M v V
| Jurisdiction | England & Wales |
| Judgment Date | 23 June 2010 |
| Neutral Citation | [2010] EWHC 1453 (Fam) |
| Docket Number | Case No: FD09P02028 |
| Court | Family Division |
| Date | 23 June 2010 |
[2010] EWHC 1453 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Before: Sir Nicholas Wall
President Of The Family Division
Case No: FD09P02028
Caroline Lister (instructed by Collyer Bristow) for the Applicant
Timothy Scott QC and Stewart Leech (instructed by Farrer & Co) for the Respondent
Hearing date: 9 June 2010
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
SIR NICHOLAS WALL, THE PRESIDENT OF THE FAMILY DIVISION
This judgment is being handed down in private on 23 June 2010. It consists of 13 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Sir Nicholas Wall P:
Although this case raises a point of law (does the court have jurisdiction to entertain the mother's application, and if so, should it make a substantive order in favour of the child involved?) and this judgment will be placed on the website bailii.org.uk, reporting restrictions apply and the judgment is being written anonymously. Nothing, therefore, must be published which in any way identifies the child concerned in the proceedings.
The issue
The mother of I, a female child born on 2 December 2004 (and thus now 5) applies for financial provision for I under section 15 of and Schedule 1 to the Children Act 1989 (the Act). I's father opposes the application on two bases. Firstly, he submits that the court does not have jurisdiction to entertain the application. Secondly, he submits that if he is wrong about that, the court should not make a substantive order.
The facts
The mother is Algerian, but currently living in London. I's father is French, and also lives in London. He is a very rich man, and has declined to give disclosure of his financial position on the grounds that, assuming the court has jurisdiction and exercises it to make an order, he can meet any order which the court sees fit to make for I.
Also before the court, and due to be heard in July 2010, is the mother's application to relocate with I to Paris. This application, I am told, will not be opposed by the father, with the consequence (one hopes) that the July hearing will be unnecessary – at least to resolve that issue, for which, as is common ground, jurisdiction plainly exists.
On 20 April 2007, when I was 2, her parents, who were not married to each other (and have not since married), entered into an agreement in French of which I have both the original text and a translation. This agreement records that I is a French citizen; that the father has acknowledged paternity and that, since July 2001, his permanent home has been established in London, whereas the mother's home has been established in France. The agreement also records that the parties “are now petitioning the Family Affairs Judge of the Paris Regional Court to give official approval to their agreement covering both the financial aspect of (I's) maintenance and education as well as the matter of the transfer of her place of residence to England.”
The agreement goes on to record that both parents “have benefited from the assistance of a lawyer in drawing up and printing (l'elaboration et la redaction) the agreement”.
The agreement itself provides for joint parental authority, and for the parties to “share an apartment” in London. An agreement was recorded about how I would spend her holidays and the other parent's written agreement was to be required if it was necessary for I to travel anywhere outside England and France. The father was to pay “the rental, upkeep and charges” of the apartment occupied by the family, and he was in due course to pay I's school fees and medical expenses. His contribution to I's “maintenance and education” was set at £3,000 per month, payable in London and index-linked (dependent upon the family's place of residence). He was also to pay all I's and the mother's travel expenses between Paris and London. The parents agreed that “the aforementioned financial provisions” constituted “a full and all-encompassing financial agreement” covering I's needs in England. The agreement thus went on to record: -
Consequently, (the mother) does not intend to petition the English courts seeking a financial settlement with respect to (I) (particularly applying section 15 of Chapter 1 of the 1989 law relating to children).
Finally, the parents agreed that should difficulties arise between them, they would “seek mediation in the Paris family court before taking any further legal action”.
That agreement was incorporated into an order of the Tribunal de Grande Instance de Paris Affaires Familiales by means of a judgment which is said to have been given on 24 September 2007, albeit that the case was also said to have been considered by the court on 8 October 2007. Although this is puzzling, I do not think that anything turns on the discrepancy. There was a joint application by the parents, which was dated 4 June 2007 and which “requested official recognition of an agreement settling new living arrangements for their daughter because her father is resident in London”.
The court's judgment recites the essential terms of the agreement, and records that “there are grounds for granting official recognition” to it. As the judge records, the agreement “appears to meet the child's needs”. The judge (Annie Bergougnous) goes on to make what are described as a series of “orders” reflecting the terms of the agreement. These include the payments of £3,000 per month. The court also “takes formal note” of the fact that the mother “agrees not to take legal action in England for the purpose of seeking a contribution towards I's maintenance and education”; and that the parties had agreed “to seek mediation in the family court in the event of difficulty”.
The judgment is signed by the judge and her registrar. As will be apparent, there are differences of language between the agreement and the judgment, but, in my judgment, nothing turns on them.
In the event, the parties did not share an apartment. The father provided and paid for an apartment for the mother and I, whilst he lived separately —albeit in close proximity. The result was that for a lengthy period he paid sums substantially in excess of those agreed and ordered. Indeed, in her form C10A, the mother states that his total monthly contribution to the support of I and herself amounted to some £15,583 (nearly £187,000 per annum).
The parties’ respective cases
As I have indicated, the mother now proposes to return to France with I. In her Form C100 she states that she moved to England following the agreement with I's father, but that she has “not found it possible to integrate into a new environment in London”. In a statement dated 22 December 2009, she says she has been “very unhappy” in London. Her case under the Act is that the father has ceased to make the additional payments summarised in paragraph 12 above, and that her application to the English court was designed, essentially, to clarify the full extent of the father's obligations to I prior to her relocation to Paris.
The mother produced, through counsel, a summary of what she was seeking, which included rental on accommodation (presumably in Paris) at €5,000 per month, the cost of a nanny and full-time housekeeper, all education, holiday and removal costs, the discharge of the mother's current tax liabilities in France and maintenance in the sum of €7,000 per month. She also seeks the payment of her costs which amount, I was told, to some £138,000. The sums sought, it was submitted, simply reflected what the father had been paying, but had ceased to pay.
The document produced to me, however, has not always been the mother's position. Thus, her counsel told District Judge Bassett-Cross on 25 January 2010 that the mother was seeking “a capital sum, whether that buys a property in England, if she cannot relocate, or a property in Paris, where she will live with I”: see paragraph 94 of the transcript. In paragraph 96 counsel went on to discuss the terms on which the purchase would be made.
The father in his acknowledgement dated 25 November 2009, challenged the jurisdiction of the English court to hear the Schedule 1 application.
The progress of the mother's application
On 25 January 2010, District Judge Bassett-Cross sitting in the Principal Registry of the Family Division (PRFD) recorded that the father had agreed to pay (on a wholly without prejudice basis) an ex gratia contribution of £24,000 towards the mother's costs, £3,000 per month pursuant to the order of the French court, the cost of the current nanny/help, school fees and expenses and medical costs for I, the outgoings on the flat in which the mother was living and £3,500 per month “by way of an A v A type contribution towards the mother's costs”. On that basis the father was ordered to file and serve his form C10A by 4pm on 8 February 2010. The hearing before me was then set up, and directions were given for the issues under Part II of the Act to be dealt with.
The father did not serve his form C10A as ordered, and a further order was made on 1 March 2010 that he do so by 4pm on 30 March. On 4 March, he filed a Form C2 taking issue with the court's jurisdiction and also taking what is commonly known as “the millionaire's defence” namely that he could meet any...
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