Scott pointed out that Schedule 1 of the Act had no provisions setting out the residential or other basis for jurisdiction, with the exception of paragraph 14. That paragraph, however, empowers the court to make orders against a parent resident in England and Wales on the application of a parent who is living with the child abroad. Plainly, paragraph 14 would cover the situation which is likely to apply in the future in the instant case.

Mr. Scott then turned to the provisions of Brussels 1. Recital (15) of the preamble identifies one of the objects of the convention as: -

Article 2 of Brussels 1 provides that a person “domiciled” in a Member State shall be sued in the courts of that Member State. For Brussels 1 purposes, Mr Scott accepted that the father was “domiciled” in England and Wales since “domicile” for the purposes of Brussels I has an autonomous meaning which is different to the common law meaning and is closer to habitual residence.

Mr Scott pointed out Article 2 was subject to (inter alia) Article 5, and that Article 5(2) provided that in matters relating to maintenance a person may be sued in the courts of the place where the maintenance creditor was domiciled or habitually resident. “Maintenance creditor” for this purpose, he accepted included an applicant for maintenance as well as a person to whom arrears are owed: see Farrell v Long [1998] 1 FLR 559.

In the instant case, however, Mr Scott accepted that both parents were habitually resident and (for Brussels I purposes) domiciled in England and Wales at the date of the mother’s application. He therefore accepted that, but for the French agreement and order, this Court would have jurisdiction to entertain the mother’s application.

Mr Scott submitted, however, there were two separate reasons why as a consequence of the French agreement and order this Court did not have jurisdiction. Either reason, he argued, would be sufficient for the father’s purposes. The first reason concerned the mutual recognition of judgments between Member States and the avoidance of irreconcilable judgments. These were, he argued, policy goals which lie at the heart of Brussels I. Wide scope was given to the term “judgment” in Article 32, and there was no doubt, he argued, that the French judgment of 24 September 2007 was a judgment for the purposes of this case and the application of Brussels 1.

Mr Scott developed his argument by referring to Article 33. This provides that a judgment given in a Member State shall be recognised in other Member States without any special procedure being required. Article 58 provides for enforcement (and thus recognition) of settlements which have been approved by the court in the course of proceedings, so the agreement as well as the judgment would be recognised and enforced in England. For practical purposes the two documents, he submitted, must be read together: the judgment granted official recognition to the agreement, which should therefore be treated as forming part of the judgment.

Mr. Scott submitted that none of the exceptions to recognition set out in Article 34 applied. He also pointed out that Article 34(3) provided that a judgment would not be recognised if it was irreconcilable with an earlier judgment given in another Member State involving the same cause of action and between the same parties. He argued that if this court were to accept M’s application and adjudicate on it, the English judgment would not be recognised (presumably in France) if it (that is the English judgment) was irreconcilable with the French judgment.

Judgments were irreconcilable, he submitted, when they entailed consequences which were mutually exclusive. He referred me to Dicey, Morris & Collins on The Conflict of Laws (14^th Ed.) at 14-218, citing Macaulay v Macaulay [1991] 1 WLR 179 and Hoffman v Krieg [1988] ECR 645. Article 36 provides that “Under no circumstances may a foreign judgment be reviewed as to its substance.” Mr. Scott argued that in the present case the French judgment and the agreement were plainly entitled to recognition. They provided a comprehensive framework which defined and regulated the father’s responsibilities for maintaining I. The penultimate paragraph of the agreement said in terms that its financial provisions constituted “a full and all-encompassing financial agreement covering (I’s) needs in England.”

Mr. Scott submitted that if this court were to embark on an adjudication of the mother’s Schedule 1 claim, it would be reviewing the substance of the French order and agreement, contrary to Article 36: all the more so, he argued, since the French order contained provisions for any review to take place in the Paris court, by mediation in the first instance. If this court were to make an order that would perforce entail consequences which were mutually exclusive vis-a-vis the French order, and thus irreconcilable with it. The order would therefore not be entitled to recognition in other Member States including France which is where, as of next month, I and the mother would be living.

Mr. Scott’s second argument began with Article 23 of Brussels I. This provides (so far as is relevant) as follows:-

Mr. Scott referred me to Coreck Maritime GmbH v Handelsveem BV [2000] ECR I-9337 for the meaning of the words “have agreed” in the then Article 17 of the Brussels Convention. The question before the court had been: was a court considering an agreement restricted to looking at the words of the agreement taken by themselves or was it sufficient if the parties themselves knew in the context of the case which court was to have jurisdiction to settle disputes? The second, less formalistic approach was adopted. At paragraph 14 of the Judgment, the court said:-

Mr. Scott reminded me that in the agreement of 20 April 2007 the penultimate paragraph provided:-

Mr. Scott also reminded me that the order of the French Court, while granting official recognition to the agreement as a whole, specifically “takes formal note that (the mother) agrees not to take legal action in England for the purposes of seeking a contribution towards (I’s) maintenance and education.” Mr. Scott thus submitted that the significant features of the agreement for the purposes of Article 23 were: -

Mr Scot submitted accordingly that the agreement showed that the parties:-

Finally, Mr Scott submitted that although the agreement did not make specific provision for a possible return to France at a later date, it implicitly contemplated that this may happen by the use of the phrase “depending on where the family lives” in the review clause. It could not therefore be suggested that an agreement that the French courts would have jurisdiction when the parties were living in England would lapse when the party who had agreed not to apply to the English courts was intending to return to live in France. Moreover, Mr. Scott argued, it had to be remembered that Article 23 referred to “disputes in connection with a particular legal relationship.” In the commercial context a jurisdiction clause in standard terms of trading might be applicable in relation to more than one transaction. Here the legal relationship in question was the continuing rights and responsibilities of the parties in respect of the maintenance of I. That legal relationship was independent of where the parties lived.

I have set out Mr. Scott’s arguments in extenso. I think it right to say, however, that I am less impressed by the first limb as set out in paragraphs 27 to 31 above than I am with the second. Brussels 1 deals with three topics. They are: (1) jurisdiction; and (2) and (3) the recognition and the enforcement of judgments. Despite the exclusive jurisdiction clause, the French judgment (for that is what it plainly is) was, under Brussels 1, capable, as Mr. Scott recognises, of being both recognised and enforced in England. In my judgment, as I think Mr. Scott was minded to concede in argument, it was also capable of variation in England. In my judgment, a variation would not be irreconcilable with the French decision: it would, by definition, start with the French order and be a variation of it. Equally, such a variation would not, in my judgment, be in breach of Article 36 of Brussels 1 since it would be a variation based on a change of circumstances. That change, moreover, is inherent in the agreement itself, which envisaged the parties sharing an apartment in London. This did not happen, and as a result the father made financial provision for I which was different (and more generous) from that which had been agreed and ordered.

In summary, therefore, I think it at the lowest arguable that the mother could have registered the French order in England and that, once registered, it could have been either enforced or varied. I am not, accordingly, attracted by the first limb of Mr. Scott’s argument which thus fails.

Is the mother, however, entitled to take fresh proceedings under Schedule 1 in England? On this point, Miss Lister submitted that there was no clear agreement in respect of the mother’s application to live in France with I. She argued that numerous difficulties had been placed in the way of the mother’s return, and that in particular there was no agreement about financial support, accommodation, schooling, contact or other associated matters. She submitted that the father’s opposition to her current summons was a device to make life difficult for her. She submitted that the mother could only move if she could be confident about what she was moving to, and that she would have the means to support herself and I. She submitted that the applications to relocate and for financial provision should be heard together. She pointed to the father’s failure to file his form C10A.

Miss Lister also relied on the fact that the father ceased the generous level of support identified in paragraph 12 above when he learned of her application to the court under Schedule 1 of the Act. The mother no longer had her flat in Paris. She was dependent upon the father for the cost and upkeep of her accommodation. She could not be expected to move without her financial position being clarified by this court.

Miss Lister further submitted that the changes between the agreement and the court order in France may have been made as a result of the French Court accepting and understanding that jurisdiction over matters relating to a child pursuant to the Act (including an application under Schedule 1) could not be ousted where the child was habitually resident in England and Wales.

Miss Lister submitted that ratification of the agreement by the French Court was not the same as an adjudication by the French Court and the making of a court order. The French Court, she argued, was not seized of the case.

Miss Lister also sought to rely on what she submitted was the mother’s ignorance of the provisions of Schedule 1 to the Act when entering into the French agreement. She submitted that the mother did not receive legal advice on the point at the time she entered into the April 2007 agreement or when she consented to the ratification of the altered agreement in September 2007. She could not therefore, Miss Lister submitted, be said to have knowingly agreed not to make an application for provision in England. Miss Lister also submitted that there was no power to contract out of the Act.

Specifically on Article 23, Miss Lister submitted that if the mother were to choose not to relocate with I to France it would be absurd if the English court were not to have jurisdiction to make orders for I’s support. She pointed to the father’s acceptance that the court in England had jurisdiction in non-financial matters relating to I pursuant to Article 8 of Brussels 2. She asked rhetorically whether the father was asserting that if the Court in this jurisdiction declined the mother’s application to take I to live in France, or if the mother chose not to go as a result of the lack of agreement as to the arrangements for I, the court still had no jurisdiction to hear financial issues? That, she argued, would leave I in limbo and potentially without support.

Miss Lister made the following five submissions in her skeleton argument: -

Finally, Miss Lister submitted that, in the event of a removal to France, paragraph 14 of Schedule 1 of the Children Act 1989 came into play restricting the Schedule 1 claim against the father living in this jurisdiction to maintenance only. It was correct – see Article 5(2) - that once the mother’s habitual residence was France, she could no longer sue the father in England for maintenance debts. If it was correct that he was domiciled in France – he had never disclosed anything connected to his immigration status – he could only be sued in France after the mother’s country of habitual residence became France. She submitted that father’s ability to hide behind his reluctance to disclose details of his own position had no bearing on the mother’s need and entitlement to have financial issues relating to I dealt with in this jurisdiction. However, the effect would be that the mother’s claim for capital provision for the benefit of I could not be pursued. In these circumstances, the mother could not be said to be “forum shopping” but the father could.

I have set out Miss Lister’s submissions in extenso, but I have to say that I am entirely unimpressed by them, save that I agree with her that it would be a nonsense – and quite contrary both to the letter and to the spirit of Brussels 1 - for two separate sets of proceedings to be running at the same time in respect of the same child, in two separate jurisdictions. In so far as Miss Lister’s submissions go to jurisdiction, however, they seem to me wholly without force. For example, it is simply not open to Miss Lister to argue, as she did, that the mother did not receive proper advice before entering into the agreement or being a party to the application to the French court. In my judgment, the mother is bound by the agreement and the subsequent court order. There is not a jot of evidence to support the mother’s argument that she was not properly advised.

It is true that the terms of neither the agreement nor the judgment are “exclusive” but it seems to me plain that the parties envisaged any disagreement between them would be resolved either by mediation or by court order in the French proceedings. The critical phrase in Article 23 is: “Such jurisdiction shall be exclusive unless the parties have agreed otherwise”. Have these parties “agreed otherwise”? I do not think they have. The evidence is all the other way. The mother firstly said it was not her intention to litigate in England and then, in the court order, she agreed not to apply here.

Equally, although the court order refers only to “the parties’ agreement to seek mediation in the family court in the event of difficulty” this can, in context, only refer to the agreement to seek mediation in the French court. It follows, in my judgment, that Article 23 is fully engaged, and that the French court has been given exclusive jurisdiction.

In my judgment, process is important in family law. The English jurisdiction could, arguably, have been engaged by registration of the French order and then by its variation. On the facts of this case, fresh proceedings in England fly in the face of Brussels 1.

Had the mother sought to register and then to vary the French order here, she would, no doubt, have been met with the same arguments as to jurisdiction, but at least she would have had Brussels 1 material to counter them. As I have already stated, there was a powerful case for variation, as the Paris agreement had not been implemented, and the parties were living in separate accommodation. The mother did not follow this course because of the father’s initial generosity. But in my judgment, if the mother was to proceed in England, registration and variation remained (and remains) the right course.

On the facts of this case, it is not enough for the mother to submit, as Miss Lister does, that it is not open to her client to contract out of the Act. Such an argument might have force if there were no other remedy, but that is patently not the case. The mother has the benefit of a French order and the right to apply to that court for its variation if it is inadequate.

It follows that on the second limb of Mr. Scott’s argument, I greatly prefer his submissions. I do not think that, on the facts of this case, the mother is entitled to bring proceedings under Schedule 1 in relation to I. This is not because she had said she would not, but because of the terms of the terms of Article 23, the terms of which I have set out in paragraph 32 above.

I am reinforced in this conclusion by several factors, of which I will identify two. The first is that Article 23 appears in section 7 of Brussels 1 which is entitled “Prorogation of jurisdiction” ; furthermore, it plainly makes sense for there to be one set of proceedings rather than two. The second is that the mother – as I have already stated - is in no sense left without a remedy. Had she chosen the enforcement in England / variation route her argument might well have been stronger. However, she did not do so and as it is, this is plainly a French case, between two parents one of whom intends to live in Paris with the child involved, both of whom speak French as their native language, and who between them have a French child who will be living in France. It is plainly open to the mother to apply in Paris for a variation of the order in the event that it proves impossible for such a variation to be negotiated.

Whilst I am therefore sympathetic to the argument that the mother would prefer to know where she stands before she moves, such an argument does not, as it seems to me, go to jurisdiction. In my judgment the English court does not have the jurisdiction to entertain the mother’s summons, which will be dismissed.

For completeness, I add that if I am wrong about jurisdiction, then, for the reasons I have already advanced, I would not exercise the English jurisdiction to make a substantive order in the mother’s favour. The mother already has the benefit of an order. She and the child will be living in Paris. A French court, if called upon to do so, is far better able to adjudicate upon the support to be made for a French child living with her mother in France, even if her French father is living in London.

What follows is not strictly necessary for my determination, but needs, nonetheless to be said. It is in my judgment most unfortunate that this family should have to spend so much time and money on this ultimately sterile issue. Both parents should re-think. The mother must not use I as a weapon against the father. She should not artificially delay her return to Paris in order to put herself in what she would perceive to be a stronger negotiating position. Any attempt now to change tack and apply to register the French order in England would be plainly perceived as – indeed it would be - a tactic. Equally, the father must not use his wealth as a weapon against the mother. It is in I’s interests that she should move comfortably to Paris: it is not in I’s interests that her mother should feel impoverished or resentful. Both parents need to pause, draw breath, and negotiate a future which is calm, peaceful for I and in her best interests. If that cannot be achieved by negotiation (and in this respect it behoves the father to be magnanimous) the parents should seek the expert mediation of the French court, as they agreed in 2007. Only if all else fails should they resort to further litigation.