EA v AP

Under the Maintenance Regulation, the lis pendens rule must be applied to prevent irreconcilable judgments. It is not applied mechanically, but the protective regime for maintenance creditors does not override jurisdictional requirements. Where the court first seised has declined jurisdiction over child maintenance, but that position remains subject to a pending challenge, the jurisdiction is not established for the purposes of Article 12. The second-seised court must stay its proceedings.

The parties were Italian nationals who had lived throughout their marriage in England. The husband began separation proceedings in Milan before the wife issued English financial proceedings and later a Schedule 1 application concerning maintenance and capital provision for their children.

The Italian court accepted jurisdiction over the separation and the wife’s maintenance but stated that it lacked jurisdiction over child maintenance. The husband challenged that position before the Italian Supreme Court of Cassation. The issue was whether Article 12 of the Maintenance Regulation required the English Schedule 1 proceedings to be stayed.

1. Stay ordered. The Italian court was first seised. The English court therefore had to determine whether the Italian court’s jurisdiction over child maintenance had been established for Article 12 purposes.
2. The Italian ruling was treated as a determination affecting jurisdiction because the child-maintenance application could not progress while it stood. The ruling remained subject to challenge before the Supreme Court of Cassation.
3. The Maintenance Regulation provides a protective regime for maintenance creditors, but that protection does not override its jurisdictional requirements. Article 12 must be read in light of its fundamental purpose of preventing irreconcilable judgments.
4. The court approved the persuasive reasoning of Moore v Moore [2007] EWCA Civ 361. A second-seised court should not proceed while the first court’s jurisdiction remains unresolved through a pending challenge. It made no difference that the challenge was not an appeal in the strict sense or that the stay was mandatory rather than discretionary.
5. The proposed interim English order, intended to lapse if Italy accepted jurisdiction, was rejected. It could create conflict between the courts and improperly invite the Italian court to take account of English proceedings or quantum.

The court recognised the hardship caused to the wife, but concluded that a stay was the only principled means of avoiding jurisdictional conflict. The proceedings were stayed because the Italian jurisdiction was not established.