LM v KD

This judgment sets out the reasons for my decision in two appeals heard in the Family Division against orders by judges refusing to stay separate but connected proceedings in different English courts between two parties of Italian origin, who are married but separated, and are hereafter referred to as the husband and the wife.

The principal question arising in each appeal is whether jurisdiction in respect of the matters in issue lies, as the wife claims, with the courts of England and Wales or, as the husband maintains, with the courts of Italy.

There are no fewer than five sets of proceedings ongoing in England and Italy arising out of the disputes between the parties. In chronological order, the proceedings are as follows:

The parties were married in Turin in July 2006. They have one child, a girl, I, born in 2010 and now aged 8. The wife, who has lived and worked in England since 2004, has dual Italian and British nationality, as does the child I. The husband is an Italian national.

At the time of their marriage, the parties selected the Italian community property regime (“comunione dei bene”). In 2008, however, following the death of the husband’s uncle, who had designated the husband as his sole heir, they executed a notarised deed by which they opted for the separation of property regime (“separazione dei bene”). The husband’s inheritance from his uncle included liquid assets valued in excess of €4 million and 68 real estate properties.

In August 2009, the parties purchased a property in West London (hereafter referred to as “the London property”). The property was purchased in joint names and the Form TR1 filed with the Land Registry recorded that the beneficial interest was held by the parties as joint tenants. The wife’s case is that the purchase price and costs associated with the purchase were provided from jointly-owned funds held in the parties’ joint account. The husband’s case is that the funds for the purchase, and for subsequent improvement works at the property, were provided entirely from his inheritance from his uncle and only paid into a joint account for administrative purposes. Subsequently, the parties and I moved into the property and occupied it as a family home. The wife claims that building work was started at the property but never finished.

The parties separated in January 2016. The wife and I left the property and moved to rented accommodation in London. On 23 March 2016, the husband issued judicial separation proceedings in Turin. The petition or application initiating the proceedings included requests directed at the President, in respect of provisional and urgent measures, and at the Court, in respect of final orders. The provisional and urgent measures included authorising the parties to live separately, orders in respect of I (joint custody mainly at the wife’s home with defined contact to the husband), no obligation for spousal maintenance, and an order for child maintenance. By way of final order, he asked the court to order the legal separation of the spouses, to order that custody of I be jointly shared between the parents, with physical custody mainly at the home of the wife and defined contact to the husband, and to find that he should pay a monthly allowance for the maintenance of the daughter in the sum of €500, plus further payments in respect of her healthcare and education. The petition did not include any application for capital orders or orders in respect of the London property or any other property.

Prior to service upon her of the husband’s judicial separation proceedings, the wife, on 19 May 2016, issued divorce and financial remedy proceedings in this country in the Central Family Court. Subsequently, however, she conceded that the husband’s judicial separation proceedings had been made first in time and that Italy was properly seised of those proceedings. On 1 June 2016, her divorce petition was therefore stayed by consent.

On 29 August 2016, the mother filed an application in the West London Family Court for orders under s.8 of the Children Act 1989, namely an order that I live with her, a specific issue order permitting her to take I to Italy over the following Christmas holiday, and a prohibited steps order that the husband be prevented from removing the child from her care and control or from the jurisdiction of England and Wales, and further prohibited from attending at I’s school. The mother also sought a declaration that the child was habitually resident in this country. In accordance with normal procedure, the application was referred to the Children and Family Court Advisory and Support Service (“Cafcass”) for safeguarding checks to be carried out.

On 6 October 2016, the wife issued ToLATA proceedings in the Central London County Court seeking an order for sale of the London property with an equal division of the net sale proceeds. It was her case that the declaration of trust on the TR1 form is binding in accordance with well-established principles – see Pettitt v Pettitt [1970] AC 777, Goodman v Gallant [1986] 1 FLR 513, and Pankhania v Chandegra [2012] EWCA 1438, in which Mummery LJ summarised the principle at paragraph 27:

“In the absence of a vitiating factor, such as fraud or mistake, as a ground for setting aside the express trust or as a ground for rectification of it, the court must give legal effect to the express trust declared in the transfer.”

On 17 October 2016, a First Hearing Dispute Resolution Appointment (“FHDRA”) in the mother’s application for orders under s.8 took place at the West London Family Court before District Judge Bloom. Both parties were represented. The order recorded that the Cafcass safeguarding checks had disclosed allegations that the husband had physically, sexually and emotionally abused the mother and physically and emotionally abused the child. The order further recorded a number of issues about which the parties were agreed, including (1) that there would have to be a fact-finding hearing to determine the truth of the mother’s allegations; (2) that I was currently living with the mother; (3) that I was habitually resident in England; (4) that the mother and I should be permitted to travel to Italy for Christmas; (5) that the father should not attend the school at present, and (6) that the father should have indirect contact with I every day by telephone. The issues to be resolved were (1) whether I should live primarily with the mother or under a shared care arrangement; (2) what contact the father should have with I; (3) the truth of the mother’s allegations, and (4) whether, if findings were made in respect of those allegations, any work should be undertaken with the father prior to final decisions being taken with regard to the child arrangements being resolved. The court made various case management directions, and listed the matter for a Dispute Resolutions Appointment hearing in January 2017. In view of subsequent events, it should be noted that the order of 17 October 2016 did not contain an express recital that the father accepted the jurisdiction of the court to determine issues relating to parental responsibility, although there was nothing on the face of the order to suggest that he challenged the jurisdiction.

On 18 October 2016, the wife issued another application in the West London Family Court (under a separate number from the s.8 application) seeking orders under Schedule 1 of the Children Act 1989, including a school fees order and a child maintenance order (on the grounds that the father’s income derived entirely from Italy so that the Child Maintenance Service had no jurisdiction).

On 19 October 2016, the husband filed a further claim against the wife in the Turin court (hereafter referred to as “the Italian property proceedings”) seeking the equivalent of declaratory relief, and asking the court to affirm that the wife has no rights in respect of his inheritance from his uncle and to rule that he was the sole owner of the assets and property inherited from his uncle and the profits derived therefrom. In this claim, the husband asserted inter alia that these assets were all subject to the separazione dei bene regime, that there was no intention on his part to give any property to the wife, and that the burden of proving that he did intend to make a gift rested with the wife. In his claim, the husband described the purchase of the London property in these terms:

“At the time of purchase, the property was in the name of both [the husband and wife]. [The wife], however, did not pay any sum nor integrate her purchase share, although there was never any intention on the part of the plaintiff to donate the purchased property in whole or in part, or to waive the credit relating to his wife’s share, since [the husband] paid and advanced the purchase price in full for the sole purpose of completing the purchase expeditiously.”

On 29 October 2016, the wife filed her response to the husband's Italian separation petition. She accepted the Italian court’s jurisdiction in respect of the proceedings for legal separation and spousal maintenance, but challenged that court’s jurisdiction to make orders relating to the custody and maintenance of I, and asked the court to declare that jurisdiction in respect of those matters lay with the English court. In the alternative, if the Italian court rejected her request for such a declaration, she requested that the court grant custody of I to her with limited contact with the husband, and order that the husband pay maintenance for the child plus her school fees.

On 10 November 2016, the husband filed an application for a stay of the ToLATA proceedings on the basis that the Italian court was seised of the parties’ judicial separation proceedings, as well as with the “financial and maintenance aspect of the spouses’ respective claims”.

On the same day, a hearing took place before the Turin court, attended by both parties. According to the husband, the wife not only submitted to the jurisdiction of the Italian court but also applied specifically for financial orders for maintenance for herself and for I and also for a school fees order. The Turin court adjourned the matter until after the next hearing in West London. The order recited that the husband offered to pay €500 per month as maintenance for the child on an interim basis. The basis on which the hearing was adjourned has been a matter of dispute between the parties in part because of disagreements about translation of the Italian court documents.

On 30 December 2016, the wife filed a defence and counterclaim in the Italian property proceedings denying that the husband was entitled to the relief sought, asserting that the husband had intended to make a gift to her of funds transferred into accounts held in their joint names, seeking repayment of sums transferred by the husband from those joint accounts (totalling over €730,000), and, having referred to the ongoing ToLATA proceedings in England, asking the court to stay the Italian property proceedings, “limited to the head of the [husband’s] claim concerning the origin of the sums used for the purchase of” the West London family home.

On 9 January 2017, a hearing took place before District Judge Willans (as he then was) at West London in which he gave further case management directions in respect of both the mother’s application under s.8 and her application under Schedule 1. In the s.8 proceedings, the judge made an order in which he (1) recited that the wife had made a number of allegations of domestic abuse against the husband and that the parties were agreed that there should therefore be a fact-finding hearing, (2) gave extensive case management directions for a future fact-finding hearing, (3) ordered by consent that I should live with the mother, and (4) ordered that, pending the fact-finding hearing, I should have defined indirect contact with her father but no direct contact. On this occasion, the order in the s.8 proceedings also included a declaration, made with the consent of both parties, that I was habitually resident in England and that the English court was seised, “by virtue of international law and by the parties’ agreement, with all matters relating to where I should live and what contact she should have with her father”. In respect of the Schedule 1 application, however, it was contended on behalf of the father that the court had no jurisdiction to entertain the application because the Italian court was seised of all financial matters relating to the divorce, including financial provision for the child which in turn included provision of school fees. District Judge Willans ordered the parties to instruct a single joint expert to advise as to whether Italy or England had jurisdiction with regard to school fees provision, and gave consequential case management directions.

On 22 March 2017, District Judge Jenkins made an order in the Schedule 1 proceedings in which he recorded his decision that the English court had jurisdiction relating to a school fees order and any future application for child maintenance, and that the Italian court did not have jurisdiction relating to those matters. The order provided case management directions leading to “an FDR style” hearing on 5 May 2017. The directions included arrangements for valuation of 68 properties owned by the father in Italy. The transcript of the hearing reveals that an expert report from Mrs Rebecca Bailey-Harris, a barrister and academic specialising in family law, on the issue of jurisdiction had been filed and served on the morning of the hearing in which, relying on the decision of the CJEU in A v B (Case C-184/14), she advised that jurisdiction lay with the courts of the country seised of proceedings relating to parental responsibility rather than “status” proceedings (i.e. relating to divorce or judicial separation). It seems that the husband and his lawyer had not seen the report before that morning, and the judge therefore adjourned the hearing until later in the morning to give them time to consider it. When the hearing resumed, it was briefly submitted on behalf of the father that the present case was distinguishable from the decision in A v B because (according to the husband, though not accepted by the wife) the wife had herself applied for relief from the Italian court. The district judge indicated that he did not consider this to be a material distinction and that, in the light of the report, he was of the view that jurisdiction in respect of child maintenance lay with the courts of the country seised with proceedings relating to parental responsibility. He expressed his view in these terms:

“it seems to me that, even if this mother had made an application to the Italian courts for exactly the same relief that she is seeking here, the points of principle that have been established in A v B are that it does not really matter who has brought the proceedings, the question is a jurisdictional one, and questions of determination of jurisdiction and which of the national courts might be seised of that jurisdiction doesn’t depend on applications that individuals may have made but where the … substantive proceedings are currently proceeding, and where there are proceedings that deal with status, as there seems to be in the Italian courts, and proceedings here in relation to parental obligations, then the points of principle that have been determined seem to me to apply irrespective of who made the initial application where.”

After hearing the judge’s indication, and taking instructions from the husband, the husband’s solicitor accepted that the English court had jurisdiction, and the court order included a recital that the husband was “acknowledging that jurisdiction in relation to the [wife]’s application for a school fees order and any future applications for child maintenance or school fees order in relation to the child lies with this court and NOT in Italy”.

On 4 April 2017, however, a notice of appeal was filed on behalf of the husband against the decision of District Judge Jenkins. The grounds of appeal were as follows:

“(1)

That the district judge erred in law by incorrect application of Article 12 of the 2009 Maintenance [Regulation] where a matter has already been seised by a foreign court and is still sub judice.

(2)

That the court had a lack of jurisdiction to deal with child maintenance because H’s income is below £104,000.

(3)

That the [wife] had previously recognised the lack of jurisdiction of the courts in England and Wales by withdrawing on her own accord an application to the Child Maintenance Service.

(4)

That the correct procedure for varying a foreign maintenance order had not been followed.

(5)

That the judge misdirected himself on the law in relation to jurisdiction and wrongly found that the case was equivalent to that of A v B (Case C-184/14) when there were clear differences in the circumstances.

(6)

That the court misdirected itself in procedure in (i) allowing an advice from counsel as expert evidence, (ii) admitting that evidence at court without notice [and] (iii) failing to give [the husband] time to prepare a full response to the application and evidence presented.

(7)

The substance of the order is wholly disproportionate as there was no need to disclose and value the Italian properties when the net income from those properties is fully declared.

(8)

That the order drafted does not reflect the position of [the husband] in respect of the recitals, especially as to his acknowledgement of jurisdictional points.”

On 20 and 21 April 2017, a fact-finding hearing in the s.8 proceedings took place at West London before Deputy District Judge Forster. At the conclusion of the hearing, the judge reserved judgment.

The ToLATA application was listed for a preliminary hearing before HH Judge Parfitt on 12 May 2017 to determine the question of jurisdiction. Notwithstanding the terms of the husband’s application for a stay, it was conceded on his behalf in the course of the hearing before Judge Parfitt that the ToLATA claim had as its subject matter title to English property and that as a result was within the exclusive jurisdiction of the English courts. It was asserted on behalf of the wife that the husband’s Italian lawyers had made a similar concession in the context of the Italian proceedings. Judge Parfitt noted that the concession was well made, in the light of the decision of the Court of Appeal in Magiera v Magiera [2016] EWCA Civ 1292. It was further conceded in the course of argument that, given the exclusive jurisdiction of the English courts, there was no residual inherent jurisdiction to stay the proceedings on the grounds of forum non conveniens. The issue for Judge Parfitt to determine, therefore, was whether or not the court should stay the ToLATA claim to enable the issues to be dealt with in the context of the matrimonial proceedings. Having reminded himself of the decision of the Court of Appeal in Miller-Smith v Miller-Smith [2009] EWCA Civ 1297, and in particular the dicta of Wilson LJ (as he then was), the judge reached the following conclusions as to the law (at paragraphs 11 to 12):

“11.

… First, that what to do about ToLATA proceedings in circumstances where there is a ToLATA case between two spouses is a matter of discretion. Secondly, the normal exercise for that discretion would be to allow, or enable, the Court to consider what should happen to the jointly-owned home in the context of the wider discretionary and more holistic approach provided for by the financial remedies jurisdiction, rather than the more limited ToLATA jurisdiction. But that, in exercising the discretion, the Court should bear in mind in particular whether it is reasonable to leave the matter to be resolved within that context, and also in particular have regard to the likely timeframe, as well of course as in an exercise of any discretion, to have a very tight regard to the particular circumstances of the facts before the court. In the present case, it is not a situation where there are two sets of proceedings or are likely to be in the very short future, two sets of proceedings in this jurisdiction.

12.

The basis upon which this jurisdiction’s courts could exercise [their] powers in respect of the financial remedies arising out of the breakdown of this relationship will not be exerciseable at all until such time as there has been a divorce in the Italian proceedings.”

The judge went on to observe that the court cannot know but only speculate when the parties would be in a position to seek ancillary relief in this jurisdiction. Furthermore, on the particular facts of this case, he observed that it was difficult to see what substantive advantage the husband would gain from putting off these proceedings. His case was that the whole of the beneficial interest of the property belongs to him. It was the wife who asserted that the property was held on trust as set out in the TR1. He concluded that it was:

“ … far more likely that the primary motivation in respect of this application, which has rather wriggled on the hook of its legal inaccuracies, is that it is being pursued for the purposes of a perceived procedural advantage, and to try and put off the question of dealing with this property, and potentially perhaps to place more pressure on the … wife.”

He concluded that, given the lack of any ancillary relief proceedings in this jurisdiction, it was far more preferable for the issue in respect of the property to be dealt with sooner than later. He therefore dismissed the application for a stay, ordered the husband to pay the wife’s costs of the hearing in the sum of £6,480, and gave directions in the proceedings leading to an “FDR-style” hearing on 20 July 2017.

On 18 May 2017, a further hearing took place in the separation proceedings in the Turin court before the Acting President, Judge Maura Arisio. Both parties were again in attendance with their lawyers. What precisely took place has again been a matter of dispute between the parties, in part because of issues over translation of the relevant documents. It is clear, however, that the parties were in disagreement as to whether the Italian court had jurisdiction to deal with issues relating to parental responsibility and child maintenance. On behalf of the wife, it was contended that jurisdiction lay with the English court because I was habitually resident in this country. On behalf of the husband, it was contended that jurisdiction lay with the Italian court because the issues were ancillary to the judicial separation proceedings. According to the husband, however, the wife’s lawyer indicated in the course of the hearing that her client accepted the jurisdiction of the Italian court to avoid further delay. A translation of the court record of the hearing on 18 May 2017 includes the following passages:

“Counsel … agree that the request separation between the spouses must be decided by the Court of Turin.

Counsel also … agree that the minor child’s habitual place of residence is in England ….

They disagree, however, as to the following: [the wife’s counsel] states that the [order of DJ Willans dated 9 January 2017] was because both parties had recognised the jurisdiction of the English judge to rule on the placement of the minor child and the issue of the non-custodial father’s visitation rights, while [the husband’s counsel] submits that the jurisdiction of the English judge was never recognised as to either issue, such that the order in question was appealed before the West London Family Court, because the English judge had no jurisdiction to rule either issue. The appeal was based on the fact that, instead, the Court of Turin had jurisdiction over the guardianship and placement of the minor child, as it was the court first seised with respect to the English court ….

Counsel are therefore not in agreement as to jurisdiction since [the wife’s counsel] recognises the jurisdiction of the English judge to rule on the placement and guardianship of the minor by agreement between the parties pursuant to paragraph 2 … of the order at issue, whereas [the husband’s counsel] asserts … the jurisdiction of the Italian court, denying that there was agreement between the parties before the English judge, as erroneously indicated by the same judge in his order.

[The wife’s counsel] submits that the order was only appealed as to matters relating to the amount of the husband’s income and therefore solely for the jurisdiction of the English body seised, not because, according to the father, the English court has jurisdiction rather than the administrative body seised, but that this has nothing to do with jurisdiction, which remains in any case still that of the English authority, whatever it may be, and not the Italian one.

[The husband’s lawyer], on the other hand, contrary to that which is stated above, asserts that the appeal only concerns issues of maintenance; accepts the jurisdiction of the Italian judge to rule on the application for separation, as well as the issue of the placement and guardianship of the minor child pursuant to Article 14 of [the Maintenance Regulation] and Article 12 of [Brussels IIA]. He filed an order of the Court of Rome of 23 October 2015 that in a similar case ruled on the placement and guardianship of the minor, reserving for the merit phase any decision on the preliminary ruling relating to jurisdiction.

On this issue, [the wife’s counsel], in consideration of the urgency that the ruling be issued in the interest of the minor child by the President of the Court, and that a ruling be issued in the interest of [the wife] by the President of the Court, ask that the claims on the merits raised in the defence submissions be admitted, declaring to abandon the objection of lack of jurisdiction of the Italian court raised in the context of a reference for a preliminary ruling.

In turn, [the husband’s counsel], having acknowledged [the wife’s] acceptance of the jurisdiction of the Italian judge, asks that the proceedings continue with a view to taking both the measures by the President of the Court, on this occasion, and then the referral of the separation judgment before the Examining Judge regarding acceptance of the claims on the merits.”

Following these submissions, Judge Arisio on 22 May 2017 made a ruling, a translation of which has been put before me and includes the following by way of recital, namely that the judge

“ – noting that [the wife] having waived during the hearing of 18 May 2017 the objection of jurisdiction raised by the same, with the consequent request of both parties to issue the court order specific to this office and then to proceed to the examination and the decision of the issues raised by each party – the parties substantially disagree as to custody (exclusive, requested by the [wife], or shared, requested by the [husband]), as well as to visits between the [husband]/minor child and, in all cases, on the terms of these visits …

-

having taken note that the parties have, in the end, requested a postponement to, inter alia, reach an agreement, but that it appears necessary to resolve the situation of the minor child in view of the future upcoming fixed hearing to examine whether and how the agreement reached, if any, corresponds to the interests of the minor child, and – if no agreement is reached – to issue an order concerning the custody of the minor child, her placement and visiting rights …

-

considering that the child is currently residing in London with her mother, while her father has declared that he has moved his residence to Italy, although he often stays in England, in the former marital home …

-

finds it necessary, therefore, to have international social/psychological investigations carried out by the relevant Services, since the minor child currently lives in England, in order for the Services to carry out the following assignment: ‘determine and report on the Services institutionally responsible and now in charge regarding the living conditions of the minor …; refer in particular to her relationship and emotional ties both with her mother and with her father, identifying which possible placement/visit is better corresponds to the interests of the minor child, also taking into account the parental ability of each parent’”

Judge Arisio listed the matter for a further hearing on 24 November 2017, ordered the report from the “appointed Services” to be filed at least 10 days before that hearing, and further ordered that the assignment directed by the court “be properly translated into English” by the husband’s representatives in order that it could be said to the appointed Services.

On 1 June 2017, Judge Perego sitting in the court of Turin in the Italian property proceedings gave a ruling on the wife’s application for a stay. Prior to the hearing, the husband’s lawyer, Signor Giambrone, had filed a memorandum stating inter alia that:

“It is evident that, regarding the ownership of the share of the real property in London, the jurisdiction is held exclusively by the English courts, which will have to decide solely on the application of English law,

The translation of the court minute of the hearing of 1 June 2017 states inter alia:

“Held that the suspension (even partial) of the judgment should not be ordered, since the issues before this Court differ from those in the judgment pending before the judicial authority of the United Kingdom, which was not asked, in this case, to ascertain the ownership of the property purchased by the parties in London in relation to which [the husband] has not expressly made any request and has expressly excluded [in the memorandum filed prior to the hearing] having intended to make the request;

Held that this clarification is relevant because in the ‘statement of facts’ section of the writ instituting the proceedings, the party referred to the property and stated that [the husband’s] exclusive ownership of the property resulted from the amounts used to purchase it, such that, absent an issue raised by the party on this point, this constitutes a mere logical inference by the party on which the Court is not asked to rule.”

On 2 June 2017, the husband filed a notice of appeal against Judge Parfitt’s refusal of the stay and costs order. The grounds of appeal against Judge Parfitt’s order refusing the stay of the ToLATA proceedings were that he had:

On the same date, the husband’s solicitors filed a Defence and Counterclaim in the ToLATA proceedings, asserting inter alia that the declaration of trust on the TR1 form had been executed by mistake, that it was the parties’ common understanding and intention at the time of its purchase that the beneficial interest in the property would be held for the husband alone, and that the parties hold the property as joint tenants under a constructive trust for the husband, and asking for an order that the property be transferred into his sole name.

On 7 June 2017, following the fact-finding hearing in the s.8 proceedings in April, Deputy District Judge Forster delivered a judgment in which she made certain findings of domestic abuse perpetrated by the father. In the order made following the judgment, she made various case management directions, including an order for a report by Cafcass in the light of her findings and gave permission to disclose court documents from the proceedings to the Italian court. In the interim, contact between I and her father remained on an indirect basis only. The order of 7 June also included a recital by the court

“reiterating, for the avoidance of any doubt or future argument as to the jurisdiction of the Italian courts in the extant Italian proceedings, that, as set out in the order of DJ Willans, this court is seised of all matters relating to I and her welfare, including all issues relating to the exercise of parental responsibility such as who I should live with and how much contact she should have with the father”.

Directions in the husband’s appeal against Judge Parfitt’s ruling as to jurisdiction in the ToLATA proceedings were made by a judge of the Queen’s Bench Division but subsequently it was decided to transfer the appeal to the Family Division. On 7 July 2017, I listed the application for permission to appeal in the ToLATA case for hearing with appeal to follow on a date to be fixed in October 2017, giving various case management directions.

On 25 July 2017, the husband’s application for permission to appeal against DJ Jenkins’ order came before HH Judge Karp. After hearing argument, she made an order transferring the appeal in respect of the decision as to jurisdiction regarding the Schedule 1 application to the Family Division to be heard alongside the appeal in respect of the jurisdiction as to the ToLATA jurisdiction. The judge made an order that the husband do pay a sum representing 50% of the school fees for the forthcoming term, gave further directions to facilitate the appeal hearing, including as to the production of and payment for transcripts of the hearing before the district judge, and ordered the husband to pay the wife’s costs of the hearing before her.

On 30 August 2017, following further issues being raised by the parties, including a dispute as to the translation of documents, Judge Arisio in the Turin Court made a further order containing case management directions. The order included a recital that “after the express abandonment by [the wife] of the exception of jurisdiction of the Italian court initially raised … any issues may be examined at the hearing scheduled for 24 November 2017, with the parties being invited, in the meantime, to actively collaborate in the interests of the minor.”

On 18 September 2017, the husband filed an application for permission to rely on new evidence in support of his appeal against the decision of DJ Jenkins of 22 March, consisting principally of statements from his Italian lawyer as to the proceedings in the Turin court, including details of the hearing on 18 May. The husband also sought to rely on expert opinion that the wife had interfered in I’s indirect contact with her father by playing a recording of I’s voice rather than allowing her to speak to her father over the phone. The application to adduce further evidence was opposed by the wife. She did not accept the husband’s lawyer’s account of the hearing on 18 May. She contended that the assertion that the Italian court had exclusive jurisdiction with regard to child arrangements for I was “plainly entirely wrong”. It was further denied that the wife had accepted the jurisdiction of the Italian court save for provisional urgent measures. Objection was also taken to the reference to expert evidence concerning the telephone contact.

On 28 September 2017, a further hearing took place before Deputy District Judge Forster at West London in the s.8 proceedings, following the filing of a report by Cafcass identifying resources available to the father for work in the light of the court’s findings in the judgment delivered on 9 June. The judge made a contact activity direction pursuant to s.11A of the Children Act, directing Cafcass to make a referral to one of two agencies running domestic violence perpetrator programmes for the father to engage in an eligibility assessment for an appropriate programme. The order included a recital that the parties were agreed that the father should engage with a domestic violence perpetrators programme and a parenting course as recommended by Cafcass. Further case management directions were also made.

The hearing of the two applications for permission to appeal were first listed before me on 4 October 2017. In the course of the hearing, however, it became clear that the documents from the Italian proceedings put before the court were incomplete. I adjourned the applications, giving further directions, including for the translation all applications, statements and orders from the Italian proceedings, the cost to be borne by the husband in the first instance. The translation of the documents continued to give rise to disagreement between the parties, and on 7 November, I gave further directions concerning that matter. Notwithstanding those directions, the issues were unresolved by the the next hearing on 10 November. I therefore adjourned the hearing again to 26 January 2018. I recorded that the court was of the view that translation of the Italian documents was necessary for the determination of the appeals but that, in the interests of justice, the translations had to be provided by 12 January 2018 and that, if they were not so provided, unless the date was varied by further court order, the applications for permission to appeal should stand dismissed. At the hearing, the husband also undertook to pay the school fees and all reasonable extras for the child as they fell due pending determination of the appeal, without prejudice to any ongoing proceedings in England or Italy. I gave further case management directions in preparation for the hearing in January.

On 16 November 2017, a further hearing took place in the s.8 proceedings before Deputy District Judge Forster at West London. At that hearing, the husband applied for an adjournment and stay of the proceedings pending the determination of the appeals before this court. The order included a recital that the husband stated that he did not engage with the domestic violence perpetrators programme eligibility assessment on advice from his Italian lawyers and that in any event he had not received the information about the programme because it had been sent to the wrong address. The order further recorded that the husband had also stated that he did not engage with the programme because he believed that the court did not have jurisdiction. The deputy district judge adjourned the proceedings to be listed before a circuit judge, making further case management directions.

Meanwhile, the hearing before the Italian Court listed 24 November 2017 was adjourned, in part because no welfare report had been produced by the English social services as directed by Judge Arisio. The hearing eventually took place on 19 December 2017 before the acting President, Judge Giannone, although apparently there was still no report from England. At the conclusion of that hearing, the judge reserved her decision

The hearing of the two applications for permission to appeal resumed before me on 26 January 2018. At that stage, the judgment of the Italian court following the hearing on 19 December 2017 was not available. The hearing before me nevertheless went ahead on 26 January, after which I reserved judgment.

On 12 February 2018, Judge Giannone handed down her decision in the Turin court. The precise terms of that order have been the subject of dispute between the parties. I have been supplied with three translated versions, none of which could be said to be definitive or fully agreed. Having considered the various versions, however, it seems to me that there is no significant disagreement about the broad terms of the order. The principal order was that the spouses should live separately. For the purposes of these appeals, however, the important part of the decision was the series of provisions akin to recitals and declarations in an English order, in which the judge inter alia:

On 15 February, solicitors acting for the wife wrote to the court enclosing a translation of the order of 12 February (by a bilingual pupil of the wife’s Italian lawyer) and asking that the matter be listed for directions. At my direction, the Family Division Appeals Office wrote to the parties inquiring whether, in the light of the further information, they wished the court to list the matter for a further hearing or alternatively wanted to file further written submissions. On 14 March, the husband’s solicitor wrote to the court agreeing that the matter should be listed for further directions, raising objections to the translation of the Italian order of 12 February provided by the wife’s team, stating that the husband had lodged an appeal against the order, and reiterating their client’s position that both proceedings should be stayed until the issue of jurisdiction was finally determined by the Italian court as the court first seised. On 29 March, the husband’s solicitors wrote again enclosing their translation of the order of 12 February and their client’s notice of appeal against that order. Further correspondence was filed addressing allegations by the wife about the accuracy of the documents submitted by the husband. I therefore listed the matter for a further hearing on 24 May to consider further directions.

At a hearing on 9 May, the Court of Appeal in Turin dismissed the husband’s appeal against the order of 12 February. Again, I have been provided with several translations of this order, but I do not see any material differences between the versions. The following is taken from a version supplied by the father’s Italian lawyer:

“The appeal is inadmissible.

Apart from the binding observation that [the issue relating to] jurisdiction must be resolved by the Court of First Instance by final order, the Court finds that the conditions for overturning the decision by the Family Court of Turin have not been met.

In fact, for a long time and by agreement between the parties, the issue concerning custody and parental responsibility over the minor daughter has been pending before the English courts which, by agreement between the parties, issued interim measures on 17 October 2016. Furthermore, the jurisdiction of the English court was unequivocally accepted by the parties before Judge Willans at the hearing on 9 January 2017.

Lastly, the child has been living in London for a long time (since 2012) and resides in the UK with her mother and therefore, in the best interests of the child pursuant to articles 12 and 13 of [Brussels IIA] the courts where the child resides have jurisdiction.

In a situation in which the custody of the child by the English courts has already been adjudicated, it is believed that it is not within the jurisdiction of the Italian courts to issue interim measures regarding parental responsibility of the child or decisions regarding the maintenance of the child.”

At the directions hearing on 24 May, given the dispute between the parties at that stage as to what had happened in Italy since the hearing before me in January, I directed the parties to file and serve evidence, in the form of witness statements and supporting evidence, from their respective Italian lawyers in relation to events which had occurred in Italy since 26 January 2018, and listed the applications for permission to appeal for further argument on 6 July. The wife did not file a statement from her Italian lawyer but instead, on 5 June 2018, sent to the Family Division Appeals Office a letter asking the court to make certain orders and enclosing a number of documents, including a translation of the order of the Court of Appeal in Turin dated 9 May 2018. On 14 June, she sent a further letter in which she recited the decisions of the Court of Turin and stated that, in view of the clarity of the documents from that court, she believed that there was no need for any expert evidence. On the same date, the husband filed a statement from his Italian lawyer (Signor Gabriele Giambrone) setting out his account of the proceedings before the Italian court, to which was exhibited another translation of the order of 12 February 2018 and also a further translation of the appeal ruling delivered on 9 May 2018.

In his statement, Signor Giambrone stated that the first phase of Italian judicial separation proceedings, known as the “Presidential Phase”, involves a preliminary hearing and investigation leading to an order authorising the parties to separate, and consideration of urgent and interim measures. After the Presidential Phase, the case is transferred to a trial judge who will deal with the matter as any contested civil claim. The final order in separation or divorce proceedings is made by a panel of three judges, known as “the Collegio”. In this case, the Presidential Phase concluded with the order of Judge Giannone in February 2018 and the appeal therefrom which led to the order of 9 May 2018. Signor Giambrone points out that both the order of Judge Giannone dated 12 February 2018 and the order of the Turin Appeal court dated 9 May 2018 refer to the fact that the final decision as to jurisdiction rests with the Collegio. He states that the parties’ respective positions remain the same - the husband, relying on the “principle of prorogation” in Article 12 of Brussels IIA, contending that the Italian court has jurisdiction on all matters as a result of the wife’s express acceptance of that jurisdiction is recorded in the order dated 22 May 2017 and 30 August 2017, whereas the wife, relying on the “principle of proximity” contends that the Italian court should cede jurisdiction in respect of matters related to parental responsibility, including child maintenance, to the English court on the basis that I is habitually resident in London. Signor Giambrone contends that whether the principle of prorogation or the principle of proximity should take precedence is not a matter for this court as it is a live issue to be determined by the Italian court in due course.

Signor Giambrone also draws attention to the fact that, following the Turin appeal court decision on 9 May 2018, his client, the husband, has filed a further statement in the Italian separation proceedings seeking exclusive custody over I and an order that she should mainly reside with him. In response, whilst continuing to contest the Italian court’s jurisdiction, the wife has responded by asking the court, in the alternative, to order that she should have sole custody. Signor Giambrone contends that the position adopted by both parties before the Italian court is therefore relevant to this appeal. In addition, he points out that the Italian trial judge has wide powers to make orders in relation to the assignment of the former matrimonial home and can order that the child shall live at that property with the custodial parent. He adds that there is no specific statutory provision or case law in Italy which prevents the judge making orders in respect of the matrimonial home located overseas. He therefore contends that this is a further reason for staying the English ToLATA proceedings. He concludes by inviting the court “for the sake of clarity” to set aside all interim orders and judgments made within the Schedule 1 and the ToLATA proceedings.

The further appeal hearing duly took place on 6 July 2018, after which I again reserved judgment.

Jurisdiction within the EU is governed by the EU’s regulations. In cases involving matrimonial matters (divorce, legal separation etc) and in matters of parental responsibility, jurisdiction is governed by Council Regulation (EC) No 2201/2003 (“Brussels IIA”). In matters relating to maintenance obligations, jurisdiction is governed by Council Regulation (EC) No 4/2009 (“the Maintenance Regulation”). Jurisdiction in all other civil and commercial matters is governed by Council Regulation (EC) No 1215/2012 (“Brussels I Recast”), subject to exceptions set out in Article 1.

Brussels IIA

Jurisdiction in matters relating to divorce and legal separation, and to the attribution, exercise, delegation, restriction or termination of parental responsibility, is governed Brussels IIA.

Amongst the Recitals to the Regulation are the following:

“(5)

In order to ensure equality for all children, this Regulation covers all decisions on parental responsibility, including measures for the protection of the child, independently of any link with a matrimonial proceeding.

(6)

Since the application of the rules on parental responsibility often arises in the context of matrimonial proceedings, it is more appropriate to have a single instrument for matters of divorce and parental responsibility.

…

(12)

The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means the jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.”

Article 1 identifies the matters coming within the parental responsibility jurisdiction governed by the Regulation as including, inter alia, rights of custody and rights of access but excluding, inter alia, maintenance obligations.

Article 8, headed “General jurisdiction” provides:

“(1)

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.

(2)

Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.”

Articles 9 and 10 are not relevant to this case. Article 12, headed “Prorogation of jurisdiction”, provides inter alia as follows:

“(1)

The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where:

(a)

at least one of the spouses has parental responsibility in relation to the child; and

(b)

the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child.

(2)

The jurisdiction conferred in paragraph (1) shall cease as soon as

(a)

the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final;

(b)

in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgment in these proceedings has become final;

(c)

the proceedings referred to in (a) and (b) have come to an end for another reason.

(3)

The courts of a Member State shall also have jurisdiction in relation to parental responsibility proceedings other than those referred to in paragraph (1) where

(a)

the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State; and

(b)

the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.”

Article 19, headed “Lis pendens and dependent actions”, provides:

“(1)

Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

(2)

Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action brought before courts of different Member States, the court second seised shall of its own motion stage proceedings until such time as the jurisdiction of the court first seised is established.

(3)

Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court. In that case, the party brought the relevant action before the court second seised may bring that action before the court first seised.”

Article 20, headed “Provisional, including protective, measures”, provides under paragraph 1:

“In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.”

Chapter III of the Regulation contains provisions concerning the recognition and enforcement in one Member State of a judgment given in another Member State, including, in Article 23, grounds on which such a judgment relating to parental responsibility shall not be recognised. But the Regulation also contains restrictions on the powers of the receiving court. Article 24 provides:

“The jurisdiction of the court of the Member State of origin may not be reviewed …”

In addition, Article 26 provides:

“Under no circumstances may a judgment be reviewed as to substance.”

The Maintenance Regulation

Jurisdiction in matters relating to maintenance obligation is governed by the Maintenance Regulation, which applies to all member states of the European Union (save for minor exceptions which do not apply to this case) and came into force in the UK on 18 June 2011. The following articles in the Maintenance Regulation are relevant to this case.

Article 1(1) provides:

“This regulation shall apply to maintenance obligations arising from a family relationship, parentage, marriage or affinity.”

Article 3 provides:

“In matters relating to maintenance obligations in Member States, jurisdiction shall 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.”

In the case of the UK, the concept of “domicile” is substituted for “nationality” in paragraphs (c) and (d) of Article 3.

Article 4 contains provisions enabling parties to choose jurisdiction in certain circumstances, but Article 2(3) provides that this article “shall not apply to a dispute relating to maintenance obligation towards a child under the age of 18”.

Article 12 provides:

“(1)

Where proceedings involving the same cause 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 stage 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 14, headed “Provisional, including predictive, measures”, provides:

“Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.”

Brussels I Recast

Subject to exceptions set out in Article 1, jurisdiction in all other civil and commercial matters is governed by Council Regulation (EC) No 1215/2012 (“Brussels I Recast”). Amongst the exceptions, Article 1(2) provides that the Regulation does not apply to rights in property arising out of a matrimonial relationship or maintenance obligations arising from a family relationship, parentage, marriage or affinity.

Article 24 (1) of Brussels I Recast provides that, in proceedings which have as their object rights in rem in immovable property, the courts of the Member State in which the property is situated shall have exclusive jurisdiction.

In section 7 of the regulation, headed “Prorogation of jurisdiction”, Article 25 provides, inter alia:

“If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. The agreement conferring jurisdiction shall either be (a) in writing or evidenced in writing; [or] (b) in a form which accords with practices which the parties have established between themselves.”

Article 29 provides inter alia:

Article 30 provides, inter alia:

“Seising”

All three regulations – that is to say Brussels IIA (in Article 16), Maintenance Regulation (in Article 9) and Brussels I Recast (in Article 32(1)) - include substantially the same provisions as to “seising of a court”. These provide that a court shall be deemed to be seised:

“(a)

at the time of the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant [or claimant] has not subsequently failed to take the steps he was required to take to have service effected on the respondent [or defendant]; or

(b)

if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant [or claimant] has not subsequently failed to take the steps he was required to take to have the document lodged with the court.”

I consider the relevant case law under the following three headings: (a) cases on seisin and jurisdiction, (b) case law on Article 3 of the Maintenance Regulation and (c) cases on the ToLATA jurisdiction.

Cases on seisin and jurisdiction

In Wermuth v Wermuth (No.2) [2003] EWCA Civ 50 (a case decided under the original Brussels II regulation), a husband issued divorce proceedings in Germany shortly before his wife issued divorce proceedings in England. Before the German court has considered the question whether it was first seised under the regulation, a judge in the English court made an order requiring the husband to pay maintenance pending suit. In allowing the husband’s appeal, the Court of Appeal held that an order for the payment of maintenance pending suit was not a protective or provisional measure under Article 12 of Brussels II (the predecessor of article 20 under Brussels IIA). At paragraph 34 of his judgment, Thorpe LJ stated:

“Once another jurisdiction is demonstrated to be apparently first seised, this jurisdiction must defer, by holding itself in waiting in case that apparent priority should be disproved or declined.”

In Moore v Moore [2007] 2 FLR 339 (not cited by counsel at either hearing before me), a wife’s application for financial remedies under Part III of the 1984 Act was filed at the point when the husband’s appeal against a ruling by a Spanish court that it had no jurisdiction to entertain his financial claims was still outstanding. The judge at first instance granted the wife leave, holding that the husband’s application in Spain fell outside the Brussels I regulation so that the lis pendens provisions in Article 27 of that regulation (which were in identical terms to those in Article 29 of the subsequent Recast regulation set out above) did not apply. The Court of Appeal upheld the judge’s decision. In giving the judgment of the court, Thorpe LJ made the following observations (at paragraphs 102 – 103):

“102.

In view of our decision that … Brussels I is not engaged, it is not necessary to decide whether Article 27 of Brussels I applies where the court first seised has declared that it is without jurisdiction, but an appeal is pending. There are deciding cases on the situation where the decision of the court first seised that it has jurisdiction is itself under appeal …. In such a case it is clear that the court seised second should not exercise jurisdiction.

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 …. It is true that a judgment for the purposes of Brussels I is final even if an appeal is pending …. 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 to be clear 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.”

As is clear from paragraph 102 of Thorpe LJ’s judgment, the observations in paragraph 103 were obiter, but they have seemingly been endorsed in a very recent decision of the Court of Appeal, decided a few days after the last hearing before me in this case in July. Re M (BIIA Article 19; Court First Seised) [2018] EWCA Civ 1637 concerned a Polish mother and Hungarian father with two children who lived in England until 2016 when their marriage broke down. On 19 May 2016, the mother took the children to Poland and on 2 June 2016, started custody proceedings in a court in that country. On 29 June, while those proceedings were still pending, the father removed the children back to England, and subsequently on 4 July, at a hearing without notice to the mother, obtained a child arrangements order and a prohibited steps order from the Family Court in Brighton. On 14 July, the Polish court declined jurisdiction on the basis that the children were habitually resident in England. At the return hearing of the father’s application in Brighton on 18 July, the mother informed the court that proceedings in Poland were pending, but not that her application had been dismissed. The English court stayed its proceedings, making provisional orders preventing the children being removed from the jurisdiction, save for the purposes of a court hearing. On 30 July, the mother removed the children to Poland (ostensibly for the purposes of a court hearing), where they have remained ever since. On 1 August, the mother applied to the Polish court to review its decision of 14 July and assume jurisdiction. On 5 August, the Polish court granted her application, set aside the earlier order and accepted jurisdiction. Subsequently, an application by the father under the Hague Child Abduction Convention was dismissed by the Polish court which held inter alia that the children were not habitually resident in England on the date of their removal by the mother.

In March 2017, the father applied for the stay of his English Children Act proceedings to be lifted. In June 2017, the Polish appeal court upheld the dismissal of the father’s child abduction application. The father’s application for the lifting of the stay of the English proceedings came before Mostyn J who held on 14 November 2017 that the English court had exclusive jurisdiction and ordered the mother to return the children to this country. In his judgment, Mostyn J held inter alia that the children had been habitually resident in England on 2 June and 4 July 2016 and that the decision of the Polish court dated 14 July 2016 that the children were then habitually resident in England was correct. He further held that the mother’s application to the Polish court dated 1 August 2016 was not an appeal but a new application which should have been stayed by the Polish court pursuant to Article 19(2) of Brussels IIA. Having reviewed the evidence, he declared that the decision of the Polish court in December 2016 in relation to habitual residence was incorrect and that there was nothing in the judgment of the Polish appeal court in June 2017 “explaining how it could rationally have been accepted that at the relevant time the children were habitually resident in Poland”. In his judgement, it followed that, although the Polish court had been first seised on 2 June 2016, it lost that seisin when the proceedings were not served on the father and in any event by 14 July 2016, when the mother’s application was dismissed. It re-acquired seisin on 1 August 2016 but that seisin was subservient to the seisin by then established in the English court on 4 July 2016. Accordingly, the Family Court in England had exclusive jurisdiction to determine the welfare proceedings upon the basis of Article 8. The mother, who had not attended the hearing before Mostyn J, applied to the judge to set aside his decision but her application was refused.

On 18 July 2018, the Court of Appeal allowed the mother’s appeal from Mostyn J’s order on a number of grounds, of which it is only necessary to consider one set out in the lead judgment of Peter Jackson LJ dealing with seisin and jurisdiction. Having cited paragraph 103 of the judgment in Moore, he continued (at paragraphs 63 to 64):

“63.

…… For my part, I can see no reason why the decision of this court in Moore should not apply equally, or indeed a fortiori (with stronger reason), to a regularly-constituted application to set aside as it does to an appeal ….

64.

The judge’s analysis of the issue of seisin was accompanied by his own evaluation that the children had ‘obviously’ been habitually resident in England, both on 2 June and 4 July [2016]. This in turn led him to characterise [the Polish judge’s] first assessment as correct and the second assessment as incorrect. In my view, these remarks cannot be regarded as observational or incidental, but were integral to the judge’s critique of the approach of the Polish court and to his conclusion that exclusive jurisdiction lay with the English court. Whatever its merits, the critique amounted in a review of jurisdiction and a substance that was impermissible by virtue of Articles 24 and 26.”

Case law on Article 3 of the Maintenance Regulation

In A v B (Case C-184/14) [2015] 2 FLR 637, the CJEU gave a preliminary ruling on the interpretation of Article 3 of the Maintenance Regulation. The case concerned an Italian couple who had lived in England during their marriage, where their two children were born. When the marriage broke down, the husband started proceedings in the Italian court seeking a declaration of separation and shared custody of the children, on the basis that they resided with the wife. Within those proceedings, he proposed to pay a sum towards the children’s education and healthcare. The wife contested the jurisdiction of the Italian court on issues of parental responsibility on the grounds that they were habitually resident in England and that the courts of this country therefore had jurisdiction in respect of such issues under Article 8 of Council Regulation (EC) 2201/2003 (“Brussels IIA”). The Italian court held that it had jurisdiction to entertain the legal separation proceedings but not in respect of matters of parental responsibility. It further held that, whilst it had jurisdiction to entertain proceedings concerning spousal maintenance on the ground that it was a matter ancillary to status proceedings, it lacked jurisdiction to rule on the children’s maintenance as that matter was ancillary to the proceedings concerning parental responsibility. The husband appealed the judgment and the Italian appeal court sought a preliminary ruling from the CJEU. That court held that Article 3(c) and (d) of the Maintenance Regulation must be interpreted as meaning that, where a court of a Member State was seised of proceedings involving the separation or dissolution of a marriage between the parents of a minor child, and a court of another Member State was seised of proceedings in matters of parental responsibility involving the same child, an application relating to maintenance concerning that child was ancillary only to the proceedings concerning parental responsibility, within the meaning of Article 3 (d) of that Regulation. The following passages from the judgment are relevant:

“43.

… the court with jurisdiction to entertain proceedings concerning parental responsibility, as defined in Article 2(7) of Brussels IIA, is in the best position to evaluate in concreto the issues involved in the application relating to child maintenance, to set the amount of that maintenance intended to contribute to the child’s maintenance and education costs, by adapting it, according to (i) the type of custody (either joint or sole) ordered; (ii) access rights and the duration of those rights; and (iii) other factual elements relating to the exercise of parental responsibility brought before it.

44.

The interests of maintenance creditors are therefore also guaranteed, in that, first, the minor child will easily be able to obtain a decision relating to his maintenance claim from the court with the best knowledge of the key elements for assessing his claim.

45.

Secondly, the court with jurisdiction to entertain the application concerning such a maintenance claim is designated in accordance with the rules on jurisdiction under EU law laid down by Brussels IIA in order to determine the court that can be validly seised of proceedings concerning parental responsibility, which are shaped … in the light of the best interests of the child.

46.

It is vital to take into account, in interpreting the rules on jurisdiction laid down by Article 3(c) and (d) of the Maintenance Regulation 2009, the best interests of the child. That is true all the more given that the implementation of the Maintenance Regulation 2009 must occur in accordance with Article 24(2) of the Charter of Fundamental Rights of the European Union, according to which, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

47.

It follows, therefore, from the wording, the objectives pursued, and the context of Articles 3(c) and (d) of the Maintenance Regulation 2009, that, where two courts are seised of proceedings, one involving proceedings concerning the separation or dissolution of the marital link between married parents of minor children and the other involving proceedings involving parental responsibility for those children, an application for maintenance in respect of those children cannot be regarded as ancillary both to the proceedings concerning parental responsibility, within the meaning of Article 3(d) of that Regulation, and to the proceedings concerning the status of a person, within the meaning of Article 3(c) of that Regulation. They may be regarded as ancillary only to the proceedings in matters of parental responsibility.”

Cases on the ToLATA jurisdiction

In Webb v Webb C-294/92 [1994] 3 All ER 911, the plaintiff father purchased an apartment in Antibes in 1971 in the name of the defendant, his son, to whom the legal ownership of the property was also conveyed. In 1990, the father bought proceedings against the son in the High Court in England seeking a declaration that the son held the property and its contents under an express and/or resulting trust on behalf of the father, and an order directing the son to execute the necessary documents to vest the legal ownership of the property in the father. The son applied for the action to be dismissed on the ground that the court had no jurisdiction to entertain the proceedings since they had as their object the acquisition of rights in rem in immovable property in France, and, under Article 16(1) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (now re-enacted verbatim in Article 24(1) of Brussels I Recast), the courts of the country in which the property was situated had exclusive jurisdiction. The Court of Appeal referred the matter to the Court of Justice of the European Communities for a preliminary ruling on the interpretation of the article, the question being redefined by the Court of Justice (at paragraph 11 of its judgment) as whether an action for a declaration that the person holds immovable property as trustee and for an order requiring that person to execute such documents as should be required to vest the legal ownership in the plaintiff constitutes an action in rem within the meaning of article 16(1) of the Convention. The Court of Justice answers the question in the negative. The reasons are set out at paragraphs 15 to 18 of the judgment:

“15.

The aim of the proceedings before the national court is to obtain a declaration that the son holds the flat for the exclusive benefit of the father and that in that capacity he is under a duty to execute the document as necessary to convey ownership of the flat to the father. The father does not claim that he already enjoys rights directly related to the property which are enforceable against the whole world, but seeks only to assert rights as against the son. Consequently, his action is not an action in rem within the meaning of Article 16(1) of the Convention but an action in personam.

16.

Nor are considerations relating to the proper administration of justice underlying Article 16(1) of the Convention applicable in this case.

17.

As the court has held, the conferring of exclusive jurisdiction in the matter of rights in rem in immovable property on the courts of the State in which the property is situated is justified because actions concerning rights in rem in immovable property often involve disputes frequently necessitating checks, enquiries and expert assessments which must be carried out on the spot (see the judgment in Case 73/77 Sanders v Van der Putte [1977] ECR 2383 at paragraph 13).

18.

As the father and the United Kingdom rightly point out, the immovable nature of the property held in trust and its location are irrelevant to the issue to be determined in the main proceedings which would have been the same if the dispute have concerned the flat situated in the United Kingdom or a yacht.”

In Prazic v Prazic [2006] EWCA Civ 497, the parties were married in this country and initially lived in Essex. After a few years, they sold their property in Essex and moved to France. Subsequently they purchased two flats in Notting Hill. In 2004, the husband petitioned for divorce. The wife’s subsequent divorce proceedings in England were stayed in accordance with the lis pendens provisions in Brussels IIA. The wife then bought proceedings under ToLATA seeking a declaration that she was an equal owner in equity of the Notting Hill flats and a tracing order in respect of the proceeds of sale of the Essex property. Ancillary relief proceedings were ongoing in France, but the wife sought to rely on Article 22(1) of the Brussels I Regulation (which was in identical terms to its successor, Article 24(1) of Brussels I Recast). The Court of Appeal rejected her argument, holding, following the decision in Webb, that the ToLATA proceedings did not fall within Article 22 because they were not based upon rights in rem but upon rights in personam and there was nothing in dispute which required any on the spot investigations or enquiries. The Court further held that it was self-evident that the ToLATA proceedings and the French ancillary relief proceedings were not the same causes of action but, rather, related actions pending in different Member States. As a result, the Court was not obliged to stay the proceedings under Article 22 of Brussels I but rather had a discretion to stay the proceedings under Article 28 of Brussels I (which contained provisions in identical terms to Article 30 of Brussels I Recast). On the facts of that case, the court concluded that there was a risk of irreconcilable judgments, given that the wife’s application for financial provision in France was fundamentally focused on the husband’s ownership of various properties, including the London properties, and given that the object of the ToLATA application was to achieve an equitable share.

In giving the lead judgment, Thorpe LJ made a number of observations including, at paragraph 25:

“ … I find it hard to conceive that where a married couple are engaged in contested ancillary relief proceedings, the application of a ToLATA claim by one against the other could possibly be justified. As the decision of the House of Lords in White v White makes plain, issues between a husband and wife are to be determined within the four corners of the Matrimonial Causes Act and on the application of the statutory criteria that are set out. The issue of separate proceedings to establish relatively arcane questions as to equitable entitlement between them is deprecated. I cannot see how that general proposition can be dis-applied simply because the ancillary relief proceedings have been instituted in one Member State and the parties to the proceedings are not both attached to that jurisdiction.”

At paragraph 28, he added:

“ …the whole force of developing European legislation in the family law field is to impose clear and simple rules to establish the primary jurisdiction and to ensure that once that primary jurisdiction is established it is given the fullest support in the discharge of its consequent responsibilities. We have recognised the primacy of the French jurisdiction by the stay imposed upon the divorce proceedings initiated by the wife in this jurisdiction. It would be quite inconsistent with the objectives and underlying policy of Brussels IIA were we now to say in the exercise of the discretion that it was perfectly in order for the wife to bring civil proceedings in this jurisdiction which only thinly disguise their true competitive objectives.”

In Miller-Smith v Miller-Smith [2009] EWCA Civ 1297, [2010] 1 FLR 1402, the spouses held in their joint names as trustees for themselves as tenants in common in equal shares a property worth about £12m with a mortgage debt of £7m. The husband had filed a petition for divorce which the wife was defending. The husband argued that he could not afford to meet the costs of keeping the property and applied for an order for sale under ToLATA. The wife argued that, in the light of the divorce proceedings, the husband’s application was premature. In giving the lead judgment in the Court of Appeal, Wilson LJ, as he then was, observed (at paragraph 18):

“I am clear that, confronted with an application under ToLATA between separated spouses, the court should embark upon the discretionary exercise by asking itself whether the issue raised by the application can reasonably be left to be resolved within an application for ancillary relief following divorce. It is in principle much more desirable that an issue, as here, about sale of the home should be resolved within an application for ancillary relief. For there the court will undertake a holistic examination of all aspects of the parties' finances, needs, contributions etc; will devise the fairest set of arrangements for the future housing and finances of each of them; and, to that end, will provide for the transfer of capital, as well perhaps as for payment of future income, from one to the other. By an order under ToLATA, on the other hand, the court lays down only one piece of the jigsaw, namely that the home be sold, without its being able to survey the whole picture by laying down the others. So at this threshold stage of the enquiry into an application under ToLATA between spouses the court will, in particular, have regard to the question whether, within a time-frame tolerable in all the circumstances, the parties will become able to apply for ancillary relief. Furthermore if, at first sight, there appears to the court to be any measurable chance that, on an application for ancillary relief made within that time-frame, the respondent to the application for an order for sale under ToLATA will be able to preserve her or his occupation of the home by securing an outright transfer of ownership of it or a variation of the trust, it is hard to conceive that an order for sale would reflect a proper exercise of discretion.”

On the facts of that case, however, the Court held that the husband’s application under ToLATA had crossed the threshold stage of enquiry, given the size of outgoings and the wife’s decision to defend the divorce so that it was unlikely that any ancillary relief proceedings would be determined within a further year

In Komu v Komu (Case C-605/14) [2016] 4 WLR 26, the five parties, all domiciled in Finland, co-owned properties in Spain in unequal shares. The three claimants brought a claim in a Finnish court for an order appointing a lawyer to sell the properties and fixing a minimum price for each of them. The Finnish Supreme Court referred the matter to the CJEU for a preliminary ruling as to whether an action for the termination of co-ownership in undivided shares of immovable property by way of sale by an appointed agent constituted proceedings “which have as their object rights in rem in immovable property” within the meaning of Article 22(1) of Brussels I (the predecessor of Article 24(1) of Brussels I Recast). The CJEU concluded that such an action came within the scope of the article. Noting (at paragraph 27 of the judgment) that

“the difference between a right in rem and a right in personam is that the former, existing in corporeal property, has effect erga omnes, whereas the latter can be claimed only against the debtor”,

the CJEU held (at paragraph 29) that

“an action, designed to bring about the transfer of rights of ownership in immovable property, concerns rights in rem which have effect erga omnes and is intended to ensure that the holders of those rights can protect the powers attached to their interest.”

In addition, the transfer of the right of ownership in the properties would entail the taking into account of situations of fact and law relating to the place where the properties were situated, in particular the fact that the rights of ownership and the rights of use encumbering those rights were the subject of entries in the local land register (paragraph 31).

In Magiera v Magiera {2016] EWCA Civ 1292, a husband and wife had acquired property in England, France and Poland during the marriage, in particular a property in London purchased in their joint names in which they had never lived. The marriage broke down in 2001 and the divorce was finalised in France in 2013, with the wife receiving a lump sum as prestation compensatoire. In 2014, the wife issued an application under ToLATA seeking the sale of the London property and an order that the proceeds of sale after redemption of the mortgage be distributed between herself and the husband in equal shares. The husband’s challenge to the jurisdiction of the English court was rejected by Bodey J at first instance who held that the jurisdictional issue was determined by application of Article 22 of Brussels I (the predecessor of Article 24(1) of Brussels I Recast). Between his decision and the hearing of the appeal, the CJEU judgment in Komu was handed down. In giving the leading judgment, Black LJ (as she then was) observed (at paragraph 16) that:

“it is important to recognise that it is the European authorities not the domestic ones which ultimately govern the interpretation of Article 22.”

Having analysed the Court of Justice cases, she concluded that the decision in Komu was applicable and that the decision in Webb was distinguishable. She added that the decision in Prazic (which is, of course, a domestic authority) had little relevance since the facts were again very different and the court in that case had simply followed Webb. The key passage in Black LJ’s judgment is at paragraph 54:

“Fortified by the decision in Komu, I agree with Bodey J that the present case should be distinguished from Webb. The wife is already a joint owner of the property here, whereas the father in Webb was not. If it is appropriate to analyse what the ‘principal subject matter’ of the claim is here, it is to achieve a sale of the property, as it was in Komu …. The action could be said to involve the external relations of the trust, rather than (or at the very least, as well as) the internal relations of the trust. Reflecting the language of … Komu, I think it would be fair to describe the wife, as one of the two joint owners of the property both in law and in equity, as having ‘rights in rem which have effect erga omnes’. She is seeking to ‘protect the powers attached to [her] interest’ by [bring[ing] about a transfer of a right of ownership’ in the house by a sale of it. Moreover, viewing the matter as a whole, it is clear that ‘the considerations which underlie the first paragraph of Article 22(1)’ [of Brussels I, now Article 24(1) of Brussels I Recast] apply here, as they did in Komu.”

Schedule 1 appeal: husband’s submissions

On behalf of the husband, Mr Stewart Leech QC and Ms Julie O’Malley prepared written submissions for the hearing in January 2018 and supplemental submissions for the hearing in July. In their initial submissions, they advanced the following general propositions:

Mr Leech and Ms O’Malley submitted that the effect of Italy being seised with the matrimonial status proceedings is that the “primary jurisdiction” in all financial matters lies with the Italian court. It is not disputed that Italy is seised of issues relating to spousal maintenance. So far as I’s maintenance is concerned, Mr Leech and Ms O’Malley relied principally on the fact that Italy was first seised of the issue by virtue of the husband’s petition for legal separation and that the wife’s application under Schedule 1 was second in time. In their initial argument at the hearing in January 2018, they submitted that, under article 12 of the Maintenance Regulation, it was therefore for the Italian court to decide as to its jurisdiction and that the English court, as the court second seised, had no option but to stay the proceedings pending the Italian court’s enquiry into its jurisdiction and only assume jurisdiction in the event that the Italian court declares that it has no jurisdiction. Accordingly, they submitted that the order made by District Judge Willans on 9 January 2017 giving directions for a hearing of the application under Schedule 1 fell foul of Article 12(1) of the Maintenance Regulation and should not have been made. Similarly, the hearing before District Judge Jenkins on 22 March 2017, which is the subject of the current appeal, infringed Article 12(1). Mr Leech and Ms O’Malley point out that Article 12(1) was not cited to, nor considered by, the district judge. They submit that, had the judge been referred to that Article, he would not have made the observations quoted at paragraph 19 above.

Mr Leech and Ms O’Malley further relied on the fact that, at the hearing on 18 May 2017, the wife had abandoned her challenge to the Italian court’s jurisdiction. As recorded on the face of the order made by Judge Arisio on 22 May 2017, she seemingly abandoned her challenge to the Italian court’s jurisdiction, thereby empowering the court to rule on all issues concerning parental responsibility. It was submitted that the facts of the present case are materially different from those in A v B. In that case, the wife had immediately disputed the jurisdiction of the Italian court, whereas, in the present case, the wife had expressly accepted the jurisdiction of the Italian court by filing a counter-petition and making specific requests for child maintenance and school fees. Mr Leech and Ms O’Malley noted that the wife had apparently renewed her challenge to the Italian court’s jurisdiction at the hearing in Turin in December 2017 but, at the date of the hearing before me in January 2018, Judge Giannone had not delivered her judgment. Accordingly, it was submitted at that point that the Schedule 1 proceedings should be stayed and the appeal therefore allowed.

By the time of the adjourned hearing in July 2018, Judge Giannone had, as described above, upheld the wife’s challenge to the Italian court’s jurisdiction and her decision had been confirmed by the Italian appeal court. Mr Leech and Ms O’Malley relied, however, on the statement of Signor Giambrone, which they contended was the only admissible evidence before the court as to the Italian proceedings. They submitted that his statement makes it clear that, notwithstanding Judge Giannone’s decision and the subsequent decision of the Turin appeal court upholding that decision, the issue of jurisdiction remains pending before the Italian court so that nothing has changed since the hearing in January 2018. In oral argument, Mr Leech drew attention in particular to the fact that, subsequent to the decision of the appeal court in May 2018, the wife’s Italian lawyer in his latest submission for the trial judge and the Collegio had advanced arguments as to the question of jurisdiction on matters relating to parental responsibility and also, in the alternative, arguments as to merits of those issues.

Schedule 1 appeal: the wife’s submissions

On behalf of the wife, Ms Sally Jackson’s principal submission was that jurisdiction in respect of matters relating to parental responsibility lies with the courts of the country where the child is habitually resident, which in this case is plainly the English court, and that, following the CJEU decision in A v B, jurisdiction in respect of issues relating to child maintenance also lies with the English court.

Ms Jackson acknowledges that it has always been accepted by the wife, in both the Schedule 1 proceedings and in the ToLATA proceedings, that the judicial separation proceedings issued by the husband in Italy were brought first in time and that the Italian court therefore has jurisdiction to deal with those proceedings, which are a necessary precursor to divorce proceedings in Italy. She argued, however, that the husband’s petition for judicial separation makes clear that the Italian court will only be asked to make “provisional and urgent measures”. Ms Jackson further pointed out that, in her response to the husband’s petition, dated 29 October 2016, the wife averred that jurisdiction in respect of all matters relating to the child, including living arrangements and financial support, should lie with the English courts and not in Italy. It has never been disputed between the parties that I has, at all material times, been habitually resident in England.

The wife does not accept that, at the hearing before Judge Arisio on 18 May 2017, she abandoned her objection to the Italian court dealing with matters relating to I and thereafter accepted the jurisdiction of the Italian court to deal with all matters relating to the child. Ms Jackson submitted that the minute of the hearing demonstrates that the wife’s Italian lawyer waved his objections to the Italian court’s jurisdiction only for the purposes of urgent and interim orders, given the serious financial circumstances at that time. Ms Jackson submitted that the order made by Judge Arisio on 22 May 2017 following that hearing confirmed that the wife’s acceptance of the Italian court’s jurisdiction related only to urgent and provisional measures. She submitted that it is manifestly not the case that the wife has accepted “expressly or otherwise in an unequivocal manner” the jurisdiction of the Italian courts in relation to matters relating to parental responsibility so as to vest the Italian courts with jurisdiction under Article 12 of Brussels IIA. On the contrary, the wife has expressly objected to the Italian courts exercising jurisdiction save in respect of interim and urgent matters. Furthermore, Ms Jackson submitted that the Italian courts cannot exercise jurisdiction under Article 12 because it is manifestly not in I’s interests for matters relating to parental responsibility to be determined in Italy, given that (a) I has lived in England since 2010 and is habitually resident here; (b) all of her education has taken place in this country; (c) there have been extensive proceedings under the Children Act relating to child arrangements, including a fact-finding hearing; (d) there has been an assessment by a Cafcass officer who has interviewed I; and (e) litigating in Italy would involve considerable cost and inconvenience for the mother who cannot afford either the expense or, as I’s primary carer, the time.

Ms Jackson relied on the fact that there have already been lengthy contested proceedings in this jurisdiction under the Children Act 1989 in which the husband has expressly accepted the jurisdiction of the court to make orders under s.8 and has indeed invited the court to make orders himself under that section. She submitted that this is entirely consistent with the basis of jurisdiction in matters of parental responsibility under Article 8 of Brussels IIA which provides that such jurisdiction lies with the courts of the Member State where the child is habitually resident. In addition, the husband’s acceptance of the jurisdiction of the English court has been unequivocal and furthermore plainly in the best interests of the child.

Ms Jackson submitted that there is no scope for any stay of the Schedule 1 proceedings on grounds of lis pendens. There is no question of a stay of the s.8 proceedings as a result of the prior filing of the judicial separation petition because the separation proceedings cannot be characterised as “proceedings relating to parental responsibility relating to the same child and involving the same cause of action” within the terms of Article 19(2) of BIIA. The s.8 proceedings are therefore continuing and, following the CJEU decision in A v B, jurisdiction to make orders in respect of I’s financial support lies with the English court.

In her supplemental submissions for the adjourned hearing before me in July 2018, Ms Jackson relied on the unequivocal terms of Judge Giannone’s order and the subsequent order of the Turin appeal court in dismissing the husband’s appeal from Judge Giannone’s order. She submitted that it was now clear that, insofar as the Italian court had been first seised of any issues regarding parental responsibility, and an ancillary claim for financial support for the child, it had definitively declined jurisdiction. She contended that there was no significance in the way in which the wife’s Italian lawyer had drafted his latest argument for the Collegio. In those circumstances, the English court plainly had jurisdiction to consider the application under Schedule 1.

The ToLATA appeal: husband’s submissions

In respect of the husband’s appeal against Judge Parfitt’s refusal to stay the ToLATA proceedings, Mr Leech and Ms O’Malley advanced a number of submissions.

First, they contended that the whole hearing before Judge Parfitt proceeded on a false premise, namely that the English court had exclusive jurisdiction pursuant to Article 24 of Brussels I Recast. They submitted that it is arguable that the wife’s application falls outside the scope of the regulation completely because it arises out of the marital relationship. In any event, they contended that the real issue in the ToLATA applications is the extent of the beneficial interests in the property. It is the husband’s case that, notwithstanding the declarations of trust in the TR1, the beneficial interest in the property belongs to him. They therefore submit that in reality the ToLATA proceedings concern rights in personam, not rights in rem.

Secondly, they rely on the decision in Prazic (supra) and in particular the dicta of Thorpe LJ at paragraph 25, quoted above. There is no reference to Prazic in Judge Parfitt’s judgment, although Mr Leech drew attention to the reference to a second, unnamed, case being cited which, he inferred, was likely to have been Prazic.

Thirdly, Mr Leech and Ms O’Malley submit that the judge proceeded on what they describe as a grave error of law, namely that the English court’s powers to make orders under Part III of the Matrimonial and Family Proceedings Act 1984 would not be exerciseable until such time as there had been a divorce in Italy. S.12 of the 1984 Act provides that the court’s powers under Part III are exerciseable on the parties being legally separated by means of judicial or other proceedings in an overseas country.

Fourthly, they submitted that, in deciding whether or not exercise his discretionary power to stay the application, the judge erred by weighing in the balance an inference that the husband was pursuing his application for a stay for “the purposes of perceived procedural advantage”. They submitted that the judge identified no evidential basis to justify such an inference.

Fifth, Mr Leech and Ms O’Malley submit that the judge appears to have given no consideration at all to what was happening in Italy. There was no admissible evidence as to the powers available to the Italian court or the nature and scope of the financial proceedings there. The concession made by counsel who appeared for the husband before Judge Parfitt was erroneous. In circumstances where it should have been clear that Italy was the court of primary jurisdiction, the English court ought to have made enquiries as to the Italian proceedings before reaching a conclusion on the application for a stay. The Italian property proceedings in Italy are well advanced. A principal issue in those proceedings is the extent of the wife’s interest, if any, in the funds utilised to purchase the land and property and whether or not there was any intention to gift an interest to her. Any findings made by the English court in the ToLATA proceedings will have no effect on the issue in the Italian proceedings which will determine the parties’ respective interests. It is submitted that allowing the ToLATA claim to proceed runs the real risk of incompatible rulings as to the beneficial interests in the London property and that the ToLATA claim is a costly and pointless exercise.

In the circumstances, it is submitted that the judge’s decision was wrong and cannot stand and, further, that this court should exercise its discretion by imposing a stay of the ToLATA proceedings.

The ToLATA appeal: wife’s submissions

On behalf of the wife, Ms Jackson submitted that jurisdiction in respect of proceedings concerning ownership of the London property is determined by Article 24 of Brussels 1 Recast, since the proceedings “have as their object rights in rem in immovable property”. She contended that the property rights at issue in the ToLATA proceedings are plainly not rights “arising out of a matrimonial relationship” so as to place the proceedings outside the Recast Regulation. The parties’ proprietary rights in the London property arise out of their joint purchase and the declaration of trust in the TR1 document that the beneficial interests of the property were to be held by the parties as joint tenants. Ms Jackson relied on the decisions in Magiera and Komu as authority for her submission that the wife’s ToLATA claim concerns rights in rem in immovable property, arguing that the facts of the present case are on all fours with the facts in Magiera but distinguishable from those in Prazic. She submitted that the argument advanced on behalf of the husband that the real issue at the heart of the ToLATA claim is the extent of the wife’s beneficial interest in the London property is inaccurate. The TR1 document recording the wife’s 50% beneficial interest in the property is an express declaration of trust which is conclusive as to the parties’ beneficial interests, absent fraud or mistake: Goodman v Gallant [1986] 1 FLR 513, Pankhania v Chandegra [2012] EWCA Civ 1438. If, as seems likely, the husband asserts that the declaration of a beneficial joint tenancy was a mistake, that issue can be easily resolved within the ToLATA proceedings.

Ms Jackson pointed out that, in his application to the Italian court for declaratory relief in respect of the assets inherited from his uncle, the husband has not sought any order in respect of the former matrimonial home in London, although he referred in documents filed with that court to the property having been purchased using funds received from the inheritance. When the wife applied to the Italian court for a stay of the husband’s application for declaratory relief in so far as it related to the London property which was the subject of the ToLATA claim, the husband opposed the application on the grounds that the two sets of proceedings were dealing with different subject matters and that the Italian proceedings concerned the determination of the ownership of property not including the London property. It was expressly conceded by the husband through the Italian lawyers that, regarding the ownership of the share of the London property, jurisdiction was held exclusively by the English court. Having considered submissions at the hearing on 1 June 2017, Judge Perego, as described above at paragraph 28, refused the application for a stay, holding that the issues before the Italian court differed from those in the ToLATA proceedings in England, noting that husband had clarified his case in a memorandum filed for that hearing. Ms Jackson submitted that it is emphatically clear from the minute of the proceedings in Turin on 1 June 2017 that the Italian court has declined to exercise any jurisdiction in respect of the London property and that the husband has expressly stated in the course of those proceedings that jurisdiction to deal with the issues of the ownership of the London property lies exclusively with the English courts. Ms Jackson submitted that in those circumstances the fact that the Italian property proceedings are well advanced is irrelevant and that there is no prospect of irreconcilable judgments arising in respect of the London property.

Ms Jackson submitted that the concession made on behalf of the husband before Judge Parfitt that the Italian court did not have power to make any orders in relation to the London property was well-founded and in line with the concession in documents filed in the Italian property proceedings and confirmed a few days later in the hearing before Judge Perego. The ambit of the husband’s argument before Judge Parfitt was therefore limited to a submission that he should exercise his discretion to grant a stay on the basis that the wife might at a later date have recourse to an application under Part III of the 1984 Act. Ms Jackson submitted that the judge’s decision that it seemed preferable to deal with the issue of the property sooner rather than later was entirely within his discretion, and not undermined by his error in stating that an application under Part III would not be open to the wife before the grant of a decree of divorce rather than a decree of separation. She submitted that the judge’s reasoning was understandable, given the position on the ground with a wife and I living in rented accommodation which consumed the majority of the wife’s monthly income. There was a clear urgency mediating firmly against the granting of a stay simply on the basis that the wife might, at some indeterminate point in the future, be able to make a claim in the English courts. Furthermore, given the potential for a claim by the wife under Part III to exceed the value of her current claim under ToLATA, it was plainly open to the judge to conclude that the husband’s motivation for seeking a stay of the ToLATA claim was to achieve a procedural advantage.

In supplemental submissions for the adjourned hearing before me in July 2018, Ms Jackson contended that assertions by Signor Giambrone in his statement filed on 14 June 2018 to the effect that the court in the Italian separation proceedings had jurisdiction to make orders in relation to the London property were entirely false and a further opportunistic argument advanced disingenuously to achieve a procedural advantage.

Within the EU, jurisdictional rules are governed by the EU’s Regulations. Article 19(2) of Brussels IIA clearly establishes that the court second seised shall of its own motion stay proceedings until such time as the jurisdiction of the court first seised is established. In this case, however, Judge Giannone has clearly ruled that the Italian court has no jurisdiction over matters of parental responsibility and her decision has been upheld by the appeal court in Turin. The position at present, therefore, is that the Italian court has declined jurisdiction to make orders in respect of parental responsibility.

Accordingly, in my judgement, the English court, as the court second seised, is no longer obliged to stay its proceedings or, to use Mr Leech’s phrase, hold itself in abeyance. I do not regard the fact that the Italian Collegio at the final hearing will give an ultimate ruling on the question of jurisdiction as requiring the English court to stay proceedings any longer. The position is, in my judgement, markedly different from that which existed in Re M. The Italian court has declined jurisdiction and, if the English court were still required to stay proceedings, it would mean that no forum would be available for the parties to determine matters of parental responsibility or child maintenance. The courts must adopt a sensible and pragmatic approach to jurisdictional rules. A party cannot be without a remedy. The Italian court has declined jurisdiction in unequivocal terms. Accordingly, this court is entitled to exercise jurisdiction.

Furthermore, whilst accepting that it would not be open to this court, in the context of proceedings to recognise and enforce an order, to review a decision as to jurisdiction under Article 24 of Brussels IIA, I do not consider that I am prevented from observing, respectfully, that Judge Giannone and the Italian appeal court were entirely correct in their view that jurisdiction in respect of matters relating to parental responsibility rests with the English court. I is habitually resident in this country. The issue of parental responsibility has been before the English court for a prolonged period. Until November 2017, the husband did not object to the English court’s jurisdiction. On the contrary, he expressly accepted it before Judge Willans on 9 January 2017. He participated fully in the proceedings, taking an active part in the fact-finding hearing and co-operating, at least initially, with the consequential directions designed to address the findings made against him. In her judgment dated 12 February 2018, Judge Giannone stated that the jurisdiction had been expressly accepted by the husband at the hearing in West London on 17 October 2016. As stated above, I can see no recital recording such an express acceptance in the order made on that occasion, although it can plainly be inferred from the rest of the order. As recorded by the Italian appeal court in its order dated 9 May 2018, however, the subsequent order of the West London court dated January 2017 does contain an express declaration that the parties agreed that the English court had jurisdiction in respect of all matters about where the child should live and what contact she should have with her father.

It is difficult to see any basis upon which any Italian court could possibly conclude that jurisdiction was prorogued under Article 12 of Brussels IIA. A key requirement is that jurisdiction must have been accepted “in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised”. As set out above at paragraph 68, all three EU Regulations under consideration contain identical provisions as to the date of “seising” – in effect, when the application originating the proceedings was filed. In this case, the jurisdiction of the Italian court to make orders concerning parental responsibility was not accepted on an unequivocal basis by both parties at the time the Italian court was seised. On the contrary, all the evidence indicates that the wife did not accept that jurisdiction. In her response to the husband’s separation petition, she expressly challenged the jurisdiction of the Italian court. Furthermore, she had by that stage already issued proceedings in the West London Family Court under s.8 of the Children Act. The fact that, at one stage, she invited the court to accept jurisdiction for the purpose of making urgent orders manifestly does not satisfy the requirements of Article 12 that the jurisdiction of the court be accepted expressly or otherwise in unequivocal manner at the time the court is seised. In any event, Article 12(1) further requires that the prorogation of jurisdiction must be in the superior interests of the child. I respectfully agree with the analysis of the Italian appeal court that it is in the best interests of the child for the English courts to continue to exercise jurisdiction in respect of parental responsibility.

In the circumstances, jurisdiction in respect of responsibility matters lies with the English court.

It follows, therefore, that, applying the CJEU decision in A v B, jurisdiction in respect of child maintenance also lies with English court. Where there are proceedings in one jurisdiction in respect of the status of the parents, and proceedings in another jurisdiction in respect of parental responsibility, an application relating to the maintenance the child should be regarded as only ancillary to the latter proceedings. I see no material difference between the facts of this case and those in A v B so as to justify departing from the very clear guidance given by the CJEU in that case. Although it may have been irregular for the court to receive the report from Mrs Bailey-Harris in the way which emerges from the transcript of the hearing before DJ Jenkins, I do not consider that this gives rise to any ground of appeal. The legal principles established in A v B are clearly applicable throughout the EU.

Mr Leech and Ms O’Malley have raised a number of arguments in support of the husband’s appeal against Judge Parfitt’s refusal of a stay of the ToLATA proceedings which I have carefully considered. I am not, however, persuaded that any of them justify the conclusion that the judge’s decision was wrong.

First, I do not accept the submission, which was, in truth, no more than a suggestion by Mr Leech, that the rights in the London property arise out of a matrimonial relationship so as to take this case outside the Brussels I Recast Regulation. The fact that the husband and wife were married is an important part of the context in which the property was purchased, since the purpose for its acquisition was to provide a family home for the parties and their daughter. But the rights in the property arise out of the express declaration of trust set out in the TR1 form, not from the matrimonial relationship.

Secondly, it is now clear, following the decision of the CJEU in Komu and the decision of the Court of Appeal in Magiera that, where the principal subject matter of a claim is to achieve a sale of the property, it involves, to adopt the words of Black LJ in Magiera, “the external relations of the trust, rather than (or at the very least, as well as) the internal relations of the trust” and rights in rem which have effect ergo omnes. As in Magiera, the wife in the present case is seeking to “protect the powers attached to her interest by bringing about a transfer of a right of ownership in the house by a sale of it”. In those circumstances, jurisdiction plainly lies under Article 24 (1) of Brussels I Recast with the courts of England, being the country where the property is situated.

Thirdly, whilst it is correct that there are related proceedings in Italy concerning the source of an interest in the funds used to purchase the property, and that as a result the English court had a discretionary power to stay the proceedings under Article 30 of Brussels I Recast, it is notable that Judge Parfitt was not asked to stay the proceedings on that ground. On the contrary, it was expressly conceded before him by the husband’s representative that a claim in respect of the property was exclusively within the jurisdiction of the English court. Mr Leech’s submission that this concession was wrong carries little weight, not least because the concession was in line with the submission made by the husband’s Italian lawyer in the Italian property proceedings at around the same time.

Fourth, a careful analysis of the ruling of Judge Perego on 1 June 2017 demonstrates clearly that it has been expressly accepted by the Italian judge that issues relating to the London property fall outside the ambit of the Italian property proceedings.

Fifth, whilst it was plainly open to Judge Parfitt to decide to stay the ToLATA proceedings pending any claim by the wife under Part III of the 1984 Act, I do not consider that his refusal to do so falls outside the ambit of his discretion. I do not accept the submission that his decision contravenes the policy underpinning the Brussels Regulations. Equally, I do not consider that his apparent failure to realise that the Part III claim could be brought after the decree of separation in Italy undermines the validity of his decision. As in Miller-Smith, there were cogent arguments for avoiding delays. Furthermore, in my judgement, it was manifestly open to the judge to conclude, as he did, that the husband’s application was designed to achieve a technical advantage.

Finally, I do not consider that the arguments and opinions expressed by Signor Giambrone in his statement filed in June 2018 add any weight to the husband’s arguments in support of this appeal. It is, to my mind, fanciful to think the Italian court may require the London property to be transferred to the husband to facilitate child arrangements. For the reasons set out above, there is no prospect of an Italian court exercising jurisdiction in respect of the child. In any event, if the husband wishes to argue that the property should be retained for family purposes, it will be open to him to put forward such an argument in opposing the wife’s application for sale within the ToLATA proceedings.

The appeal against the decision of District Judge Jenkins dated 22 March 2017 is therefore dismissed.

During the period while I have been considering my decision, the court has received emails direct from the wife asserting that the husband is in breach of his undertaking given to this court on 10 November 2017 to maintain payment of the school fees pending determination of this appeal. I am in no position to decide whether she is correct in that assertion. But for that reason, and others, it is plainly desirable that the issue returns to court as soon as possible and I shall therefore direct that the wife’s application under Schedule 1 be listed for an urgent hearing in the West London Family Court before HH Judge Rowe QC, the designated family judge. It may well be that the judge will decide to consider at the same hearing further ongoing case management directions in the child arrangements proceedings which are not directly before this court. That is entirely a matter for her.

The appeal against the decision of HH Judge Parfitt dated 12 May 2017 is also dismissed.

As some time has now passed since his directions were given, I propose to direct that the ToLATA proceedings be listed for case management directions before a circuit judge in the Central London County Court on a date to be fixed by that court’s office but to take place no later than 7 December 2018, with a time estimate of one hour.

The parties are directed to attempt to agree the terms of consequential orders, including as to costs, in the light of this judgment. If they are unable to agree, they must each submit written submissions, incorporating the terms of the order(s) for which they contend, by 9.30 on the morning when judgment is to be handed down. It will then be unnecessary for any party to attend at that hearing.