„(…) WALL J: There is before the court a summons issued by the mother
of a child, S, born on 19 June 1982, for the trial of a preliminary issue as
to the jurisdiction of the English court to hear an application which the
mother has made in England for S's maintenance.
The issue arises because the parties live in different jurisdictions. The
father lives in England and the mother lives with S in Italy.
The mother's application to the English court for maintenance, it is
common ground, was instituted on 3 December 1992 in the family
proceedings court in Richmond. It appears there was a substantial delay
before those proceedings were issued but that is, none the less, the date
which is relevant. That application, because of the jurisdictional issue,
has been transferred to the Principal Registry and then, by order of Mrs
District Judge Pearce on 25 June 1993, to this court.
The father issued proceedings in Italy on 15 September 1992 which were
filed with the court on 26 September 1992 and served on the mother on
22 October 1992.
Mr Spon-Smith, who appears for the mother, asserts that those
proceedings sought access. I will refer to the terms of the application in
a moment. It is, however, clear that in the course of the petition to the
Italian court the father 'floated' (Mr Spon-Smith's word) the question of
maintenance.
Having set out the history and having put forward his case for contact,
the father goes on to say that the disagreement with the mother
concerned both visits to the child and the amount of the maintenance
for her. By way of example, he states that in January 1992 he sent his
daughter £ 2000 and since then £ 200 a month. He also states that he
is prepared to pay for her the amount which is decided by the court but
that at the same time he wishes, in the overriding interests of S, to see
the arrangements for the expression of his paternal duties and rights
acknowledged and established. The above having been stated, he applies
to the court once the formal requirements have been complied with to
recognise his right to be able to see his daughter S compatibly with her
scholastic commitments and, therefore, whenever he comes to Italy, and
to be able to have her with him for at least one week at Christmas and/or
Easter and also for 4 weeks during the summer period, and at any other
time the child might wish and will be possible. He states that he would
accept liability for the travelling expenses involved, and he attaches some
documentation.
As I have already stated, the proceedings were served on the mother on
26 October 1992 and, according to Italian procedure, there was a hearing
before the court on 13 November 1992 at which the mother appeared and
during the course of which, from evidence she herself has subsequently
produced by way of letter to the father, she sought from the judge (and
she says the judge suggested) that there should be maintenance for the
child in a specific sum.
On 11 December 1992 the mother made a formal cross-application to the
Italian court of which, once again, I have a translation.
Having joined issue with the father on a number of matters in relation to
contact and, indeed, maintenance, she formally seeks from the Italian
court relief in the following terms. She seeks, first of all, custody. She
then seeks specified contact and she also asks the court to make an order
for a maintenance contribution of 1m lira or such sum as it considers
suitable to be paid by the father, with monetary revaluation in accordance
with the annual ISTA indices, to be paid on the fifth day of each month by
way of contribution towards the maintenance of S.
It is, I think, significant, although I am of course dealing with a document
in translation, that the preamble contains the phrase, 'The mother of the
minor now applies to the court'. The date of this document – which is of
critical importance to the case – is 11 December 1992.
On 20 April 1993 the Italian court, in adjudicating on the question of
contact, specifically declined jurisdiction to deal with the question of
maintenance; the Italian court holding that it had no jurisdiction to decide
on the contribution to be legally imposed on the father, this being in the
competence of the English court 'before which proceedings are already
tendered in this matter'. That decision, I am told, is subject to appeal by
the father and the appeal is due to be heard on 10 October 1993.
The mother's case before me today is that the English court proceedings
are first in time and that the Italian court, accordingly, is correct in
declining jurisdiction. The father says that the Italian court was wrong
in so doing and that the proceedings instituted in Florence were in fact
instituted prior to the mother's proceedings in England.
It is common ground between counsel that the Brussels Convention,
brought into English law by the Civil Jurisdiction and Judgments Act
1982, applies to the instant case. Article 1 provides that the Convention
applies in civil and commercial matters, whatever the nature of the court
or tribunal, and it is common ground between the parties that these
are civil matters. It is also common ground, that Art 2 – 'Subject to the
provisions of this Convention, a person domiciled in a Contracting State
shall, whatever their nationality, be sued in the courts of that State' –
opens the door to pursuit of the father in England, although it is also
common ground that it would also be appropriate, if the circumstances
were right, for proceedings to be pursued in Italy. Either court thus has
jurisdiction under the Convention.
The critical clause of the Convention for these purposes is Art 21, which is
in the following terms:
'Where proceedings involving the same cause of action and between the
same parties are brought in the court of different Contracting States,
any court other than the court first seized shall of its own motion decline
jurisdiction in favour of that court.'
So, the critical question before me is: which was the court first seized of
the application for maintenance?
It is common ground between the parties that the term 'seized' is to be
interpreted according to the lex fori in each case. Under English law, the
English court is seized when proceedings are issued, and under Italian
law, the Italian court is seized when proceedings are served on the
defendant.
Looking at the timetable, the father's Italian proceedings were served
on the mother on 22 October 1992. The mother's proceedings were
issued in England on 3 December 1992. Mr Spon-Smith asserts that it
was the mother's cross-application which effectively instituted the Italian
proceedings for maintenance of S which are dated 11 December 1992 and
which a fortiori must have been served after that date. So, if Mr Spon-
Smith is right – that the mother's cross-application was issued in the
Italian court on 11 December 1992 – that clearly post-dates the mother's
proceedings in England issued on 3 December 1992.
The question, therefore, becomes: what was the nature of the
proceedings issued by the father in September 1992 and served on the
mother on 22 October 1992?
The father asserts that those proceedings were not merely proceedings
for contact, but were proceedings for maintenance.
The mother asserts that those proceedings instituted by the father were
proceedings for contact in which the question of maintenance was simply
floated and introduced in order to ease the path. The mother asserts,
accordingly, that since the proceedings instituted by the father sought
contact, the cross-application made by the mother for maintenance
was not made until formally instituted and served by cross-application
dated 11 December 1992. Mr Spon-Smith says that that interpretation is
supported by the conclusion reached by the Italian court and the fact that
it has declined jurisdiction to proceed. He says, further, that the fact that
the decision is under appeal does not affect my obligation to reach my
own conclusion. But he submits that, if he is wrong, the most I should do
in the circumstances is to stay the proceedings under Art 21, the second
sentence of which reads:
'A court which requires to decline jurisdiction may stay its proceedings if
the jurisdiction of the other court is contested.'
Clearly, if I find that the English court is first in time, the second sentence
of Art 21 does not apply.
The critical question, therefore, remains: what was the nature of the
father's proceedings instituted in September 1992 and served in October
1992?
I have come to the conclusion, notwithstanding the persuasive argument
of counsel for the father, that those proceedings were, indeed, for contact.
It may be dangerous to liken a foreign jurisdiction to English proceedings,
but it seems to me plain from the nature of the father's petition that
he was, indeed, saying, 'I wish for contact and I am prepared to pay
maintenance'. The obligation to apply for maintenance from the court in
any formal sense seems to me to be fair and square on the mother in
those circumstances. The Italian procedure enables her to come before
the court, as it were, on a preliminary application to state her case before
any formal cross-application is issued. But I am quite satisfied that that
formal application was not issued until the proceedings which she issued
by way of cross-application on 11 December 1992. As I have already
indicated, I gain some support for that view by the terminology of the
mother's cross-application, in which she says she applies to the court.
In those circumstances, it seems to me that the English court is first in
time and, therefore, has jurisdiction to entertain these proceedings.
I am, of course, concerned that there may be two jurisdictions, both
taking the view that they have jurisdiction if the father's appeal to the
Italian court succeeds. But, in my judgment, a worse position would
be reached if I were to decline jurisdiction and the Italian court were,
likewise, to take the same view that it had no jurisdiction either. In those
circumstances, it seems to me that the arguments of Mr Spon-Smith
must prevail and, insofar as either a declaration or a ruling is required,
I rule that the English court has jurisdiction to entertain the mother's
proceedings for maintenance in the circumstances which I have outlined.
English Court has jurisdiction to entertain mother's proceedings for
maintenance. (…)“