An Italian mother living in London has failed in her attempt to apply for child maintenance in this country, after a judge ruled that the English courts lacked jurisdiction.
In EA v AP she and her husband, also Italian, enjoyed a wealthy lifestyle in London. He worked as a hedge fund manager, and the couple owned several properties in the city, making them habitually resident in the capital. They have two children, now aged nine and four.
After the couple split, the husband filed a petition for separation in the Italian courts in February last year, beginning the divorce process under Italian law. Meanwhile the wife launched her own proceedings for financial support in the English courts, on the basis of their habitual residence in the UK. She was apparently unaware of her husband’s action in Italy at the time.
However, since the husband’s application for separation had already been filed in Italy, it took legal precedence under Brussels II Revised, an EU regulation which governs conflict of laws in international family cases. The wife’s application was therefore stayed (suspended).
A complex series of proceedings continued, characterised by Mrs Justice Parker as “considerable jockeying for position”.
In October, the wife applied to the Child Support Agency, and then filed for child maintenance, under Schedule 1 of the Children Act 1989, which governs financial provision for children. She applied for a lump sum, periodical payments, and the transfer of property “for the benefit of the children”.
At a hearing in Italy in November, a judge declared that “there is no doubt as to the jurisdiction of the Italian court to examine the filed petition for separation as both parents are Italian”.
However, it also held that the court would not “issue any ruling on the custody of the minor children or the related maintenance payments, holding that this court does not have jurisdiction to do so.”
The husband disputed this claim, saying that the original Italian phrasing had been an expression of opinion only and that the courts could have jurisdiction in child maintenance. He filed a petition with the Italian Supreme Court, which the wife’s lawyer disputed. The case is continuing.
Meanwhile, the husband also disputed a Child Support Agency ruling that he should pay £400 per week in maintenance for the couple’s two children. He claimed the Italian courts were already ‘seised’ (responsible for) child maintenance, as he had filed his original petition before the wife.
At the High Court, Lady Justice Black considered whether or not the English courts could deal with the wife’s application under Schedule 1 of the Children Act, given the provisions of EU regulation (EC) No 4/2009. This deals with the legal issues surrounding the payment of maintenance.
Article 12 refers to legal precedence in questions of jurisdiction:
“Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised [the court in which proceedings were first filed] shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.”
Lady Justice Black concluded that the jurisdiction of the English courts had not been established, but noted:
“I recognise that this may cause hardship and injustice to the wife, but it is, in my view, the only principled way in which the dispute can be determined.”