C – A Child. The Family Court rejects reflexive application of the Maintenance regulation’s lis pendens rules.

C (A Child) [2021] EWFC 32 involves an application brought by a mother (M) against the father (F) in relation to their daughter (C). M was born in Russia and is a citizen of Finland. Her mother and step-father live in France, where C was born in August 2014. F was born in Sweden and is resident in Monaco. Does the English court have jurisdiction to hear M’s application?

F had made his own, clearly pre-emptive application (ia involving a denial of fatherhood – later corrected by the DNA testing) in Monaco about a week earlier than M’s. That application is translated at [3] and it unfortunately illustrates the quasi inevitably acrimonious nature of these kinds of applications. In March 2021 the courts at Monaco declared they had jurisdiction for the father’s parentage and subsidiary maintenance claim. The father incidentally in late December 2020 also issued pre-emptive proceedings in Grasse, France, with a view to establish an EU court being seized prior to Brexit date.

F cites a wide variety of CJEU authority re the maintenance regulation’s forum shopping potential which eventually fails, inter alia for [47] it is the maintenance creditor, not the debtor, which the EU system aims to protect (reference also to Villiers v Villiers).

At 15 ff counsel for F argues reflexive effect of the Maintenance Regulation’s lis pendens rule, referring pro inspiratio to Ferrexpo. Munby J adroitly describes the theory of reflexive effect as being one of domestic, i.e. English law, not EU law. He rejects reflexive effect of the lis pendens rules, mostly [57] because of the very different nature of maintenance obligations. (For similar reasons he distinguishes [58] the Court of Appeal’s reflexive effect of the Lugano lis pendens rules in Privatbank – which in my view was wrongly decided).

Argument rejected therefore for reflexive effect of the EU Maintenance Regulation 4/2009.  Habitual residence of M was found to be in E&W, amongst an acrimonious parties’ to and fro on abusive forum shopping and maintenance tourism.

An interesting judgment.

Geert.