(Family Division, Parker J, 14 March 2014)
Jurisdiction – Financial remedies – Maintenance – Couple married in Dubai where they both lived – Husband issued divorce proceedings in England – Whether the English court had jurisdiction pursuant to Arts 4, 5 and 7 of the Maintenance RegulationThe court held that it had jurisdiction to determine the wife’s maintenance claims by virtue of Arts 4, 5 and 7 of the Maintenance Regulation.
The English husband and Ethiopian wife were married in 2010 in Dubai and they subsequently had a son together. Their last common residence was in Dubai. When the marriage broke down the husband issued divorce proceedings in England and the wife acknowledged service, accepting the jurisdiction.
The wife applied for an interim maintenance order for herself and the child and for a legal services order. The husband claimed that the English court lacked jurisdiction. It was common ground that the petition was based upon the husband's domicile as claimed by him and was governed by Art 3(c) of the Maintenance Regulation. The wife had to establish jurisdiction under Arts 4, 5 and 7 of the Regulation which were separate and not to be taken together, an exception to the rule.
The court found that it had jurisdiction to determine the wife's claims by virtue of Arts 4, 5 and 7 of the Regulation.
For the purposes of Art 4, agreement could not mean agreed in the contractual sense in terms of offer and acceptance. Correspondence or other communication in writing had to demonstrate an agreement that the English court should determine matters. In respect of Art 5, a defendant could not submit to the jurisdiction of the court by reason of having acknowledged service for the purpose of disputing the court's jurisdiction. Exceptional in respect of Art 7 meant by way of exception and did not mean extraordinary.
In relation to Art 4, the clear inference from the petition was that the husband had accepted and proposed that the English court should have jurisdiction in relation to maintenance. It was not a meaningless tick-box exercise. The wife had been plainly entitled to rely on the husband's representations. It was possible to conclude from the correspondence that there was a clear, joint, several and mutual decision that the parties agreed for the English court to determine the maintenance claims.
Although in relation to Art 5, the simple acknowledgement of service did not give the court jurisdiction, the husband had acceded to the court making an order in maintenance pending suit proceedings which required him to file a statement of his means. By acceding to that order, the husband had entered an appearance for the purposes of Art 5 and had not challenged the jurisdiction within the 14 days thereafter.
In respect of Art 7 the only conclusion which could be drawn from the way in which the husband had conducted himself was that his main concern was to inhibit the ability of the wife to litigate. The difficulties for the wife to litigate effectively in any other jurisdiction in her circumstances would be immense and insurmountable. It was wholly unreasonable to expect her to do so.
The findings in relation to Arts 5 and 7 established jurisdiction in respect of the child as well as the wife. Maintenance pending suit would be ordered at a rate of £2,000pm. In addition, the wife was awarded all of her costs on a standard basis.
Neutral Citation Number:  EWHC 4857 (Fam)Case No. TN13D00521IN THE HIGH COURT OF JUSTICEFAMILY DIVISIONRoyal Courts of Justice14th March 2014
B e f o r e :
MRS. JUSTICE PARKER
MATTHEW DAVID BALDWIN
- and -
SELAMAWIT SEMU BALDWIN
(Transcript of Transcribed by BEVERLEY F. NUNNERY & CO.Official Court Reporters and Audio TranscribersOne Quality Court, Chancery Lane, London WC2A 1HRTel: 020 7831 5627 Fax: 020 7831 email@example.com
MR. N. WILKINSON (instructed by Alderson & Associates, Ras Al Khaimah, UAE) appeared on behalf of the Petitioner
MISS L. MOTTAHEDAN (instructed by Expatriate Law) appeared on behalf of the Respondent
MRS. JUSTICE PARKER
This hearing is about jurisdiction in a case relating to maintenance obligations for a wife and child. It was listed for two and a half hours yesterday. It took almost twice that time. Many, many different points were run. I had to adjourn judgment until today to the great inconvenience of my listed case. This morning I received, without notice, an application from Mr. Wilkinson, who appears on behalf of the husband, that I should abandon these proceedings on the basis that I have considered without prejudice material which should not have been before me, and re-list the case for hearing in front of another judge, and therefore these proceedings should be wholly derailed.
I have come to the view that this husband will run any argument, and employ any tactic, to avoid his responsibilities to his wife and child, and that he has deliberately sought to engage in these proceedings so as to starve her of litigation funds. I reject the application not only because it is made at the last possible moment, but because the information contained in correspondence to which the husband now objects has been before the court since a hearing in Tunbridge Wells in January.
The correspondence records that on 20th June 2013 a meeting took place between the wife's English solicitors in Dubai who represent her in this jurisdiction and the husband in person. The wife's solicitors referred to an interim financial maintenance arrangement which had been agreed between the parties. Apart from recording that fact, nothing which passed between the parties up until that meeting, or in that meeting, is revealed. The husband confirmed five days later by email that in the interim he was happy to pay the sum agreed of AED 10,000 (Arab Emirates Dirhams) per month as maintenance. He now says that he was bullied or coerced into that agreement by the wife's solicitors since he did not have legal advice. I have pressed Mr. Wilkinson for a precise date as to when the husband first sought advice from his current solicitors, or indeed any solicitors. I was told yesterday that it was no later than 4th July. That date appears in the papers. I still do not have a precise answer. I note that in R v Manchester Crown Court (ex parte R) (Legal Professional Privilege)
 1 WLR 832 Lord Taylor LCJ held that a record of a client appointment in a solicitor's appointments diary was not subject to privilege and could be required to be produced under the Police & Criminal Evidence Act 1984. In The Queen on the application of Miller Gardner Solicitors v Minshull Street Crown Court
 EWHC 3077, Mr. Justice Fulford (as he then was) ruled that information which does not relate to the obtaining, or giving, of a legal advice and formalities did not breach legal professional privilege.
I am unable, on the basis of the present information, to assume that the husband did not have legal advice from some source at the date of that meeting. At the moment I can take it no further. However, if Miss Mottahedan, on behalf of the wife, wants to pursue this matter, I would be receptive to an application.
There is also reference in Miss Mottahedan's skeleton argument to alleged exchanges between the husband and wife with regard to jurisdiction. I have no evidence whatsoever of that. I said yesterday morning that I completely ignore this assertion for the purposes of this hearing, and I shall do so. I rely, as will appear from the contents of this judgment, on later events and on the documents. I do not assume that the agreement for interim maintenance, whether challenged or not, demonstrates that the husband had invoked the jurisdiction of the English court to award maintenance at that point. Indeed, the correspondence is entirely consistent with this being a consensual arrangement to meet the wife's immediate needs. The existence of the agreement is common ground. Although Mr. Wilkinson says it is vitiated by duress, that is a totally different point. The husband has not complied with the agreement but paid some monies to the wife for the support of herself and the child until October 2013, and then ceased paying her. No clear explanation has been given for that. Mr. Wilkinson accepted yesterday that his client, without prejudice to the jurisdictional issues, does accept responsibility to maintain his child but not his wife, but could not explain why he is currently paying no maintenance.
I make no criticism of Mr. Wilkinson for advancing every argument at his client's disposal because I am sure that he is doing his best to represent his client's interests, on instructions, in the best traditions of the Bar. However, as I have already commented, this court process has taken considerably longer than was originally envisaged.
I reject the husband's application now to abandon these proceedings.
This is a trans-national case which concerns an Ethiopian wife and mother presently in Ethiopia with the parties' baby son, Joshua (who was born in Dubai on 1st February, 2013), and an English husband and father who is now living and working in Indonesia, I am told. Both the husband's solicitors and the wife's solicitors practice in Dubai and have expertise in English/Dubai cases.
The parties were married on 4th July, 2010 in Dubai. Their married life was in Dubai and Bahrain. Their last common residence was Dubai. The husband has issued divorce proceedings in this jurisdiction. There is some debate as to the status of these proceedings, to which I will later turn. At the moment these are extant proceedings. The wife has acknowledged service and accepted the jurisdiction here. She has issued proceedings for an interim maintenance order for herself and the child and for a Legal Services (Funding) Order. The husband now says that this court has no jurisdiction to make an order for maintenance and legal funding for the wife. He says also that there is no jurisdiction to make an order for Joshua but presses that case less forcefully.
The parties were married for nearly three years before Joshua was born. The husband has described the marriage as "rushed"; and that it took place, he says, because of the attitude of the Dubai authorities to cohabiting couples. The husband has also described it as a marriage of "convenience", but I do not know what he means by that. The wife says she had worked in Dubai as a hairdresser. The husband says that she has never worked to his knowledge and he claims that she was a prostitute. I am sure that the wife denies that. But, even if it were true, it has nothing to do with her claim for support. The husband married her and she has borne their child. The husband's assertion does have considerable relevance to the wife's ability to litigate in other jurisdictions, which is one of the central issues in these proceedings.
These assertions are also material because it is clear to me that the husband wants to downplay the significance, the relevance and the importance of this marriage, and the wife's claims. That is apparent from the chronology and from his stance, through Mr. Wilkinson, in these proceedings. I will not decide this case on the merits because this is not a merits-based issue. It is a jurisdictional issue and a forum issue. But the husband's attitude to the wife is an important backdrop to understanding the way in which these proceedings have continued and the way in which he has represented his position in proceedings in this country.
According to the wife, the husband left her shortly after Joshua was born, after some very aggressive behaviour. I form no conclusion as to whether that is true or not. That was after, she says, he told her that he wanted her to leave. He then told her to leave the matrimonial home immediately and to take the baby with her. The husband disputes that he then left the parties' home in June 2013 and cancelled the lease. The husband's case is that she left him. The wife says that she did not know where the husband was because he left Dubai at some point, having been in steady employment there. The round table meeting, to which I have referred, took place on 20th June. There is subsequent correspondence. Then, without any notice, on 4th July, 2013 the husband signed an English divorce petition which contained a financial remedy application. That was sealed on 23rd July, 2013. His notice of acting in person says that he is being advised and assisted by Dubai solicitors Messrs. Alderson & Associates, who instruct Mr. Wilkinson in these proceedings.
The husband's petition is brought the basis of the wife's behaviour. He relies on his English domicile as the basis of jurisdiction. At Part 10, after the prayer for dissolution, the petition continues on the printed form, "3. Financial order. (If you wish to make an application for a financial order)". He has ticked the box "the petitioner may be granted the following financial orders --" and then the following boxes are ticked: an order for maintenance pending suit/outcome; periodical payments order; secured provision order; lump sum order; property adjustment order; order under ss.24(b), 25(b), or 25(c) of the 1973 Act or pension sharing/attachment order; and then (b) for the children, (which box is ticked), and thereafter he has ticked: a periodical payments order; a secured provision; a lump sum order; a property adjustment order. The supporting note to the Part 10 prayer records, "The prayer of the petition is your request to the court confirming what you are applying for". Because it had not been sealed and issued, the petition was not served on the wife until after 23rd July.
On 7th July 2013, an e-mail from the wife's solicitors to the husband referred to the fact that she was not receiving maintenance as she had expected and that she hoped that financial and other matters could be agreed amicably to avoid unnecessary costs. It was recorded that the wife was just about to lose her home because the husband had not renewed, and said that he would not renew, the tenancy, and that she had no financial means to support herself and the baby. It was said that if there was no maintenance as she expected and confirmation that he would additionally meet her rent from 1st August (that confirmation to be received by Wednesday, 10th July) "she will have no option but to apply to the court, UK or Dubai, for financial support from you. Depending on the jurisdiction in which the claim is made, this may include backdated maintenance". At that point, of course, she was not aware of the husband's English proceedings.
On 24th July, I accept still in ignorance of the English proceedings, the wife issued a divorce petition in the United Arab Emirates. She was served with the husband's UK petition on 28th July. On 31st July, 2013 she and the baby, she says, were evicted from the former matrimonial home. She remained in Dubai staying with her sister and brother-in-law. On 13th August the husband stopped returning her 'phone calls and e-mails. The husband says that there was an agreement that she and the baby would return to her family in Ethiopia. The wife denies that. There is no reference anywhere in the written material to an agreement that the wife and child live in Ethiopia, until the husband filed a statement on 23rd January 2014 late on in the process.
On 1st August, 2013 the husband's solicitors wrote to the wife's solicitors stating that at the 20th June meeting the wife had made a proposal of maintenance with which their client was not happy. They said they were happy to deal with financial issues by way of voluntary disclosure and would ask the wife's solicitors to confirm if they were also willing to do so and suggested that this be undertaken by way of an exchange of signed Forms E so that if matters could not be resolved, at least the forms had been completed for submission to the court ultimately. They asked whether or not the wife had vacated the matrimonial home.
On 4th August the wife filed her acknowledgement of service of the petition.
In the acknowledgment of service the wife said that she disputed the grounds for divorce as unreasonable behaviour and wished to be in a position to challenge that if it ever became necessary in the future, but accepted the jurisdiction of the English court. The acknowledgment made reference to the Dubai proceedings.
On 2nd September the husband's solicitors wrote again, noting that no response had been received to their letter of 1st August and stating that they were going to apply to the court for an order for deemed service. They wished to discuss financial arrangements. They said that their client was no longer living in Dubai as he had taken a new position in Asia. There was no indication as to which of the many countries in Asia he was living in. They said that the husband would need to cancel the residence visas.
The wife's solicitor responded on 3rd September that the husband had confirmed in writing on 24th June – as is correct - that he was agreeable to paying the wife AED10,000 per month. That was when she was in the matrimonial home. The solicitor stated that the wife was in a very difficult position and invited him to put forward backdated proposals for the housing of the wife and child and to pay backdated and ongoing maintenance. If these sums were not provided within seven days of the date of the letter, he was put on notice that the wife would make an urgent application to the court for maintenance pending suit, interim periodical payments, and a Legal Services Order. They said that they relied on the written agreement, and that it was extremely likely in those circumstances that the court would make an adverse costs order against him. The wife's solicitor then concluded by dealing with passport issues.
On 8th September the husband's solicitors wrote to the wife's solicitors thanking them for the completed acknowledgement of service and said that they trusted that the wife had now withdrawn the Dubai proceedings in the light of her acknowledgement of service indicating an intention not to defend the UK proceedings. She did indeed withdraw them. They asserted that the husband had at no time during the meeting agreed to pay the sum of AED10,000 to the wife. That is not the husband's case at this hearing and is inconsistent with his June e-mail. The husband's solicitors wrote that if the wife was returning to Ethiopia the husband would argue that AED10,000 per month is a huge amount of money in that country. "Your client had indicated previously that she would return to Ethiopia and we need to know what her precise plans in this regard (sic)." There was no reference to an agreement to go to Ethiopia in that letter nor was it stated that any steps which the husband had taken were conditional on such an agreement. The e-mail concludes, "As you are aware, this is a very short marriage and it seems to us that if any maintenance is due for your client that it must be of a limited nature".
The wife's solicitor then wrote on 12th September, referring to the agreement to pay AED10,000 per month and proposing backdated maintenance.
"If our client does not receive the outstanding sum of maintenance within seven days it will be necessary for her to apply to the court for an order for interim periodical payments and maintenance pending suit in conjunction with an application for a Legal Services Order to meet our client's legal fees. Our client will rely on the attached agreement in relation to her claim for costs. Our client is in the process of preparing her Form E. Please confirm that you will be in a position to exchange on 16th September, 2013."
As the wife's solicitors had received no response a chasing letter was written on 11 November, stating that the wife had instructed them to prepare an application for interim maintenance and a Legal Services Order. It was said that the wife would return to Ethiopia for a few weeks beginning later that month, but intended to remain in Dubai on a permanent basis. In fact having returned to Ethiopia for Christmas she has remained there because she has been unable to re-enter Dubai. The wife's solicitors asked for confirmation of payment and concluded, again, that in its absence "the application will be issued at court and our client will invite the court to order that the costs associated with this are paid by your client".
The response came on 12th November, by e-mail, from the husband's solicitors:
"We are somewhat surprised at the threat made in your letter. With respect, if your client feels she has a right to so much money from our client, then by all means let her make her application to the court. We do not believe she will succeed with it".
Mr. Wilkinson's submits that that was a challenge to the jurisdiction. I do not read it in that way. This letter has to be looked at in the context of all the correspondence subsequent to the petition. It reads as a challenge to quantum.
The wife issued her application for interim maintenance and Form A on 21st November, 2013, seeking an order for periodical payments of AED 4,080 per calendar month (significantly more than the interim agreement) and Legal Services provision at a rate of £4,000 per calendar month payable in the equivalent amount of UAE dirhams. The wife put in her maintenance pending suit statement on 21st November, 2013.
On 4th December, 2013 there was a notice of first appointment at the Tunbridge Wells County Court, where the petition had been issued. At a hearing on 5th December 2013, I assume without attendance, DJ Lethem directed, in respect of the wife's maintenance pending suit application, that there be a hearing before the district judge on 27th January. The Order records:
"Upon the Respondent having applied for maintenance pending suit
IT IS ORDERED THAT
The maintenance pending suit hearing will be heard by the District Judge… on 27th January 2014…
"(1) the parties shall no less than fourteen days prior to hearing file and serve a statement limited to:
(a) their income over the last twelve months;
(b) their present outgoings;
(c) any changes that they foresee to their income and outgoings over the next twelve months;
(d) the order that they will be asking the court to make".
The wife served her Form A, other documents and draft order on the husband on 9th December.
A chasing letter was written to the husband's solicitors on 6th January 2014. The husband's Form E is dated 9th January, 2014. In that Form E the husband set out details of his income and capital as asserted by him, and also stated that he was proposing that there be a clean break in respect of the wife's claims.
A further chasing letter was written on 20th January by the wife's solicitors, which was responded to immediately by the husband's solicitors on the same date. Receipt of the wife's MPS application was acknowledged. They confirmed that the husband had completed his Form E and that this would be forwarded. The following passage appears,
"Notwithstanding the above, we are totally confused by your client's application for MPS. As you are aware, our client's petition is based solely on his domicile in England and Wales. In the circumstances therefore your client will have considerable difficulty in establishing appropriate law to allow such an order to be made".
The letter continues, after some comments in relation to child contact,
"Unless your client is prepared to withdraw her application for MPS immediately we shall be forced to brief counsel and seek a wasted costs order against your client. We would suggest that this matter be dealt with, as previously suggested by us, with careful negotiation once the Form Es have been exchanged. This is a short marriage and your client's only entitlement is that of capital".
Then the husband also stated that he intends to make a Children Act application. It is asserted that the wife, in Ethiopia, has not permitted contact. The letter concludes,
"Our client has been sending money to your client for child support. As you refer in the supporting affidavit our client made it very clear that he felt forced into an agreement in June 2013 and has since resiled from his acceptance of same on the basis that it has always been your client's intention to return to Ethiopia".
The wife's solicitors, who are specialists in this field, then responded,"We presume that you are referring to Art. 3 of Council Regulation EC4 of 2009. If so, you will of course be aware that there is no restriction on our client's maintenance claim as it was your client who petitioned for divorce based on his sole domicile. Our client then accepted the basis of this jurisdiction. This is therefore very much a maintenance case as our client has no access to income and is the primary carer of an eleven month old child".They asked for the husband's statement in accordance with DJ Lethem's order.
The husband's statement dated 23 January 2014 makes a similar assertion, saying,"I am not clear how the applicant feels that she is able to make this application to the court. As I understand the law, my petition relies solely on my domicile in England".
On 27th January 2014 the matter came before District Judge Collins at Tunbridge Wells. Submissions were made about the Regulation because, as it transpired, the husband's solicitors were indeed taking a point about the ability of the wife to apply for maintenance. District Judge Collins' order records,
"Upon the applications raising 'serious issues of jurisdiction' the applications are transferred to the High Court to be heard as soon as possible with time estimate of half a day".
Miss Mottahedan, who was counsel at the hearing, says that that was intended to include the wife's substantive claim. The husband does not accept that. The husband has, however, through Mr. Wilkinson, known since Tuesday - when the bundle was received - that the wife intends to make an application for a substantive order at this hearing. A separate hearing date has in fact also been listed at the Principal Registry before District Judge Hess on 4th April 2014.
On 9th March 2014 the husband made an open offer to the wife, contesting her expenditure, offering AED 4,000 (£654) per calendar month child maintenance out of his salary (£6,223 per calendar month); and a lump sum of £10,000, which he says is 25 percent of the assets, in full and final satisfaction of the wife's claims. The husband says that he is going to make, or has made, a residence order application in respect of Joshua.
When skeleton arguments were exchanged and submitted to me on Wednesday evening, two days ago, it was asserted by the husband for the first time that there may not be jurisdiction in any event for the court to entertain proceedings under his petition. I inquired of Mr. Wilkinson at the outset of the hearing what precisely he meant by that. He then produced an Order, which had not been served upon the wife, dated 13thJanuary, 2013 by a District Judge [not named],"Please note that the district judge, having considered the evidence filed, is not satisfied that the petitioner is entitled to the decree sought because 'Part 3 of the petition as to jurisdiction does not record a ground recognised under Brussels II. Amend petition to show the court has jurisdiction and reserve'. The petitioner should deal with the above matters and renew the request for directions for trial".I confess to failing to understand why there is any jurisdictional problem at all since in the Petition, in Section 3 "Jurisdiction", it is asserted that, "The court has jurisdiction to hear this case under Article 3.1 of Brussels II (Revised) … on the following grounds: "Other - the petitioner is domiciled in England and Wales".
There is a suggestion now by Mr. Wilkinson that the husband may intend to seek to withdraw his petition. Mr. Wilkinson says that it was not clear that there was jurisdiction in respect of the petition. I do not accept that. The wife can cross-petition in any event if the husband makes an application to withdraw. I will require submissions from Miss Mottahedan at the conclusion of this judgment in any event as to a provision in the order for clear notice which he must give to the wife of any intention to withdraw the proceedings. I accept also that Rogers-Headicar v Headicar
 EWCA (Civ) 1867, to which Miss Mottahedan has referred me, states that "the contents of pleadings are not fundamental to the issue of the court's jurisdiction because there is an independent function and independent responsibility of the court to investigate and determine whether jurisdiction lies with court or not". Indeed, to adopt the formulation of a judge in another case, it is not only trite law, but a proposition which requires no authority, that if the parties cannot agree jurisdiction, it is always a matter for the court.
This case turns upon the interpretation and applicability in this case of Council Regulation (EC) 4/2009 of 18 December, 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and co-operation in matters relating to maintenance obligations, to which I will refer as the "Maintenance Regulation".
In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:
(a) the court for the place where the defendant is habitually resident, or
(b) the court for the place where the creditor is habitually resident, or
(c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or
(d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties".
It is common ground that this petition, being based upon the husband's domicile as claimed by him, is governed by Article 3(c). Therefore, the wife has to establish, under Articles 4, 5, or 7, which are separate and not to be taken together, an exception to that rule.
Choice of Court
1. The parties may agree that the following court or courts of a Member State shall have jurisdiction to settle any disputes in matters relating to a maintenance obligation which have arisen or may arise between them:
(a) a court or the courts of a Member State in which one of the parties is habitually resident;
(b) a court or the courts of a Member State of which one of the parties has the nationality;
(c) in the case of maintenance obligations between spouses or former spouses:
(i) the court which has jurisdiction to settle their dispute in matrimonial matters; or
(ii) a court or the courts of the Member State which was the Member State of the spouses' last common habitual residence for a period of at least one year.The conditions referred to in points (a), (b) or (c) have to be met at the time the choice of court agreement is concluded or at the time the court is seized.
The jurisdiction conferred by agreement shall be exclusive unless the parties have agreed otherwise.
2. A choice of court agreement shall be in writing. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to 'writing'.
3. This Article shall not apply to a dispute relating to a maintenance obligation towards a child under the age of 18.4. If the parties have agreed to attribute exclusive jurisdiction to a court or courts of a State party to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on 30 October 2007 in Lugano (hereinafter referred to as the Lugano Convention), where that State is not a Member State, the said Convention shall apply except in the case of the disputes referred to in paragraph 3.
Jurisdiction based on the appearance of the defendant
Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction.
Where no court of a Member State has jurisdiction pursuant to Articles 3, 4, 5, and 6, the courts of a Member State may, on an exceptional basis, hear the case if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected.
The dispute must have a sufficient connection with the Member State of the court seised".
There is as yet little authority on the Maintenance Regulation and none on these precise provisions.
I have been referred to Bush v. Bush  EWCA (Civ) 865, a decision of the Court of Appeal of 9th July 2008, which preceded the coming into force of the Regulation. That case considered the prorogation provisions contained in Article 12 of the Brussels IIR Regulations. As Lord Justice Lawrence Collins (as he then was) said in accepting the submissions of counsel,
"-- the scheme of the Regulation is to ensure that jurisdiction rests with the courts of the child's habitual residence. Article 12 provides a limited opportunity for parents to elect for the jurisdiction of the court seised with their divorce proceedings. However there must be unequivocal consent from both parents to the exercise of jurisdiction specifically in relation to matters of parental responsibility and providing that that election is consistent with the best interests of the child".
Lord Justice Collins also referred to the policy which lies behind Article 12 - that the ground of jurisdiction in matters of parental responsibility "is shaped in the light of the best interests of the child". He also drew a distinction between the acceptance, "expressly or otherwise, in an equivocal manner at the time that the court is seised", required by Article 12(1)(b), with a "mere submission in the matrimonial proceedings equivalent to what would be an entry of appearance under the Brussels I Regulation (Council Regulation (EC) 44/2001), Article 24". Brussels I, Article 24 is, in fact, the immediate predecessor, in identical terms, to Article 5 of the Regulations to which I shall turn separately.
I accept that Bush v Bush
is relevant to the extent that it must be demonstrated by the parties that they have in fact agreed to a choice of court, although the words "expressly or otherwise in an unequivocal manner" do not appear in the Regulation. I accept that the formulation "a limited opportunity … to elect for the jurisdiction of the court seised with their divorce proceedings" is appropriate in this context.
Mr. Wilkinson addressed me on the basis that an agreement - and, indeed, the documents filed by the parties - must include a specific reference to acceptance of jurisdiction in respect of maintenance in this court and with specific reference to the provisions of Article 4. I do not accept that. When pressed, Mr. Wilkinson did accept that maybe no outright reference to the maintenance regulation was required. He also says that there was no reference explicitly to acceptance of jurisdiction by the husband in respect of maintenance within the divorce petition. He says that is because there is no place for such a recitation to appear in the divorce petition. The same is true of the acknowledgement of service where the question to be answered is whether jurisdiction is accepted in respect of the divorce petition.
Mr Wilkinson says that the burden is on the wife to show agreement and that a clear agreement cannot be inferred from the material before the court. He says that it is irrelevant that the husband made a claim for maintenance in his petition because he was only making a claim for himself. He tells me that the husband did not understand the contents of the divorce petition. However, it is common ground that by then he had taken advice from his specialist legal firm. He concedes that the wife can make a capital claim in this jurisdiction. That case was articulated clearly for the first time only at this hearing.
The wife relies on the acknowledgement of service; her acceptance of the English's court's jurisdiction; the husband's petition and the tick-box claim; the correspondence to which I have referred; the fact that she abandoned the Dubai proceedings, which is recorded in writing; the consistent statement in correspondence that she would make application for an interim maintenance funding order to which there was no protest; the husband's statement; and the fact that no point was taken on jurisdiction until just before the hearing. The wife says that this can point to nothing less than to a choice of court agreement in favour of the English court and, of course, the husband - and this relates to the Article 5 point as well – had submitted to an order of the court to file a means statement in the maintenance pending suit application, had served a Form E, and had not taken any jurisdiction point then.
There has been considerable debate in these proceedings, as to what "agreement" means in this context. It cannot, in my view, and the parties essentially agree this, mean 'agreed' in a contractual sense by way of offer and acceptance. The notes to Article 4 in the Red Book read,"Such a choice may be made in advance of proceedings or at the time that the court is seised. Such an agreement may be informal as Article 4.2 indicates (for example, in solicitors' correspondence). Most commonly such an agreement will be found in a pre-marital agreement".Even before I was referred to the notes to Article 4, I had taken the view that it must be the case that solicitors' correspondence or other communication in writing can demonstrate an agreement.
In my view "agreement" means: did they each agree that the English court should determine the maintenance issues. The question is, "What does the written evidence show? What did they agree?" It is not necessary to show an exchange such as "Do you accept jurisdiction in respect of maintenance?" and the answer "Yes, I do", in terms of an offer and acceptance. The question is, "What were they actually asking the English court to do?"
In my judgment the prohibition on applications for maintenance must apply, if it applies, to both husband and wife. The clear inference from the petition is that the husband accepts and proposes that the English court should have maintenance jurisdiction. I do not accept that this is a meaningless tick-box exercise of a precautionary nature. In any event, the wife was plainly entitled to rely on the husband's representations. There was no dissent from the wife's statement that if the maintenance was not paid she would apply for an order. The husband says that silence is not to be treated as acceptance. However, in this case there was not silence, but an engagement, from which the only inference which can be drawn is that the husband was agreeing to the English court's jurisdiction. The correspondence, in my view, shows a clear joint, several, and mutual decision that these parties both agreed that the English court should determine their maintenance claims. I do not think it is necessary for me to use the word "unequivocal" but if "unequivocal" is part of the test, I record also my view that this was an unequivocal agreement. There is no explanation, other than that the husband agreed to the English court's jurisdiction, for the failure to record the husband's present case, looking at this correspondence as a whole. The fact that the choice of court agreement may not have been explicitly stated in those terms does not inhibit my power to draw an explicit inference.
There is also a subsidiary issue in this case as to the distinction between capital and income. Capital and income are, to some extent, interchangeable since income claims can be made to be met from capital and income claims can be capitalised, Mr. Wilkinson says that when the husband referred to a clean break in his Form E of January 2014 there was no requirement for him to point out any distinction between capital and income and the reference to a clean break - and, indeed, his offer of capital clean break - makes it clear that he is stating that the wife's claim is for capital only. I do not accept that. However, the question of the distinction between capital and income, and whether in itself the husband's acceptance of the capital claim implies an acceptance of the income claim, is a secondary matter upon which I do not rely when drawing my clear conclusion as to the existence of a choice of court agreement within the meaning of Article 4. I come to that conclusion not because I am saying that the husband must prove disagreement, but on the basis that it is for the wife to prove the agreement, which in my view she has.
However, in the light of the husband's stance in this litigation I have to assume that there may be a challenge to this decision and I must in any event deal with Article 5 and Article 7. The wife says that the husband is the claimant for divorce and she is the respondent, and that her acknowledgment of service to the petition, accepting jurisdiction, brings this case within Article 5. The husband says that the petition in itself does not give the court jurisdiction because there was no agreement at the point when the petition was issued, and that at the very most there is a statement of intent rather than an agreement. The husband says that the effective application with which I am dealing is the wife's application for maintenance pending suit and that he either did not enter an appearance or entered an appearance to contest jurisdiction by the letter that his solicitors wrote on 21st January and his statement filed in those proceedings.
Mr. Wilkinson has referred me to the White Book and the notes to CPR 7.8. It states that the defendant does not lose entitlement to challenge jurisdiction by entering an appearance by acknowledgement of service. I am not assisted by his emphasis on the passage which deals with what happens when an application to amend or join a party is made. I accept entirely that a defendant does not submit to the jurisdiction of the court by reason only of having acknowledged service of the proceedings for the purpose of disputing the court's jurisdiction. The wording of Article 5 is specific:"-- before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction".
Miss Mottahedan refers me to Rule 11 of the CPR."A defendant has fourteen days from filing an acknowledgment of service to contest jurisdiction. Otherwise Rule 11(5)(b) states that the respondent will be treated as having accepted that the court has jurisdiction to try the claim irrespective of subsequent jurisdictional contest".Rule 11 is applied strictly.
I do not accept the wife's submission that the simple acknowledgment of service to the primary application for divorce gives the court jurisdiction under Article 5. Mr. Wilkinson is right that until the wife has accepted, or has agreed to, the jurisdiction, then there is no jurisdiction in this court. The references in correspondence to an intention to file an application is not a step within the proceedings which can be regarded as entering an appearance since I accept that the Rules provide for an acknowledgement of service which must constitute an appearance. The Family Procedure Rules do not provide for any specific method of entering an appearance to a maintenance claim. Miss Mottahedan, however, submits - and I think that she is right in the context - that taking a procedural step in the proceedings must be the equivalent of entering an appearance. Thus the filing of the husband's statement would be such a procedural step. Arguably so also might be the provision of a Form E even though not filed in accordance with an order of the court.
The more I looked again at this correspondence overnight, the more I was struck by aspects of the correspondence which fit in with an interpretation that the husband did not wish to have the Form E filed within the court process, although that was undetectable to the wife.
I have not heard submissions on this point but it does occur to me that the husband may have provided his Form E on 9th January, significantly late, in order to take advantage of the fourteen day provision so that his protest to the jurisdiction contained in the letter of 20 January 2014 would be received within a reasonable time before the hearing on 27th January, but yet be within fourteen days of the Form E.
But in my view the husband took a procedural step long before that. The husband acceded to the court making an Order in the MPS proceedings on 5th December, 2013, which required him to file a statement of his means for the purpose of a maintenance hearing.
In the context of this case and the steps that were taken by the parties it seems to me that by acceptance of the district judge's Order in December the husband has entered an appearance within the meaning of Article 5, and not challenged the jurisdiction within 14 days thereafter and I so find.
I turn now to Article 7. The last and alternative ground is forum necessitatis. "Exceptional" within Article 7 means "by way of exception" and does not in my view mean "extraordinary". The question is whether this court may "hear the case if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected. The dispute must have a sufficient connection with the Member State of the court seised", i.e. this jurisdiction.
Miss Mottahedan has referred me to the guidance"Recital 16.In order to remedy, in particular, situations of denial of justice this Regulation should provide a forum necessitatis allowing a court of a Member State on an exceptional basis to hear a case which is closely connected with a third State. Such an exceptional basis may be deemed to exist where proceedings prove impossible in the third State in question, for example because of civil war, or where an applicant cannot reasonably be expected to initiate or conduct proceedings in that State. Jurisdiction based on the forum necessitatis should, however, be exercised only if the dispute has a sufficient connection with the Member State of the court seised, e.g. the nationality of one of the parties".
The husband's case is that the wife should litigate in Dubai or in Indonesia, or in Ethiopia. The wife says she cannot litigate in Dubai now that she has withdrawn her proceedings. She is no longer resident there. She is not entitled to residence, or entry, until she can obtain a visa, for which she needs funds. Incidentally, the husband, in spite of the correspondence, denies responsibility for cancellation of her and the baby's visa, and says that his employers cancelled her visa when he got his new job. I also note that in Mr. Wilkinson's skeleton argument he says that the husband is deeply opposed to the wife returning to Dubai, which is where she says she wants to go, because she cannot afford to go there and she will have to resort to prostitution, which will not be in the interests of the child, in order to maintain herself and the baby there. In contrast, in submissions Mr. Wilkinson urged on me to find that the wife had not demonstrated that she could not return to Dubai and had not demonstrated that she did not have the funds, not only on the basis of the wife's evidence but also of the husband's. It is absolutely clear to me that there is no prospect of her litigating in Dubai at the moment. She would have to have both funds and a residence visa.
The husband says that the wife can litigate in Indonesia and has not demonstrated that she cannot. Indonesia does not have a close connection with these parties. Dubai is the place of former habitual residence of these parties, but is unavailable. The husband has already moved on. Mr. Wilkinson submits to me that there is no evidence that he will move on again. However, it seems to me in all the circumstances of this case and the husband's litigation so far that it is wholly unreasonable to expect the wife to start again in Indonesia. The extent to which the wife has been led by the husband's presentation in correspondence into engaging in litigation in this jurisdiction, and, even when the contest arose, the opaque terms in which his case was couched, is particularly important with regard to Article 7. If indeed the right interpretation is that the husband always intended to contest the jurisdiction, this does not alter my view that there was a choice of court agreement because his representations induced the wife into a belief that English court was to deal with maintenance.
Ethiopia has no closer connection with these parties than England. The husband again says that the wife has not demonstrated that she cannot litigate in Ethiopia. However, that is not the point. There is every prospect that if the wife could start proceedings in Ethiopia the husband would prove to be equally evasive in proceedings in that jurisdiction as he has in this. Part of the reasonableness evaluation relates also to the extent to which the wife has committed herself to these proceedings, and her now desperate need for maintenance and funding support. In any event, in respect of these proceedings there is, as Mr. Wilkinson has urged on me, jurisdiction to deal with capital claims. If the wife is compelled to litigate in another jurisdiction there would be an immense duplication of work and funds, or expenditure. Furthermore, the husband intends to seek a residence order here, which creates an even closer connection with this jurisdiction.
The wife has exhausted her loan from her family in litigating in this jurisdiction. I see no reason to doubt that evidence. She relied on the husband's plain representation that this was his jurisdiction of choice. The husband has shown very considerable bad faith, including by withdrawing maintenance and still failing to pay it, even in respect of the child.
The only conclusion which I can draw from the way in which he has conducted himself is that his main concern about maintenance is to inhibit the ability of the wife to litigate. Indeed, I conclude that he is trying to starve the wife out of her capacity to run legal proceedings in this jurisdiction. Indeed, looking back over the history of these proceedings, although the wife could not have been expected to detect this, there is evidence that he induced her to commit her funds to these proceedings until the very last minute and may always have intended to do so. In respect of that last observation, I stress that that is not a finding, as such. However, I am entitled in this regard to consider the risks to the wife if she is forced to start proceedings elsewhere. I accept that the difficulties for the wife litigating effectively in any other jurisdiction now, in the circumstances in which she finds herself, would be immense and insurmountable. It is wholly unreasonable to expect her to do so.
I am satisfied that this court has jurisdiction under, alternatively, Articles 4, 5, or 7. My findings in respect of Articles 5 and 7 of course establish jurisdiction also in respect of the child as well.L A T E R
I have come to the conclusion that I cannot make anything more than a short term order for maintenance pending suit order. There is a real issue as to whether the wife ought to return to Dubai, as the husband for the purpose of these proceedings said she should, although he says he cannot afford it in the longer term for the reasons set out in Mr. Wilkinson's skeleton argument. If it is right that he cannot afford it in the longer term, then it would be wrong to put the wife in the position whereby she is in Dubai with the child when there may be other alternatives.
I order that maintenance pending suit is paid at the rate of £2,000 per month, ongoing until the matter can be dealt with by District Judge Hess on 4th April, with liberty to the wife to apply if there is any more non-compliance.
Mr Mottahedan makes out a convincing argument that a legal services order is not an order for maintenance within the meaning of the regulation, since it is now provided for by specific statutory amendment separately from the powers to award maintenance. She is probably right, but I need not rule on this in the light of my decision above. So far as legal services are concerned, I shall deal with costs separately. I have no idea what this wife has to face. This case has already been run out of time with the result that it has proved difficult for me to bring it to a conclusion. I fear exactly the same approach may be taken on the next occasion. The safe course is to say that she needs £4,000 per month. Of course, credit will be given in due course against anything that she recovers, if she is successful. At the moment it is an absolute priority for this wife and child to have the ability to litigate. It may take a while for any costs order, if I make one, to be enforced. I will deal with that in a moment.
Mr. Wilkinson asserts that the wife has not proved that she cannot get a litigation loan, or a loan from her brother-in-law, or a Sears Tooth Agreement. The reality is that she is in Ethiopia, staying with her family and she has produced sworn evidence to say that her brother has lent her this sum and he cannot provide any more. That is likely to be a pretty large part of this family's resources. It is quite a lot of money in Ethiopian terms. I see absolutely no basis upon which this wife, living temporarily in Africa with her child, could obtain funding from any organisation in this country. No such provider would commit funds unless recovery would be reasonably easy. If I am told by Miss Mottahedan that her solicitors will not accept a Sears Tooth Agreement, I accept that. It seems to me ridiculous to expect that they should. I am quite satisfied that the wife brings herself within s.22Z(a) MCA 1973.L A T E R
The husband says that he had to run this case because the law is unclear. This is a preliminary issue. It was an issue which he did not have to run because I found that he did accept the jurisdiction and he changed his mind - or maybe was always intending to say that he had changed his mind after a period of time. He has behaved pretty disgracefully to this wife and child in not paying maintenance for significant periods of time. I have made a finding that he is trying to starve her out of litigation funding.
I accept that part of Miss Mottahedan's preparation of this case has been on the basis that interim maintenance would be dealt with at this hearing. I have dealt with interim maintenance funding on the basis of the figures that she has produced and the work that she has done because I thought it was essential at least to grasp the nettle for the interim period of time as to how this family is to be supported and how the essential litigation should be funded.
All in all, bearing in mind the way that the husband has behaved, my view as to his motive, and the outcome in relation to an interim order, I take the view that he should pay the costs.
The behaviour that I have described would cross the boundary over into the indemnity costs regime. However, the true difference between indemnity and standard costs is that in respect of standard costs the onus is on the payee to establish what is reasonable whereas in the case of indemnity costs it is for the payer to establish that what is claimed is unreasonable. In the circumstances of this case, notwithstanding the way that the husband has behaved, and also giving credit to the fact that the wife has not been successful in respect of all the maintenance that she sought and I have to have regard to offers made. I am not going to make an indemnity costs order.
I take the view overall, applying the principles set out in the Family Procedure Rules, that the right outcome is that the wife should have all her costs, not just a proportion, but on a standard basis, bearing in mind: (c) - reasonableness of raising, pursuing or contesting a particular allegation or issue; (d) the manner in which a party has pursued or responded to the application; and (e) any other aspect of a party's conduct in relation to proceedings; and the financial effect on the parties of any costs order. In respect of that last point, the wife has been rendered entirely dependent upon her family to litigate. Although the husband says that his means are not vast, he does have capital from which he can satisfy a costs order.