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CONFLICT OF LAWS/ANCILLARY RELIEF: J v P [2007] EWHC 704(Fam)

Sep 29, 2018, 16:33 PM
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Date : Mar 30, 2007, 11:19 AM
Article ID : 85391

(Family Division; Sumner J; 30 March 2007)

The father had issued a petition in Italy requesting, inter alia, a decision recognising the child as his son and a decision that he should contribute to the child's maintenance. The mother, who lived in England with the child, was unaware of the Italian petition, which had not been served on her, when she applied to the English court under Children Act 1989, Sched 1 for financial provision from the father. The father initially accepted that the mother's application would proceed, but then sought a stay of the English action, under Brussels I, on the basis that his Italian action was first in time. The mother argued that the father's original petition had concerned status, not maintenance, and that the two sets of proceedings had not involved the same cause of action. She went on to argue that the overwhelming merits pointed to England as the proper jurisdiction in which they should be heard and determined, not least because the father had agreed that England was to have jurisdiction.

The father had raised the question of maintenance in his Italian petition, although the primary purpose of the petition had been to raise issues of status. If there had been doubt about that, the decision would have been deferred to the court in which the petition had been issued, the Italian court being much better placed to rule on the question of its own jurisdiction. In accepting that the mother's English application would proceed, the father had agreed to the jurisdiction of the English court, making a clear choice. However, following Erich Gasser v MISAT [2003], which was binding on the court, where a second court had jurisdiction granted to it by agreement, nevertheless the proceedings had to be stayed. There was a range of practical points arising in London suggesting that England was the forum conveniens, but the court could not rely upon any aspect of the doctrine of forum conveniens, given that Brussels I applied.

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