M v V

Where parties have agreed that disputes concerning a child’s maintenance are to be dealt with in a specified Member State, Article 23 of Brussels I may confer exclusive jurisdiction on that State. A party cannot bypass that arrangement by commencing fresh Schedule 1 proceedings elsewhere, particularly where an existing order can be registered and varied. Variation of a foreign maintenance order following a change of circumstances is not necessarily irreconcilable with the original order or a review of its substance. The availability of that alternative remedy is material. If fresh proceedings were available, the court might nevertheless decline to exercise jurisdiction where the child and primary carer will live abroad and the foreign court is plainly better placed to determine future support.

The applicant mother sought financial provision for her daughter under section 15 of and Schedule 1 to the Children Act 1989. The father challenged the English court’s jurisdiction. The parties had previously entered into a French agreement concerning the child’s maintenance, which was approved and incorporated into an order of the Paris family court. The agreement included a commitment not to seek maintenance proceedings in England and provided for mediation in the French court.

At the time of the application, both parents were habitually resident and domiciled in England for Brussels I purposes, but the mother intended to relocate with the child to Paris. The central issue was whether the French agreement and order, and the jurisdiction clause within them, prevented fresh Schedule 1 proceedings in England.

1. Application dismissed. The English court had no jurisdiction to entertain the mother’s fresh Schedule 1 summons.
2. Applications under Schedule 1 were applications for maintenance for the purposes of Council Regulation (EC) 44/2001 (Brussels I). Although, absent the French agreement and order, the English court would have jurisdiction under the maintenance provisions, Article 23 was fully engaged.
3. The agreement and the French order, read together and in context, showed that the parties had agreed that disputes concerning the child’s maintenance would be dealt with in France. The reference to mediation in the family court meant the French family court. The jurisdiction was therefore exclusive.
4. The French order could be recognised and enforced in England and could, in principle, be registered and varied there. A variation based on changed circumstances would not be irreconcilable with the French order and would not infringe the prohibition on reviewing its substance. The mother’s proper course, if she wished to proceed in England, was registration followed by an application for variation.
5. The mother was bound by the agreement and order. The court did not need to decide whether a party could contract out of the Children Act in the abstract, because the mother had an available remedy through enforcement or variation of the French order and could apply to the French court for further provision.
6. Alternatively, if jurisdiction existed, the court would not exercise it to make a substantive order. The child and mother were expected to live in Paris, and the French court was better placed to determine the child’s future support.