England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
(MR JUSTICE WILSON)

		Royal Courts of Justice Strand London, WC2
		9 December 2004

1. LORD JUSTICE THORPE: This appeal raises a short point: in determining whether or not the court has jurisdiction under Council Regulation (EC) No 1347/2000 to dissolve a marriage is the judge bound or constrained by the way in which the case has been pleaded?
2. The parties to this appeal met in January 2001 and married in March 2001. Their only child - a daughter - was born on 22 January 2002. In the summer of 2002 the husband was posted to Germany by his employers. Accordingly the family settled in Germany with effect from the month of September.
3. In early 2003 the wife, with her daughter, visited her family in Australia. Her initial plan was to return on 6 March. In the event, she, despite her husband's protests, delayed her return until 21 March and returned not to Germany but to London. In the interim, between 6 and 21 March, the husband obtained an order without notice under the Hague Convention for the return of the child to Germany. This order was served on the wife when she arrived in London on her return to Europe. This signalled the commencement of litigation hostilities between the parties. The wife issued a divorce petition in this jurisdiction on 2 April 2003. The Hague Convention proceedings were decided by Mr Justice Munby on 24 July 2003. In her petition for divorce the wife had pleaded the court's jurisdiction on the ground that the parties were both habitually resident in England and Wales, alternatively that the petitioner and respondent were last habitually resident in England and Wales and the petitioner was still resident, alternatively that the respondent was habitually resident in England and Wales.
4. The basis of the judgment of Mr Justice Munby deprived the wife of any effective opportunity of making good that pleading. The petition had been served on the respondent husband on 14 July 2003 and, in due course, he applied to this court for permission to file an answer. The application was granted on 8 January 2004, and the answer was filed on 22 January. In his answer the husband challenged the court's jurisdiction. Plainly - following the decision of Mr Justice Munby in the Hague Convention proceedings - he had a strong basis for challenge. He sought the trial of a preliminary issue. On 3 February the district judge directed that trial to be conducted by a judge of the Division on 20 April. In the interim, on 16 March 2004, the husband issued his petition for divorce.
5. On 20 April before Mr Justice Wilson the fixture was unfortunately bedevilled by late filing of documents. Further an inadequate time estimate previously given compelled an adjournment.
6. Mr Tim Scott QC, who appeared for the wife on 20 April, sought to substitute for the pleaded bases of jurisdiction an alternative basis, namely that the applicant was habitually resident in the jurisdiction. The application was granted by the judge, but on the basis that the wife should be condemned in the costs thrown away by the late amendment. He said they should be assessed on an indemnity basis, and he further ordered her to make a very substantial payment on account within 28 days.
7. Mr James Turner QC was instrumental in the filing of a notice of application for permission in this court, supported by a skeleton argument in which it was submitted that Mr Justice Wilson had impermissibly granted the amendment application, and furthermore had been plainly wrong in his discretionary decision to give the husband only the costs thrown away and not all his costs to that date. That application was directed to be listed for an oral hearing, on notice, with appeal to follow if permission were granted; it is that hearing that is listed before us today.
8. Before coming to consider Mr Turner's robust submission, it is necessary to establish the statutory framework. The court's jurisdiction to entertain a petition for divorce is still regulated by the provisions of Section 5 of the Domicile and Matrimonial Proceedings Act 1973. However the court's jurisdiction was fundamentally changed by the introduction of the Council Regulation (EC) No. 1347/2000 of 29 May 2000, which came into effect on 1 March 2003 and is universally known as Brussels II. The consequential amendment to the provisions of the 1973 Act was effected by the European Communities (Matrimonial Jurisdiction and Judgments) Regulations 2001. The effect of these fundamental changes is that the court's jurisdiction is now governed by the provisions of Article 2 of the Regulation. Article 2 provides:

"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 wre last habitually resident, in so far as one of them still resides there, or

in the event of a joint aplication, 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, int he case of the United Kingdom and Ireland, has his '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."

9. One of the main purposes of this Regulation was to establish a clear basis of jurisdiction in all circumstances where there was potential competition by the courts of different Member States. That was achieved by Article 11. The essential object and effect of Article 11 is to provide that the court first seised exercises jurisdiction unless or until it is declined. Article 11 provides:

"1 Where proceedings involving the same cause of action and 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.

.....

3 Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court .....

4 For the purposes of this Article, a court shall be deemed to be seised:

(a) at the time when the document instituting the proceedings or anequivalent document is lodged with the court, provided that the aplicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; ..... "

10. The point taken by Mr Turner evolves from the argument and judgment below, all of which proceeded on the basis that the amendment of the pleading was essentially a case management decision for the judge to be taken in the exercise of a broad discretion.
11. All proceeded below as though the content of the pleading was fundamental to the foundation of the courts jurisdiction. The judge proceeded on the basis that, absent the amendment sought by Mr Scott, the inevitable outcome would be the dismissal of the petition, since the first three pleaded bases of jurisdiction were unsustainable following the judgment of Munby J.
12. The necessary contents of a petition are defined by Rule 2.3 of the Family Proceedings Rules 1991 which says:

"Unless otherwise directed every petition shall contain the information required by Appendix 2 to these Rules."

Appendix 2 states in paragraph (bb):

"Where it is alleged that the court has jurisdiction under the Council Regulation state the grounds of jurisdiction under Article 2.1 of the Council Regulation."

That is the foundation of Mr Turner's repeated submission to the court this morning, that unless the petitioner presented a case to the court that specified sustainable grounds within the provisions of paragraph (bb), the petition was bound to be dismissed and the apparent priority of this jurisdiction lost.

13. It seems to me that the fundamental flaw in Mr Turner's argument, both here and below, is the assumption that the presentation of the case by way of pleading either confers upon the court or denies the court jurisdiction under the Council Regulation. That submission ignores the independent function of the court, the independent responsibility of the court, to investigate and determine, of its own motion, in compliance with the Regulation, whether jurisdiction lies with the court or not.
14. Mr Turner has of course submitted that this approach invites artificiality and invites the prospect that a petitioner will file a specious assertion of jurisdiction and that the consequences are undesirable. It seems to me that the short answer to that is that spurious petitions will have but a limited life until such time as, on the determination of the preliminary issue, they are exposed for what they are, and the temporary advantage gained will be offset by the consequences in costs. The old days in which pleadings were of importance, and sometimes even determinative of the outcome in defended divorce cases, have long since passed.
15. The requirements of the Family Proceedings Rules have an obvious utility in a system where the process of divorce depends on the applicant completing a form, swearing to the truth of its contents and subsequently proving due service. It is the responsibility of a judge then to scrutinise this paperwork to ensure that the applicant has - at least on the papers - demonstrated an entitlement to the decree. Manifestly - for the swift and efficient conduct of that task - there needs to be a pleading, and the pleading needs to be in compliance with the schedule to the Rules. In my judgment that is the extent of their modern significance. Plainly the provisions of the Rules cannot begin to regulate or, in any way, limit the essential function and responsibility of the court to uphold the intention and effect of Article 2 of these Regulations.
16. It seems to me that Mr Justice Wilson plainly reached the right conclusion although, in my view, he was lured into an acceptance of the approach adopted by both leading counsel which was not the apt one.
17. Since the point is not immediately transparent on its face, I would favour granting permission to appeal but would refuse the appeal so created.
18. The costs argument which Mr Turner sought to add to his principal appeal was touched on most lightly in his skeleton argument when all that he said was that the judge -

"In any event made an award of costs in favour of the husband but was unduly limited in the circumstances."

That argument would have been hard enough to pursue even had he succeeded on the principal point, but his failure on the principal point makes it unarguable. So, in all its dimensions, I would dismiss this appeal.

19. LORD JUSTICE LAWS: I agree that permission to appeal should be granted and the appeal be dismissed for all the reasons given by my Lord, Lord Justice Thorpe.
20. In this, as in other fields, the state of the pleading cannot of itself qualify the existence or otherwise of the court's jurisdiction to hear the suit. As to the application relating to the judge's order for costs, for my part, I am very surprised that it was persisted in.
21. THE PRESIDENT: I also agree. The application for permission to appeal is allowed and the appeal is dismissed.
22. I make one comment in this case. There is a little child who is only 2 years old. This couple are litigating in two countries. At the end of the day they will litigate, no doubt, at great expense and enormous personal disadvantage to each of them, but even more personal disadvantage to their child. If, as a result of this end of this part of the case, it is possible for them - with the help of their very able lawyers - to seek mediation they may do a great deal of good for themselves and even more good for their child. It is none of the business of the Court of Appeal, but I do worry when I see a young couple engaged in what will, no doubt, otherwise be very prolonged litigation.

Order: Application allowed, appeal dismissed with the costs summarily assessed at £7,000 to be subject to set-off. Permission to appeal was refused.