England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		Monday, 20th October 2014 Tuesday, 21st October 2014

MR. JUSTICE MOSTYN:

1. This is an application by the respondent ("the husband") to strike out the wife's divorce petition issued on 13^th June 2014. It is made under Family Procedure Rules 2010 Rule 4.4. The reason the husband applies to strike out this petition is because he says that at the time that it was filed on 13^th June 2014, the jurisdiction of France had been unambiguously and incontrovertibly established within the terms of Article 19 of Council Regulation No.2201/2003 ("Brussels II revised"). In such circumstances where the jurisdiction of France has been established, this court is obliged, pursuant to Article 19(3), to "decline jurisdiction" which requires this petition to be dismissed.
2. If any case demonstrates the need for this particular European Regulation to be invested with a degree of flexibility, it is this. The facts are pitiful in the true sense of the word when one considers that the dispute not only encompasses the husband and the wife, but three minor children all in their teens. Although the relationship between the parties resulted in a de facto separation in June 2010, now nearly four and-a-half years later the parties are no nearer a resolution of their disputes. There is extensive litigation pending both in England and in France about their relationship.
3. The background facts are these. The parties are French nationals. They were married in France on 27^th February 1997 having, in the month beforehand, signed a conventional French marriage contract adopting the regime of separation de biens. Two of their children who I have mentioned, were born shortly before the parties moved to London in 2000. In the year 2000 the parties came to this country where the husband's work had taken him. Their third child, who I have mentioned, was born in 2001. In June 2010 the husband moved out of the former matrimonial home to a rented flat in West London. There is some dispute as to whether that signified an irretrievable breakdown of the marriage, but the parties were, in factual terms, separated from that point. Nine months after the de facto separation, the husband issued judicial separation proceedings in Nanterre in France. He did this on 30^th March 2011.
4. The wife's response to this was, on 19^th May 2011, to apply to the Child Support Agency for child support; on 24^th May 2011, to file a petition for divorce; and on the same day to make a separate application seeking child maintenance in its wider sense, that is not only periodic maintenance but also capital, for the children pursuant to Schedule 1 of the Children Act 1989. One can see that by that point, by the spring of 2011, there were four sets of litigation in two separate countries between these parties.
5. On 5^th September 2011, in accordance with the procedure prescribed in France, the conciliation hearing took place in Nanterre. That was adjourned and resumed on 8^th November 2011. The object of the conciliation hearing is, as is well known, to see if the parties can be brought to terms in the context of their dispute. It is not a process of reconciliation by any means. It is to see whether a mediated solution - and I use the word "mediated" in its looser sense - could be achieved. But it was unsuccessful.
6. Accordingly the matter moved into adversarial mode and on 15^th December 2011 Judge Isabel Vanrell made various declarations and rulings, which included a declaration that the French court had jurisdiction to pass judgment on interim measures. She declared that the issues relating to the children, including child maintenance, were to be dealt with in England. She awarded spousal maintenance of €5,000 per month to the wife; she appointed a notary to draw up a report on all the assets within six months of being instructed; and she reserved the costs.
7. The husband and the wife each appealed that decision. That came before the French appeal court 10 months later in October 2012. After hearing submissions from both parties, a reserved judgment was given on 22^nd November 2012 where the first instance decisions were all upheld.
8. Meanwhile in England the proceedings under the Children Act were making steady if somewhat slow progress. The question of the wife's divorce petition came before the High Court, before King J., on 7^th November 2012 where it was dismissed by consent, having regard to the terms of Article 19 of Brussels II Revised, which I have mentioned.
9. On 9^th January 2013 the husband issued proceedings here under Section 14 of the Trusts of Land and Appointment of Trustees Act 1996. These proceedings sought an order under that section declaring the nature, extent and realisation of his interest in the former matrimonial home in London. This act by the husband in commencing property proceedings here only serves to demonstrate the most unhappy state of affairs where there are competing proceedings both in England and France, but in relation to the proceedings that had been begun in England, one of the sets of proceedings has been begun by the husband himself, notwithstanding his strong wish that the parties should be divorced in France and there should be a French judicial allocation following such divorce of their resources.
10. I am of the clear view that the state of affairs with which I am presented cannot have been in the contemplation of the architects of Brussels II (in its original form) or Brussels II Revised. The object of the exercise is to ensure that jurisdiction is swiftly established, that cases are swiftly heard and that irreconcilable judgments are avoided. The history of this case demonstrates that none of those goals will be achieved, and that lengthy litigation in two jurisdictions potentially awaits these unfortunate parties.
11. I return to the French proceedings. On 17^th December 2012 the husband, without having procured the discontinuance of his French judicial separation proceedings, issued proceedings for divorce there. That came before the French court on 17^th May 2013 and on 11^th July 2013 the husband's divorce petition was dismissed, the French court being of the view that it was illegitimate inasmuch as it was issued during the pendency of the judicial separation proceedings. The reason, from which Mr. Cook did not demur when I put it to him, that the husband sought to issue the French divorce petition during the pendency of the judicial separation proceedings rather than following the discontinuance of the French judicial separation proceedings, was to avoid a hiatus between the end of the judicial separation proceedings and the issue of French divorce proceedings during which hiatus the wife might have been able to have "nipped in", if I might use that phrase, and issued a valid English divorce petition. Such is the nature of the manoeuvres that have bedevilled this case over more than four years.
12. Although the husband engaged in this manoeuvre, which was commenced in December 2012 and ended in July 2013, it is noteworthy that he took virtually no steps whatsoever in relation to his judicial separation proceedings. All that took place within those judicial separation proceedings was an extremely leisurely engagement with the French notary who had been directed to produce his report, as I have mentioned, on 15^th December 2012. It is obvious from the chronology that the husband took an extremely relaxed view about the progress of the French judicial separation proceedings. The reason for this is again not difficult to understand because for as long as the judicial separation proceedings were in being, the wife was prevented from issuing any divorce proceedings here in England, or at least so he believed. That of course was the very reason why the wife had consented to the dismissal of her first English divorce petition by King J. on 7^th November 2012.
13. The law in France stipulates that after 30 months a judicial separation suit which has not been disposed of will lapse. The date and time for such lapsing was midnight on Monday 16^th June 2014. It is noteworthy that in the first half of this year, 2014, with that deadline looming, the husband took no steps whatsoever to procure a decree of judicial separation in France.
14. Three days before the judicial separation proceedings lapsed the wife issued her second English divorce petition. That was issued on 13^th June 2014. The week before that, on 6^th June 2014 the wife applied ex parte to Moor J., to seek to obtain some kind of proleptic decree or declaration that her divorce petition when issued would only take effect at one minute past midnight on 17^th June 2014. Mr. Justice Moor was not prepared to make such an innovative and, to my mind, unprecedented order which would have been in all respects counter-factual, providing for something to happen in the future that had not in fact happened in the future. The reason for the wife seeking this imaginative order is obvious. It was again to avoid the possibility of being a victim of a hiatus - a hiatus that would have been created against her interests by virtue of the United Kingdom being in the western most time zone in the European Union.
15. Following the lapse of the French judicial separation proceedings it was open to both parties the following day, Tuesday 17^th June 2014, to file a petition for divorce. This the husband did in France at 8.20 a.m. (local time). That was of course 7.20 a.m. British Summer Time, a time of day when it would have been impossible for the wife to have filed a divorce petition in this country. So it can be seen that the husband was very well aware of the perils, as he saw it, of a hiatus arising, and was extremely astute to ensure that his petition was filed first. In fact at that time the wife had an outstanding petition on the court file here, as I have explained. It is debatable whether she would have needed permission to have filed a yet further petition - I have not researched that - but the chronology I have set out demonstrates that the husband was at all times extremely aware of the advantage of the French time-zone, and that he took advantage of it so as to ensure that any petition filed following the expiry of the judicial separation proceedings would be his and would be in France.
16. The husband applied on 9^th October to dismiss or strike out the wife's petition dated 13^th June 2014, and that is the application which is before me.
17. This is a sorry tale of manoeuvring in the face of the seemingly inflexible jurisdiction rules in relation to divorces which are contained in Brussels II Revised. It is a remarkable and regrettable fact that Brussels II Revised contains within Article 15 a procedure which allows a court which has jurisdiction to transfer the case in question to another court within the European Union if it is better placed to hear it, but that power is available only in relation to children's cases. There is no comparable provision within Brussels II Revised which allows a court to transfer a divorce to the courts of another member state on the basis that the courts of that latter member state would be best placed to hear the case. Nor to my knowledge are there any proposals to alter Brussels II Revised to incorporate such a power, notwithstanding that the new Judgments Regulation No.1215/2012, which will take effect on 10^th January 2015, contains, by virtue of Recitals 23 and 24 and Articles 33 and 34, a comparable provision to Article 15 of Brussels II Revised enabling the court to stay proceedings on the basis that another jurisdiction was better placed to hear the case. So one can see that in relation to divorce cases the anomalous situation arises that there are no powers, in contrast to civil claims and children claims, to achieve a transfer to a court which is better placed to hear the case or otherwise is a more convenient forum. It is in the face of this iron inflexibility that the parties in divorce cases engage in such extensive, expensive and futile manoeuvres as have been demonstrated in this case.
18. The argument by the husband is a simple one. He says that nothing has changed since King J. made her order on 7^th November 2012. The petition issued by the wife on 13^th June 2014 was, in such circumstances, entirely illegitimate as the French judicial separation proceedings were still in being. Even if they were right at the end of their life expectancy, they were nonetheless completely valid, completely operative and in such circumstances the wife's petition was improper and illegitimate and therefore should be struck out. Even if there had not been a previous dismissal on 7^th November 2012, the petition should be struck out, this case falling squarely within Article 19(3) of Brussels II Revised. But in circumstances where the previous petition had been dismissed the case is a fortiori; the new petition is plainly a case of the husband being wrongly vexed twice and the case should be dismissed under the well-known principle explained in Henderson v Henderson [1843] 3 Hare 100, and the more recent authority of Johnson v Gore Wood [2000] UKHL 65. Therefore, Mr. Cook states that this is essentially an open and shut case where the petition should be summarily dismissed today.
19. The focus of the wife's resistance had been on the argument that the effect of the lapsing of the judicial separation proceedings was to dismiss them ab initio; that once lapsed they were treated in French law as never having existed at all. That argument found no support from the single joint expert instructed to opine on this argument. Indeed, on reading it, it struck me as extremely far-fetched. Even if the effect of lapsing was to declare that the proceedings never happened, it by no means followed that this took effect ab initio or ex tunc. That was certainly the view of the single joint expert.
20. When the matter came to be argued before me, I concluded having looked very carefully at Mr. Amos' argument, that what he was in effect saying was that where a litigant does not, in a bona fide way, pursue a suit by which he seises the court of his choice, then it cannot be said, or ought not to be said, for the purposes of Article 19(3) that the jurisdiction of the court first seised is "established". Unless such a principle were maintained, then it would be possible to issue proceedings otherwise than in good faith solely for the purposes of creating a legal filibuster. In this regard Mr. Amos draws support from the decision of Hedley J. in C v S [2011] 2 FLR 19. In that case the Italian husband had filed for judicial separation proceedings but had, in effect, shelved them. Hedley J. decided that in such circumstances there were no effective established Italian proceedings which vested in the Italian Court exclusive jurisdiction. He also determined that in fact there had not been proper service and therefore the Italian court had never in fact been seised for the purposes of Article 16 of Brussels II Revised.
21. In terms of the language used in judgment, Mr. Amos relies on the remarks of Hedley J. in paragraph 20 where he said:

"I have reminded myself that, in European jurisprudence, Regulations and Articles are often to be treated as living and purposive instruments and not always to be read as tightly as one might read an English statute. Certainly, I have come to the conclusion that Art 19 must be read purposively and, in my judgment, for a court to remain seised of a matter, there must in fact be existing proceedings before it. To construe the Article in any other way is potentially to make a nonsense of it by a court being seised of a matter about which it can do nothing unless a party revives it. If one took a jurisdiction like England and Wales, where strike-outs are not the subject of time limits, it could have an entirely absurd effect. For Art 19 to bear real meaning, in my judgment, it is essential that there be proceedings which can be properly described as 'existing' before the court at the relevant date."

22. I now turn to consider the facts of this case and their relationship with Article 19. It cannot be seriously disputed that from the time of the French Court of Appeal judgment on 22^nd November 2012, the husband has done more or less nothing in relation to the judicial separation proceedings. Can it be properly argued that the jurisdiction of the French court has been "established"? Mr. Amos argues that the verb "established" must mean more than the simple filing of proceedings in the other court. It must surely import, he argues, an obligation to progress those proceedings with due diligence, and expedition, particularly given that the subject matter of the proceedings, divorce, is so personally and emotionally taxing on the litigants concerned. He says that any other interpretation would enable people in divorce proceedings to file the equivalent of the notorious Italian torpedo and in effect prevent the necessary expeditious resolution of the disputes between the parties in circumstances where the avoidance of delay is one of the pillars on which Brussels II was originally erected.
23. It could be said that such an interpretation involves a departure not only from the literal wording of Article 19, but also the cases decided under its sister regulation, the Judgment Regulations, and in particular the decision of Gantner Electronic GmbH v Basch Exploitatie Maatschappij [2003] ILPr 37, which states in the head note at page 3 and in the judgment at 27, that "...lis pendens exists from the moment when two courts of different Contracting States are definitively seised of an action, that is to say, before the defendants have been able to put forward their arguments." That would suggest that it is simply the filing followed by service (where required) is sufficient to "establish" the jurisdiction of the court first seised, and that subsequent inactivity does not impugn or undermine that establishment. If that interpretation is right, then there is much scope to generate delay and to behave abusively, as Mr. Amos has convincingly persuaded me.
24. In such circumstances, bearing in mind the potential ramifications of this are potentially quite wide-ranging, I have decided that it would be appropriate in this case - and this will be the first time I have ever done so - to refer questions to the Court of Justice of the European Union. The questions will be referred to the court under Article 19(3)(b) of the Treaty on European Union and Article 267 on the Treaty on the Functioning of the European Union.
25. I have been given a draft of the questions, but Mr. Cook has not had the opportunity to give them as much consideration as he would like. I therefore propose to adjourn this case until 10.30 tomorrow morning when I will hear submissions as to the terms of the questions when, following such submissions, I will be in a position to conclude this judgment incorporating those questions.
26. In essence, however, the questions will be on the lines as identified by

Mr. Amos, although there may need to be a certain amount (and it could be quite considerable) of refinement having regard to the contribution that will inevitably be made by Mr. Cook.

LATER:

Tuesday, 21^st October, 2014

27. When I concluded my judgment last night I had indicated that I would allow Mr. Cook time to consider the proposed questions to be referred to the Court of Justice of the European Union. However, he has today, with my agreement, made submissions that go far beyond the terms of reference. He has produced an authority from the Court of Justice which he says answers the questions which I would refer. He has made submissions as to the precise steps that have or have not been taken by the husband in relation to the now expired judicial separation proceedings.
28. Before I deal with his authority, let me deal with the further elucidation that has been achieved before me of the steps taken in the French judicial separation proceedings. At the hearing before Judge Isabel Vanrell on 15^th December 2011, in her judgment she reminded the spouses in these terms:

"The terms of Article 1113 of the new Code of Civil Procedure provide that 'Within three months from the pronouncement of the order only the spouse who has presented the initial application may file for the divorce. In the event of reconciliation of the spouses, or if the proceedings have not been instituted within 30 months from the pronouncement of the order, all its provisions will be null and void, including the authorisation to institute the proceedings.'"

29. Immediately prior to that she had authorised the spouses to institute judicial separation proceedings. The actual document refers to "divorce proceedings" but everybody is agreed that that is an error, and that the reference was intended to be to judicial separation proceedings.
30. The meaning of this authorisation and this warning has been explained in a joint report which is in my papers, which explains that within three months of the non-conciliation order the applicant is the only one who can file what has been described as "a petition" (in French an assignation). It is then stated that following such three months' delay either party may file the assignation during a period of 27 months.
31. In this case it has become apparent that neither party has filed an assignation seeking a decree of judicial separation. It is not very surprising that the wife has not filed for one because a decree of judicial separation in France is the very last thing that she wishes to achieve. She wishes there to be a decree of divorce in England so that all issues, including the husband's claim under the Trusts of Land and Appointment of Trustees Act 1996, and including her own claim for relief for the children under Schedule 1 of the Children Act, can be heard in the same court so that - to quote the well-known words initially expressed in the Judicature Act 1925, section 43, but now found in section 49(2) of the Senior Courts Act 1981 - "all matters in dispute between the parties are completely and finally determined and all multiplicity of legal proceedings with respect to any of those matters is avoided." So it is hardly surprising that at no point has the wife filed an assignation for judicial separation in France.
32. It is completely inexplicable why the husband has not done this. In the course of his submissions Mr. Cook explained that the reason the husband did not seek the assignation which would have brought his requête for a decree of judicial separation to a conclusion was, according to Mr. Cook, because he believed it would lead to protracted litigation in circumstances where the wife had signified that she would put every obstacle in his way. In those circumstances I asked Mr. Cook why the husband did not simply withdraw his requête, to which the answer was: he could only do so with the consent of the wife. He was therefore, to use a phrase which derived from an opinion of a French Advocate-General in an unidentified case before the Cour de Cassation, a prisoner of his own procedure. The difficulty with that submission is that in the French judgment of 11^th July 2013 which dismissed the husband's divorce petition issued during the pendency of the judicial separation proceedings, the court stated this:

"[The Husband], having filed a petition for separation, cannot therefore alter his initial petition. If he wishes to divorce he must abandon the petition for separation and then file a divorce petition."

33. That is the translation of the French which appears in my bundle at section C, page 86, which in the original makes it even plainer that the obligation would be on him to "desist" in his demand for a decree of judicial separation before seeking a divorce.
34. That makes it tolerably clear to my mind that the withdrawal of the judicial separation proceedings was not in any way dependent upon the consent of the wife.
35. The case before the Cour de Cassation to which I have referred contains a remark by the Advocate-General in these terms.

"The result is that except in the event of a definitive and accepted withdrawal of his judicial separation requête and the filing of a new requête, this time for divorce, the petitioner is in some way a prisoner of his own requête. He cannot escape this situation by transforming his requête into an assignation for divorce."

36. That, likewise, demonstrates to me that it is in the hands solely of the husband to decide whether to withdraw his requête for judicial separation.
37. Mr. Cook relies on the terms of Articles 394 and 395 of the French Code of Civil Procedure which states that "... a plaintiff may, in all matters, discontinue his action in order to terminate the proceedings [but] … the discontinuance will take effect only upon the acceptance of the same by the defendant. However, the acceptance of the defendant will not be necessary where the defendant has not tendered any defence on the merits of the case or a plea of non-admissibility at a time when the plaintiff has discontinued his action." That also seems to suggest to me, on the facts of this case where it can hardly be said that the wife has tendered a defence to a mere requête for judicial separation on the merits, that the withdrawal of that requête does not require her consent.
38. Therefore, I am perfectly satisfied on the material before me that at all times it would have been open to the husband to have withdrawn his requête for judicial separation, but he did not do so. I was given no plausible or tenable reason why he did not do so. In such circumstances the view that I formed yesterday that the motive of the husband in his inactivity in relation to his petition was in order to stymie for as long as possible the ambition of the wife to petition for divorce in this country so as to enable all matters in dispute to be heard by one court at the earliest opportunity is considerably fortified.
39. As the submissions this morning proceeded, I grew ever more firm in the conclusion that I had reached yesterday that the state of affairs with which I am presented are little short of scandalous and require the soonest attention of the Court of Justice of the European Union. I find it impossible to conceive that the architects of the Brussels II Revised scheme could have intended the state of affairs with which I am presented to be tolerated.
40. Mr. Cook has relied on the decision of the Court of Justice of the European Union Cartier Parfum-Lunettes SAS & Anor v Siegler France SA & Ors [2014] ILPr 25, 359. That was a case concerning Article 27(2) of the Brussels Regulation 44/2001 of 22^nd December 2000. Article 27 contains for my purposes identical language to that in Article 19 of Brussels II Revised. The question that arose in this case was: what did the verb "established" mean, which of course is the question that I have determined should be considered by the Court of Justice of the European Union in this case in the specific circumstances which I have identified?
41. In paragraph 40 the Court of Justice says this:

"40. In the second place, as regards the purpose itself of [the Regulation] it must be recalled that one of the aims of that regulation, as is clear from recital 15 ... is to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given where a number of courts have jurisdiction to hear the same dispute. It is for that purpose that the European Union legislature intended to put in place a mechanism which is clear and effective in order to resolve situations of lis pendens. It follows that, in order to achieve those aims, Article 27 ... must be interpreted broadly..."

42. At paragraph 43 it is stated:

"43. Where the court first seised has not declined jurisdiction of its own motion and no objection of lack of jurisdiction has been raised before it, the fact that the court second seised declines jurisdiction cannot result in a negative conflict of jurisdiction since the jurisdiction of the court first seised can no longer be contested."

43. At 45 it is stated:

"45. Having regard to all of the foregoing considerations, the answer to the question is that Article 27(2) of [the Regulation] must be interpreted as meaning that, except in the situation where the court second seised has exclusive jurisdiction by virtue of that regulation, the jurisdiction of the court first seised must be regarded as being established, within the meaning of that provision, if that court has not declined jurisdiction of its own motion and none of the parties has contested its jurisdiction prior to or up to the time at which a position is adopted which is regarded in national procedural law as being the first defence on the substance submitted before that court."

44. On that basis Mr. Cook submits that "established" means no more than that the court first seised has accepted jurisdiction; that it has not declined it of its own motion and none of the parties has contested its jurisdiction is sufficient. The fact that there may have been delay, as I have described, does not alter the position one whit, Mr. Cook argues. I disagree. This authority does not address the situation which I have described as abusive and which I consider the Court of Justice of the European Union needs to address as a matter of urgency. This decision does not address the situation with which I am confronted, namely where the husband has made a mere requête, yet at no point, even though he was authorised to do so by the court, has filed an assignation which would have brought the proceedings to a conclusion. That is a state of affairs, in my judgment, outwith the contemplation of the Court of Justice in Cartier Parfum, and the authority does not alter my decision as to the need for clarification from Luxembourg.
45. Over four years has elapsed since the separation of these parties, and the parties are no further forward in securing any kind of resolution of their disputes - not even the country in which they should be divorced. In such circumstances I am satisfied that the questions as drafted by Mr. Amos, as amended by me, should be referred to the Court of Justice of the European Union. Those questions are appended to this judgment.
46. Finally I request that the Court of Justice deals with these questions under the expedited procedure pursuant to Rule 105 of the Court's Rules of Procedure. My reason for so requesting is that the great delay engendered by the jurisdictional manoeuvrings has undoubtedly exacted a serious emotional toll not only on the adults but more significantly on the minor children whose interests I consider are being harmed by this dispute.

LATER:

47. I now give judgment on certain ancillary points. Following my judgment given earlier this afternoon, I am asked to give some further directions. Pursuant to the recommendations from the Luxembourg Court dated 6^th November 2012, paragraph 29, it is plain to me that the lodging by me of a request for a preliminary ruling requires me to stay the wife's existing divorce petition filed by her on 13^th June 2014. I am clearly of the view that I must order a stay, and that a stay will operate to stay not just the suit for divorce itself, but all ancillary claims. In this regard I am satisfied that the view expressed by Bodey J. in AB v CB (Divorce and maintenance: discretion to stay) [2013] 2 FLR 29, 32 is correct. He stated:

"If the petition is stayed, it follows in my view that any application for maintenance pending suit is stayed with it, as the latter has no independent life."

48. Notwithstanding that it is established in our law that there is jurisdiction to award maintenance pending suit even where there is a challenge made as to the jurisdiction of the court to entertain the main suit, I take the view nonetheless that a stay, as is required by my reference, must be all-embracing and that it is not appropriate for me to seek to hive off certain aspects of the dispute from the general effect of the stay. In those circumstances I am clearly of the view that it would not be appropriate for this court to take any steps to advance the progress of the main suit or the ancillary claim made within it for equitable distribution or spousal support. The stay must extend to a prohibition on giving directions as to the progress of the ancillary claim, and also prevents me, in my view, from directing that there should be an FDR which is a species of judicial mediation. I say that with a certain amount of regret because, as must be obvious from what I have said hitherto, this is a case that is crying out for a consensual and, if necessary, mediated solution. Mrs. Justice King begged the parties to resolve their differences and similar sentiments have been expressed recently by Moor J. I join in what is now turning into a chorus of requests that these parties should seek to resolve their differences without this elaborate litigation continuing for a minute longer than is necessary.
49. In circumstances where I have indicated that the wife's English divorce petition should be stayed pending the reference to Luxembourg, by the same token the husband's request for a French divorce issued at 8.20 a.m. on 17^th June 2014 should be similarly stayed, although that decision is of course not mine to make. I will, however, make an order directing both parties to seek to persuade the judge hearing the first court appointment in France on 2^nd December 2014 to stay those proceedings until the determination of the reference made to Luxembourg.
50. Once the judicial separation proceedings in France had lapsed, the husband immediately terminated making the payments of interim spousal support of €5,000 per month that had been ordered by Judge Isabel Vanrell on 15^th December 2011. At the same time he discontinued the payments required by the Child Support Agency in relation to child maintenance. Since then the wife has had no support from the husband, either for herself or for the children. This is a shocking state of affairs.
51. As things stand, there is a hearing in December before District Judge Hess to consider questions of child maintenance, assuming that the obstacles thrown up by the Child Support Act 1991 can be successfully surmounted, and for school fees, a claim for which is not inhibited by the terms of the Child Support Act.
52. Notwithstanding the famous decision of Johnson J. in Philips v Peace [2005] 1 WLR 3246, I take the view that the complete absence of support for the wife and children would entitle me today - and certainly I take the view that it would be proper for me today - to make an order for an interim lump sum to cover the position that the wife finds herself in.
53. However, under Article 6 of the European Human Rights Convention, the husband is entitled to a fair trial and I am persuaded by Mr. Cook that to spring such an interim lump sum on him where he has had no notice that any such application would be made, would be unfair and in possible violation of that guaranteed right. However, I want to make it perfectly clear to the husband that I do not regard District Judge Hess as being inhibited from making an interim lump sum under the Children Act to cover the support of the children in its wider sense as explained in the decision of the Court of Appeal in Re P (Child: financial provision) [2003] 2 FLR 865.
54. I note that the husband has recently made an open offer which would provide the wife, after payment of school fees at the children's existing school, £20,000 per annum in child maintenance and that he expects imminently to obtain new employment paying at a rate of £100,000 per year gross. I think the husband's good faith can be judged by whether he makes voluntarily an appropriate payment to the wife between now and the hearing fixed for 18^th December, having regard to the fact that until very recently he was paying €5,000 a month under the decision of Judge Vanrell in France, as well as child support as assessed by the Child Support Agency of £428 per week. I have made my position clear. If the husband does not make sensible interim provision to the wife between now and the next hearing, then I am expecting District Judge Hess to draw his own conclusions.

LATER:

55. Mr. Cook applies for permission to appeal against my decision to make a reference to the Court of Justice of the European Union and, consequentially and inevitably, to adjourn his client's application to strike out the wife's petition.
56. Under Family Proceedings Rules Part 30.3(7) permission to appeal may only be given where the court considers the appeal would have a real prospect of success, or where there is some other compelling reason why the appeal should be heard.
57. In my judgment, there is no prospect of this appeal, even assuming it could be brought on before the Court of Justice of the European Union answered the questions I have referred to it, having any prospect of success let alone a real one. To my mind I have identified, I hope with clarity, what I regard as a real defect in the architecture established by the Brussels II Regulation which, on any view, requires the attention of the Court of Justice. I do not agree with Mr. Cook that the Regulation is in its terms clear. I believe that even a literal interpretation of the concept of establishment is hard to square with the situation which we have here which is where the husband has made a mere request (requête) for judicial separation, but has chosen not to file the assignation - a state of affairs which is, in my view, completely outwith the contemplation of the architects of either the Judgments Regulation or its sister Regulation, Brussels II Revised. Nor do I feel there is some other compelling reason why the appeal should be heard. There is, in my view, a compelling reason why the matter should be addressed by the Court of Justice of the European Union and I see no good reason why that course should be deflected by yet further litigation between the parties in the Court of Appeal. The application for permission to appeal is refused.
__________

ANNEX

REFERENCE QUESTIONS

1. For the purposes of Article 19(1) and (3), what does "established" mean, in circumstances where:-

a. the applicant, in the proceedings in the court first seised ("the first proceedings"), takes virtually no steps in the first proceedings beyond the first court appointment, and in particular does not issue a Petition (Assignation) within the time limit for the expiry of the Request (Requête), with the result that the first proceedings expire undetermined by effluxion of time and in accordance with the local (French) law of the first proceedings, namely 30 months after the first directions appointment;

b. the first proceedings expire as above very shortly (3 days) after the proceedings in the court second seised ("the second proceedings") are issued in England, with the result that there is no judgment in France nor any danger of irreconcilable judgments between the first proceedings and the second proceedings; and

c. by virtue of the United Kingdom's time zone the applicant in the first proceedings would, following the lapse of the first proceedings, always be able to issue divorce proceedings in France before the applicant could issue divorce proceedings in England?

2. In particular, does "established" import that the applicant in the first proceedings must take steps to progress the first proceedings with due diligence and expedition to a resolution of the dispute (whether by the Court or by agreement), or is the applicant in the first proceedings, having once secured jurisdiction under Articles 3 and 19(1), free to take no substantive steps at all towards resolution of the first proceedings as above and free thereby simply to secure a stop of the second proceedings and a stalemate in the dispute as a whole?

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