The issue here is whether the court has jurisdiction to entertain a divorce
petition issued by Mrs V (the wife) on 1 April 2010.
The claimed basis for jurisdiction is provided by indent 5 of Article 3(1)(a)
of Council Regulation (EC) No 2201/2003 (“Brussels II Revised”):
"In matters relating to divorce... jurisdiction shall lie with the courts
of the Member State... in whose territory… the applicant is habitually
resident if he or she resided there for at least a year immediately before
the application was made."
The wife, upon whom the burden of establishing jurisdiction rests,
contends that she had been habitually resident in London since August
2008, and thus for over a year at the time of her petition.
The husband, Mr V, disputes this. He accepts that the wife was habitually
resident in London between August 2008 and December 2009 but
contends that she was not habitually resident (or even resident) in
London between December 2009 and March 2010, but rather that she
resided in Switzerland during that period.
I will set out the facts (making findings where necessary), consider the
applicable law, and state my conclusion. I will make comment about the
level of costs.
Facts
The husband is 41 years old. He is a member of a Greek shipping family.
As a young child he moved with his mother to Switzerland and attended
school there before going on to university in the United States. In 1994,
he moved to England. In 1996, he was the beneficiary of family litigation
which provided him with a substantial personal fortune, from which he
bought a property in Kensington, which I will refer to as "the London
house". He has not been employed in recent years and describes himself
as a private investor.
The wife is 38 years old. She was born and brought up in Brazil and
then attended schools in the United States and Switzerland. She went
to university in Paris before attending an art course in London, following
which she briefly worked in a gallery in New York.
In 2001, the husband was living in London. The wife had returned to Paris
and in the summer of that year they met in St Tropez. They began to live
together in the London house and in 2003 they married.
In 2004, substantial work was carried out on the London house, overseen
by the wife and paid for by the husband.
In July 2005, the couple moved to Los Angeles and their first child, a
daughter, was born in the following month. The London house was let for
five years. Their very extensive belongings were placed in storage.
There is an issue between the parties as to the reason for leaving London
at this time. The wife says that it was prompted by the husband's desire
to be out of the country for three years so as to reset the clock of his non-
domiciled tax status and enable the family to live in London uninterrupted
once schools were required. The husband says that they left simply
because they wanted to. I find that tax planning was a major reason for
leaving London. This is effectively reflected in a later e-mail from the
husband to an immigration solicitor in January 2009, referring to "the
3 years away that I needed to restart my non-domiciliation from zero
years." In this family, other priorities tend to take second place to tax
considerations.
At the end of 2005, the family moved to São Paulo, where they lived
in rented accommodation until June 2008. Over this period, they
travelled widely to mainland Europe, England and Greece, the husband's
family owning a holiday home in Crete. In March 2008, they visited
London to arrange a first school place for their daughter. They spent the
summer (and also the following Christmas) in Switzerland, staying in the
husband's family chalet in Gstaad, which is shared with his mother and
other members of his family. In July 2008 their second daughter was born
in Milan.
In August 2008, the family moved back to England and rented an address
until the London house became available again in July 2009. The furniture
was then taken out of storage and a certain amount of redecoration
was undertaken by the wife. The 2009 summer holidays were spent in
Greece and in Gstaad and the children began school and playgroup in
September. The wife began a part-time interior design course, which
required attendance on Wednesdays.
The husband decided not to remain in England and from the 2009
summer holiday he moved to live in Gstaad. He was particularly anxious
to avoid UK tax liability in relation to a substantial piece of business on
which he was working. The wife and children visited him in Switzerland
over the October 2009 half term. By this time the older child was,
unsurprisingly, missing her father
Since 2009, the need for the family to restrain its expenditure has been
apparent to both spouses, and in particular the husband.
In November 2009, the wife negotiated with the older child's school for
her to be taken out of school for the first term of 2010 so that she could
spend more time with her father in Switzerland, where she would go
to school. It was clearly stated that the child would return to school in
London in April 2010, and that the missed term’s fees would be paid
anyhow. The letter making this request to the school was approved by
the husband. In Switzerland, the husband submitted an application to
an international school in Gstaad. This explicitly referred to the child
attending for the first term of 2010 only. Both schools have confirmed
that their understanding was always that the child would return to
continue her education in London in the following term.
At the same time, the wife informed her course provider that she would
be commuting back to London on Wednesdays during the January-March
2010 term only.
On 18 December 2009 the wife and children went to Gstaad. The wife
remained there until 21 March 2010, but she returned to the London
house frequently, spending 28 nights there during the three-month
period. On one occasion, the wife was detained for several hours at
the airport when entering England because of uncertainty about her
immigration status.
In February 2010, the wife was looking for rental properties in London on
the basis that the London house would be sold at some point after July
2010. The search was conducted through an agent who is a lifelong friend
of the father.
The children returned to London on 23 March, being delivered by their
father, who returned to Switzerland without passing through passport
control.
On 24 March, the wife attended an interview at the Home Office in
support of her application for a UK residence permit, which was granted
on 30 March. The process, which began in 2009, had been carried through
with the full knowledge and support of the husband.
On 1 April 2010 the wife issued her petition, but did not serve it. On 15
April, the husband came to London. The wife asked him to accompany
her to a wedding in Paris at the weekend, but he preferred to be with
the children in London. Words followed. On 19 April, following the wife's
return to London, her divorce petition was served. On 21 April the older
child’s school term began.
The wife's explanation for the time spent in Switzerland is that it was
nothing more than a temporary time-limited arrangement for the benefit
of the older child. In her affidavit, she sets out the details at paragraphs
31-33:
31. [He] left me and the children in London in mid-September 2009 on
the basis that he would return to London in April 2010. During this period
we would visit each other, and the venue would depend on the school
term and holidays. The children and I were in a regular routine in London
and it was not intended that this would be unduly disrupted....
32. However during this period when [he] and I were apart, [our elder
daughter] began to miss her daddy more than we had anticipated. I took
the girls to Gstaad to visit him over the half term at the end of October
2009. We talked about the situation and how we would resolve it. The
children and I flying over at weekends was a possibility but this seemed
too disruptive of our lives in London; also we thought that [she] was
missing seeing her father on a daily basis and that weekend visits might
not be the answer.
33. [He] suggested that I come to Gstaad with the girls for the period
from January to March 2010. The children and I would then return home
at the end of the winter term and for the Easter holidays and it would
not then be too long before [he] could join us again in London. I was
prepared to go along with [his] idea as long as I could ensure that [our
daughter] would not lose her place at [school in London] if she was
absent in Gstaad for a term, and that she could obtain a place at the
[school] in Gstaad for one term.
The husband says that, on the contrary, it had been agreed that the
wife and children would be moving permanently to live with him in
Switzerland. In his affidavit, he sets out the details at paragraphs 43 and
45.
43. As [she] says, it became apparent in September-October 2009
that [our elder daughter] was missing me and that it was necessary for
her sake that the family should be reunited sooner rather than later.
Accordingly, it was agreed that [she] and the children would move to
Gstaad in December.
45. Whatever [her] intentions were when she made the arrangements to
keep [the] place open at [the London School], once she had moved to
Gstaad in December 2009, she made the decision to settle there with the
children as we had been discussing. I discussed this with [her] at the time
and she agreed that there was no plan to return to London. She started
to settle into life in Gstaad and told other people that she was now living
there on a permanent basis....
The husband says that the account given to the schools that the child
would be returning to school in London had to be given, as the wife's
application for a UK residence permit would otherwise have been
prejudiced. In relation to the trip to London at the end of March 2010, he
says that he expected the wife and children to return to Switzerland after
about ten days in order to resume life and schooling there.
I resolve this central factual issue in favour of the wife. I find that the
account that she gives is likely to be correct and that the husband's
account can be rejected. My reasons are as follows:
(1) The wife's account has been consistent throughout.
(2) It is supported by all contemporaneous documentation, and in
particular the communications with the school and the course provider. I
do not accept that a false account was given to the schools to protect the
wife's immigration application. That was an application which could not
have ranked very highly in the parties' minds if permanent residence in
Switzerland was in fact the plan, and it was not high on the agenda at the
end of 2009.
(3) The wife's account is supported by most of the circumstantial features.
I would instance the following, in no particular order:
• The two family dogs, who had been in London since 2008, were not
brought to Switzerland, but placed in kennels outside London. In contrast,
they had travelled with the family to the United States, Brazil and
Switzerland after the previous long-term departure from London in 2005.
• The family's belongings remained in the London house and were not
placed in storage, as they had been in 2005.
• The wife and children took only winter clothes to Switzerland, the rest of
their extensive wardrobes remaining in London.
• The wife returned frequently to London, including visits to continue her
course.
• In contrast to the pursuit of UK residence status for the wife, no
application for a residence permit has ever been made in Switzerland by
either party.
• The chalet at which the husband lives in Gstaad, and which the family
has often visited, is not a family home which is ever likely to have
represented a permanent solution for the wife. I accept her description
of it as a holiday home for herself, the husband and children. It had been
the Swiss home of the husband's mother since 1978, and since 1998 has
been rented by the husband and his mother jointly. I do not accept that
the wife was involved in any discussions about adapting the property
to be a family home, for example by choosing carpets, as the husband
suggests. Nor is there any evidence of discussion between the parties
about finding their own home in Switzerland.
• In contrast, the wife was actively house-hunting in London. There would
be no reason for her to do this if the family had agreed to relocate, and in
the light of the choice of an agent so close to the husband I discount the
possibility that she was doing so secretly.
• The contents of the correspondence and other documentation following
the service of the divorce petition support the wife's case (see below).
(4) The wife's evidence was clearly given, if somewhat self-serving at
times, and was not shaken in cross-examination.
(5) The husband's written account is thin and unconvincing. His affidavit
evidence is inaccurate about his movements in the latter half of 2009 and
about the wife's movements over the same period. It is also inconsistent,
suggesting in one breath that the permanent move was agreed upon
before the wife and children left London, and in another that the idea
developed after they arrived in Switzerland. I do not accept the husband's
explanation that these discrepancies arose from his being preoccupied
with other concerns. They reflect that fact that he was trying to describe
events that did not occur.
(6) There is not a single contemporaneous document supporting the
husband's case that a permanent move to Switzerland was being
contemplated. This absence is noteworthy because he and the wife were
in continuous e-mail communication in the latter part of 2009, being in
different countries.
(7) Other circumstantial features include the following:
• When the wife and children did not return to Switzerland in April 2010
the husband did not remark upon it in any written communication, still
less make a complaint. (I refer to the evidence about conversations
below.) There were 23 e-mails from the husband to the wife in the period
after she left Switzerland, of which 10 were after the time when, on his
account, she should have been back there with the children. Not one of
these speaks of a failure to return. Similarly, when the husband solicitors
first wrote to the wife's solicitors on 30 April in a very detailed letter, there
was no complaint whatever about the wife's presence in London. On the
contrary, the letter says that the husband was "happy with the present
arrangements for the children".
• No enquiry was ever made about a place at the Swiss school being
available for the term starting on 19 April, nor did the husband even ask
the wife about it.
(8) The husband’s oral evidence was particularly weak. It was very hard
to understand what his position was on a number of issues. At other
times, his evidence did not appear to support his case. In his evidence
in chief, he said that at the time when he approved a draft of the letter
to the London school at the end of November 2009, "it was not really
clear if the move was permanent or not". Under cross-examination,
he was vague and evasive, as if dreading the consequences of being
clear about anything. On the particular question of his response to the
wife's non-return in April 2010, he volunteered that he had repeatedly
telephoned her to ask when she would be back, but was met by a series
of explanations and excuses. His evidence did not satisfy me that this was
so. The suggestion emerged for the first time in the witness box. It does
not appear in either of his affidavits, and nor was any such suggestion
put to the wife, who gave evidence first. Given the complete absence
of corroboration or circumstantial support, it would have taken a far
more convincing witness than the husband to persuade me that these
conversations had taken place.
(9) I have read but can attach no weight to the statements filed by
witnesses on behalf of the husband. They lack any compelling quality and
none of the makers made themselves available to give evidence.
(10) I accept that from 2009 onwards financial considerations began to
play a part in the couple's thinking. I do not accept the husband's case
that a move from London was thought to be necessary for reasons of
economy. His evidence went no higher than saying that he understood
that the wife accepted that she had to move to Gstaad for financial
reasons. I preferred her denial.
My overall finding on this issue is that the wife has lived in London since
August 2008. However, she and the children have been away on these
significant occasions (and no doubt on others, and elsewhere):
Christmas 2008 Gstaad
July 2009 (month) Crete
August 2009 (month) Gstaad
October 2009 (half term) Gstaad
December 2009 - March 2010 (winter term) Gstaad
Within the last period of three months the wife spent about two thirds of
the time in Switzerland and one third in London.
The nature of this family’s background provides an important context
when it comes to interpreting the movements of its members. Just as
there are multinational companies, so this is a multinational family.
Their lives have not been tied down by mundane considerations such as
financial budgets, local connections, immigration restrictions or language
limitations. Instead, they have lived a protracted modern version of the
18th-century Grand Tour, gravitating towards places where the moneyed
international social set gathers. The husband, in particular, appeared to
struggle in evidence to comprehend the concept of "home" as applying to
his family at all. They have, as Mr Scott QC says, shallow roots.
The parties deploy this conclusion to different effects. On behalf of the
wife it is said that a term’s absence has much less significance than it
would for a more conventional family. On behalf of the husband it is said
that the family's itinerant lifestyle makes it easier to interpret the period
spent by the wife in Switzerland as a change in habitual residence.
To complete the narrative, the family has remained in London to this
date. The London house, the only family home that either of the parties
had owned, was sold in November 2010. Each parent has found rented
accommodation. The children's main base is with the mother but they
spend substantial time with their father.
In May 2010, the husband filed an Answer contesting jurisdiction. In June
2010, he issued Hague Convention proceedings seeking the children's
return to Switzerland. In July 2010 he issued divorce proceedings in
Greece, which have since been stayed pending the outcome of these
proceedings.
The law
I acknowledge the high quality of the submissions I have heard on this
issue.
The jurisdictional grounds under Article 3(1) of BIIR are these:
Divorce, legal separation and marriage annulment
Article 3
General jurisdiction
1. In matters relating to divorce, legal separation or marriage annulment,
jurisdiction shall lie with the courts of the Member State
(a) in whose territory:
— the spouses are habitually resident, or
— the spouses were last habitually resident, insofar as one of them still
resides there, or
— the respondent is habitually resident, or
— in the event of a joint application, either of the spouses is habitually
resident, or
— the applicant is habitually resident if he or she resided there for at least
a year immediately before the application was made, or
— the applicant is habitually resident if he or she resided there for at least
six months immediately before the application was made and is either
a national of the Member State in question or, in the case of the United
Kingdom and Ireland, has his or her ‘domicile' there;
(b) of the nationality of both spouses or, in the case of the United
Kingdom and Ireland, of the ‘domicile' of both spouses.
Habitual residence is a concept under European law whose meaning is
not in doubt. Its character appears in paragraph 32 of the explanatory
note of Dr Alegria Borrás to the equivalent article in the original Council
Regulation ("the Borrás report"):
"A person's habitual residence is the place where the person has
established, on a fixed basis, the permanent or habitual centre of his
interests, with all the relevant factors being taken into account."
It is well established that one cannot be habitually resident in two
countries simultaneously for the purposes of EU law.
In L-K v K [2007] 2 FLR 279, Singer J said this of habitual residence: "By
way of gloss on that, it does not have to be permanent. It needs to be
habitual. The emphasis is on a person's centre of interests. The verb used
is "established" and all relevant factors are to be taken into account."
I also refer to Z v Z [2010] FLR 694, a decision of Ryder J. He considered
the relevance of a party's intention when considering their centre of
interests, and accepted that intention forms a part of the court's overall
assessment and that it takes its place as one of the facts in the case
(paragraph 44). Mr Scott argues that this introduces an undesirable
element of uncertainty. If intention were synonymous with the subjective,
capricious wish-fulfilment of one party, I would agree. The test for
habitual residence is objective. But what is meant by intention here
is no more than another way of bringing into play the reasons for the
parties' actions. Concepts such as "permanent", "habitual", "residence"
and "home" have a mental element which the court is well able to assess
objectively. I therefore agree with Ryder J in this respect.
Worthwhile matters appearing from the Borrás report are that the
grounds for jurisdiction are objective (paragraph 28) and are based on
the principle of a genuine connection between the person and the claimed
jurisdiction (paragraph 30). In the great majority of cases jurisdiction
will belong to the court of the state in which both spouses are habitually
resident.
In contrast, the report also refers to two of the grounds for jurisdiction
(one being the ground relied on in this case) as being designed for
"exceptional cases on the basis of habitual residence combined with
other elements." (Paragraph 32) In the case of the fifth indent the "other
element" is the requirement of at least a year’s residence immediately
before the application was made. In the case of the sixth indent it is the
requirement of at least six months' residence and nationality of the state
in question, or in the case of the United Kingdom, domicile. Reference is
made in the explanatory notes to the difficult negotiations that led to the
formulation of each of these grounds for jurisdiction.
The meaning of the fifth and sixth indents has been considered in two
decisions of this court.
In Marinos v Marinos [2007] 2 FLR 1018, Munby J held there are two
elements to the fifth indent. The petitioner must be habitually resident at
the date of the presentation of the petition and must have been resident,
though not necessarily habitually resident, in the state for at least a year
before then.
In Munro v Munro [2008] 1 FLR 1613, Bennett J considered that the fifth
and sixth indents are to be read as imposing a single requirement of
habitual residence of at least one year or six months, as the case may be,
at the date of the presentation of the petition.
The distinction between the two interpretations depends upon whether
one regards the expression "resided there" as implicitly taking colour from
the immediately preceding reference to residence that is habitual, or as
having an independent meaning.
In the present case, the parties' submissions as to which interpretation
is to be preferred were not strongly pressed, perhaps because they were
made before the court's findings of fact were known. As it was, Mr Scott
indicated a mild preference for the reasoning in Munro, while Mr Peel QC
argued gently in favour of Marinos.
As I said in argument, it is unfortunate that families such as these should
have to expend resources arguing about the true meaning of a poorly
drafted phrase, which defines itself as ambiguous in having attracted two
distinguished conflicting interpretations. However, given the issue that
I have to decide, I cannot avoid reaching my own conclusion about the
nature of the requirement.
I consider that for jurisdiction to be established on the ground specified in
the fifth indent of Article 3, the petitioner must show habitual residence
at the time of the presentation of the petition and that he or she has been
resident in the jurisdiction for at least one year immediately before that
date. I therefore find myself in agreement with the interpretation provided
in Marinos. My reasons are these:
(11) It reflects a plain reading of the article.
(12) Habitual residence is a term of art, while residence is not. Residence,
as Mr Scott says, is simply where a person lives. As the Borrás report
makes clear, the drafting of these particular indents was heavily
contested. I agree with Munby J (at paragraph 46) that "the regulation...
quite clearly distinguishes between two different concepts. If it had
been intended to refer just to the one concept the regulation could, for
example, very easily (and whether in English or in the equivalent French)
have used [other] words” (and he then goes on to illustrate). In contrast,
the decision in Munro requires the court to add a word ("habitually") that
does not appear.
(13) I read the article as a whole as requiring a petition to show the
qualitative feature of a genuine connection, as represented by habitual
residence and, in minority cases under the fifth and sixth indents, a
quantitative feature based upon length of residence. I believe that this
is what is meant by Dr Borrás when she speaks of "the basis of habitual
residence combined with other elements" in these indents.
(14) On the issue as a whole, I respectfully prefer the analysis of Munby
J. The reasoning of Bennett J at paragraphs 49-54 of his judgment is, I
find, less easy to follow.
(15) As it happens, the decision in Munro did not turn on the
interpretation of the sixth indent, but was determined by a finding that
both spouses had been domiciled in this country and the jurisdiction
existed under Article 3(1)(b). Bennett J’s observations were, as he
acknowledged, obiter dicta.
It is therefore also necessary to consider the question of residence, as
opposed to habitual residence.
The recent decision of the Court of Justice of the European Union in
Mercredi v Chaffe [2011] 1 FLR 1293 concerning Articles 8 and 10 of BIIR
in the context of habitual residence of children distinguishes between
habitual residence and "mere temporary presence".
I agree with Munby J that it is possible to be habitually resident in one
country and resident (but not habitually) in another. I also agree with
him (at paragraphs 74-78) that it is possible to be resident in more than
one country, in the sense of having more than one place of residence
simultaneously. That was the case in Marinos, where the petitioner had
homes in Greece and England, between which she divided her time
roughly equally. She described herself as being resident in both countries.
Mr Scott queried whether this can be correct. He argued that it is possible
to have more than one residence between which one alternates, but
questions whether one can have more than one residence simultaneously.
He points out that European law places a high premium on certainty, and
in some countries residence permits are required. However, he accepted
that there is no authority on the point.
I have no difficulty with the concept of a person being resident in more
than one place at a time. It is a description that applies aptly to a number
of situations – the family with more than one main home, the person
who spends extended periods away at an established place of work.
Such a person is of course only present in one place at a time, but the
relevant concept is residence and not presence. It makes no sense
to regard a person who travels between two homes on a regular and
frequent basis as oscillating in perpetual succession between being
resident at one and then at the other. This does not accurately reflect
ordinary use of language, nor provide any valuable certainty, while any
consequences in terms of civil status or tax status can readily be catered
for. In particular, since simple residence is not a basis for jurisdiction,
simultaneous residence in more than one member state cannot lead to
jurisdictional conflict.
Conclusions
I find that the wife was habitually resident in London at the date of her
petition. The evidence clearly establishes that it was the place where she
had established, on a fixed basis, the habitual centre of her interests. Her
home was in London. Most of her social set lives here. Her children had
been going to school here. Her doctors and a number of other providers of
services were here. Her interrupted course of studies was here. Almost all
her belongings were here. The dogs were here.
As an alternative I further find, and for the same reasons, that the
wife had been habitually resident in London for at least a year before
the presentation of her petition. I do not consider that the absence in
Switzerland alters that conclusion. Given my view about the correct legal
test, the conclusion in this paragraph is not strictly relevant, but I state it
in case my prior legal conclusion is at fault.
Next, I find that the wife had been resident in London for at least a
year before the presentation of her petition. I do not consider that the
absence in Switzerland alters that conclusion, any more than her other
absences can have done. Mr Scott did not suggest that a month in Crete
plus a month in Switzerland over the summer holidays of 2009 would
amount to a change of residence from London to those places, even
though both are familiar family holiday homes. However, he did argue
that absence for a school term has a different quality, even if it was on
a temporary basis. I agree with that, and in the case of many families it
might well amount to a change of residence. In the case of this particular
family, I do not so find. It was not in reality a change of residence for
the wife, but a temporary presence in Switzerland for the benefit of the
husband's relationship with their children. The context is important here,
and I prefer the argument of the wife that the family’s way of life makes
her absence from London of less significance than it would be in many
cases. Her constant return trips to London are also a factor. The period
in Switzerland amounted in all to no more than a couple of months of
temporary absence, continually interrupted by flights back home. Looking
at the matter overall, this relatively short period did not prevent that the
wife from being regarded as being resident in London for the year before
she presented her petition.
In the alternative, I further find that, even if the wife was resident in
Switzerland during the period in question, she was also simultaneously
resident in London. Again, this finding is not necessary for my decision,
but I make it in case my conclusion in the preceding paragraph is in
question.
Finally, although again it is not necessary for my decision, I do not accept
the husband's case that the wife was habitually resident in Switzerland
during those three months. I find that she has not been habitually
resident in Switzerland at any time. Nor can I accept the husband's
fallback position, which is that the wife was not habitually resident
anywhere during those three months.
For the reasons contained in paragraphs 53 and 55 above (and, were it
necessary, for the alternative reasons contained in paragraphs 54 and/or
56), I conclude that the wife is entitled to proceed with her petition.
For what it is worth, I believe that this outcome in fact best serves the
purposes of the Council Regulation. I do not accept the husband’s explicit
charge that the wife was ‘forum-shopping’. Throughout its existence,
this family's connection with this country has been stronger than its
connection with anywhere else, and in particular with the husband's
chosen forum in Greece. If the wife failed to establish jurisdiction on the
basis of her present petition, she would simply issue a fresh petition on
undoubtedly firm jurisdictional foundations. The husband's petition in
Greece does not qualify under any basis provided by BIIR. He would have
had to persuade the Greek court to act on the basis of local law, if such
were possible, and a further forum battle would no doubt have followed.
If the husband had succeeded in his opposition to the presentation of the
wife's current petition, I suspect that it would have turned out to be a
Pyrrhic victory, in the truest sense of the word.
Costs
These parties have not hesitated to litigate about every conceivable
issue. In addition to the issues of jurisdiction and child abduction, the
case has constantly been before the court since April 2010. There have
been arguments about chattels, occupation and non-molestation orders,
freezing orders, interim financial orders, and litigation funding. There
have been several hearings about the children, and even though a shared
residence order is now in place, a two-day hearing about the precise
arrangements is listed for June 2011. Having been informed of the issues
between the parents, I strongly urged them to have discussions with a
view to reaching one of a number of fairly obvious solutions for their own
benefit and that of their children.
Persistent failure to reach agreement has generated an absurd level of
legal costs. I directed the parties to provide schedules of expenditure
to date. The wife's costs now amount to £425,000, of which £114,000
remains unpaid. The husband's costs amount to £500,000, of which
£63,000 remains unpaid. The overall bill to the family, now standing at
£925,000, will no doubt top £1 million if next month’s hearing about the
children goes ahead. It should be recalled that this level of expense has
been incurred without a basis of jurisdiction having been established, or
a page being filed in relation to the ultimate financial orders that will be
required.
The case is evidently not proceeding in accordance with the overriding
objective that it should be dealt with expeditiously and by saving expense,
and it is also being allotted a disproportionate share of the court's
resources. I shall direct that at every future hearing of whatever kind
each party shall provide the court with an updated schedule of costs of
the kind presented at this hearing. It is just possible that continuous
reminders of the irreplaceable loss of money that could be better spent
will have some effect on the parties' thinking.
Lastly, Part 3 of the Family Procedure Rules 2010 requires the court
to consider at every stage in proceedings whether alternative dispute
resolution is appropriate. The court is entitled to adjourn proceedings on
its own initiative to enable alternative processes to be explored. I would
expect that this option will be very much in the mind of judges conducting
any future hearings.