LM v KD

Jurisdiction over parental responsibility ordinarily lies with the courts of the child’s habitual residence. A court first seised of matrimonial proceedings does not retain jurisdiction over parental responsibility merely because one parent later seeks urgent relief there. Prorogation requires unequivocal acceptance by all relevant parties when the court is seised and must be in the child’s superior interests.

Where parental-responsibility proceedings are pending in one Member State and status proceedings in another, child-maintenance proceedings are ancillary to the parental-responsibility proceedings. A claim concerning sale of jointly owned immovable property is within the exclusive jurisdiction of the courts where the property is situated. A stay of related proceedings remains discretionary, but delay and a merely technical procedural advantage may justify refusing it.

The husband and wife, both of Italian origin, were separated and involved in connected proceedings in England and Italy. The appeals concerned two English proceedings: the wife’s application under Schedule 1 of the Children Act 1989 for school-fees and child-maintenance orders, and her claim under the Trusts of Land and Appointment of Trustees Act 1996 concerning their London home.

The husband argued that the Italian court, first seised of judicial-separation proceedings, had jurisdiction over the child-related financial issues and that the property claim should be stayed. The lower courts rejected those arguments. By the time of the appeals, the Italian courts had declined jurisdiction over parental responsibility and child maintenance. The central issues were whether England or Italy had jurisdiction and whether the English proceedings should be stayed.

1. Schedule 1 appeal. The appeal against District Judge Jenkins’s order was dismissed. Article 19(2) of Brussels IIA required the English court, as the court second seised, to stay while the Italian court’s jurisdiction was being established. That obligation no longer applied after the Italian court had unequivocally declined jurisdiction, a decision upheld on appeal. Requiring a further stay pending a final ruling by the Italian Collegio would leave the parties without an available forum. The court was entitled to adopt a sensible and pragmatic approach.
2. Jurisdiction under Article 12 of Brussels IIA had not been prorogued to Italy. Acceptance had to be unequivocal and made by both spouses and holders of parental responsibility when the Italian court was seised. The wife had expressly challenged Italian jurisdiction at that stage. Her later willingness to seek urgent relief did not satisfy Article 12. In any event, jurisdiction had to be in the child’s superior interests. The child was habitually resident in England, and the English court had already dealt extensively with parental responsibility.
3. Applying A v B [2015] 2 FLR 637, jurisdiction over child maintenance lay with the court exercising jurisdiction over parental responsibility, not with the court dealing with the parents’ status. There was no material distinction from that case. Any irregularity in the admission of an expert report did not affect the result.
4. ToLATA appeal. The appeal against HH Judge Parfitt’s refusal of a stay was dismissed. The parties’ proprietary rights arose from the express trust declaration in the TR1, not from their matrimonial relationship. The claim concerned rights in rem in immovable property and fell within Article 24(1) of Brussels I Recast. Following Komu v Komu [2016] 4 WLR 26 and Magiera v Magiera [2016] EWCA Civ 1292, exclusive jurisdiction lay with the English courts because the property was in England.
5. Related Italian proceedings gave the English court a discretionary power to stay under Article 30 of Brussels I Recast. The husband had conceded exclusive English jurisdiction over the London property, and the Italian court had confirmed that the property issue fell outside its proceedings. The refusal to stay was within the lower judge’s discretion. The potential for delay and the conclusion that the application sought a technical advantage provided cogent reasons to proceed.
6. The Schedule 1 proceedings were directed to an urgent hearing, and the ToLATA proceedings were directed to a further case-management hearing. Consequential orders, including costs, were to be agreed or submitted in writing.

• High Court (Family Division): appeals from orders of District Judge Jenkins dated 22 March 2017 and HH Judge Parfitt dated 12 May 2017 dismissed.
• Lower courts: District Judge Jenkins held that England had jurisdiction over the Schedule 1 application. HH Judge Parfitt refused a stay of the ToLATA proceedings.