NP v TP
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 08 July 2022 |
| Neutral Citation | [2022] EWFC 78 |
| Court | Family Court |
| Docket Number | Case No: ZZ20D05011 |
[2022] EWFC 78
THE HONOURABLE Mr Justice Cobb
Case No: ZZ20D05011
IN THE FAMILY COURT
Sitting at the ROYAL COURTS OF JUSTICE
IN THE MATTER OF SECTION 31F MATRIMONIAL AND FAMILY
PROCEEDINGS ACT 1984
Royal Courts of Justice
Strand, London, WC2A 2LL
Roger Birch (instructed by Direct Access) for the Applicant (Husband: NP)
The Respondent (Wife: TP) in person.
Hearing dates: 17 June 2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Cobb
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
The application before the court is made by NP, who I shall refer to as ‘the husband’. His application (20 October 2021) is made under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 (‘ MFPA 1984’) and it appears (though this is not apparent from the face of the application) that he seeks the rescission of part of an order which I made on 16 August 2021 by which I directed that the stay on TP's (hereafter ‘the wife's’) divorce petition issued in this country in February 2020 be lifted. I made this order having found as a fact that the English Court was the court first seised of divorce process. I found then that the divorce petition was “lodged” with the English Court on 12 January 2020, several weeks before the husband's petition had been lodged in the courts of Bulgaria (4 February 2020).
The husband seeks to persuade me at this hearing that evidence which has recently come to light, and which was not before the court in July 2021 when I made that determination, undermines the factual basis of my finding.
The judgment which explains my earlier order is reported as P v P (Divorce: Jurisdiction) [2021] EWHC 2306 (the ‘ 2021 Divorce judgment’). I have previously also given a judgment in these proceedings, under the citation P v P (Re P: Discharge of Passport Order) [2020] EWHC 3009 (Fam) (‘ the 2020 Passport judgment’); it would be useful, for an understanding of the factual background to the case, for reference to be made to §5-§30 of that 2020 Passport judgment.
The hearing of the application was adjourned once, as I was satisfied that the wife had not received proper notice, and I wished to give her the chance to re-instruct her former solicitors (Dawson Cornwell) to represent her. In fact, those solicitors were not instructed, and the wife represented herself at the hearing; she did so ably, and I made due allowance for the fact that she was doing so in her second language. The husband was represented by Mr Roger Birch, of counsel.
The proceedings between NP and TP are extremely contentious. The parties have been litigating for more than 2 years, in England and Bulgaria, principally over issues of jurisdiction and interim relief concerning the dissolution of the marriage and arrangements for their child. There is little to show for their efforts. Neither party has shown any real restraint in how they have placed material before the court; they have been indifferent to court-imposed timetables and/or restrictions on the volume of documentary material lodged, and have shown questionable focus on the actual issues. The hearing of the husband's application was given a time estimate of 2 hours. I heard oral submissions, and both before and after the hearing have considered the 1,000 or more pages of submissions and evidence in order to reach a view.
The 2021 Divorce Judgment: [2021] EWHC 2306.
To set a context for my decision, it is right to return first to the 2021 Divorce judgement which I delivered on 16 August 2021. That judgment set out my reasons for finding that the wife had lodged her petition for divorce first in time, and that the courts of England and Wales were therefore first ‘seised’.
In that judgment, I had reproduced §13 of the 2020 Passport judgment which, for context, I do again here:
“[13] Litigation between these parties began in earnest in early January 2020, when the mother 1 applied (on-line) for a divorce in the Court in England; her petition was issued on 29 January 2020. On 4 February 2020, the father applied for a divorce (and child arrangements and financial relief) through the Bulgarian Court. Confusingly, on 21 February the English Court issued a second divorce petition on the mother's application (bearing the same case number). The mother claims that the Bulgarian divorce proceedings have not been served on her, a fact disputed by the father who points out that the mother applied successfully on 16 March 2020 within the Bulgarian proceedings for those proceedings to be transferred to her local court. The father has confirmed, by an Answer filed in England on 16 March, his intention to defend the English divorce proceedings on the basis of the divorce proceedings in Bulgaria; the English divorce proceedings have therefore currently been stayed.”
For reasons which I summarised at §18 of the 2021 Divorce judgment, this is a ‘legacy’ case to which the provisions of Council Regulation 2201/2003 (‘ BIIR’) continue to apply. At §24 of the 2021 Divorce judgment, I set out Article 16 BIIR. Given its significance to the instant issue, I repeat it again here:
“A court shall be deemed to be seised:
(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;
or
(b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.”
I have added underlining to give emphasis to the key provisions.
Additionally, at §25 of the 2021 Divorce judgment, I referenced Article 19 of BIIR, and then the decision of the CJEU in MH v MH (Case C-173/16) [2017] ILPr 23, EU:C:2016:542, 503. I went on to reproduce paragraphs §25, §26 and §29 of MH v MH, and repeat those paragraphs here, again for ease of reference:
[25] “The EU legislature adopted a uniform concept of the time when a court is seised, which is determined by the performance of a single act, namely, depending on the procedural system under consideration, the lodging of the document instituting the proceedings or the service of that document, but which nevertheless takes into consideration whether the second act was in fact subsequently performed. Thus, pursuant to Article 16(1)(a) of Regulation No 2201/2003, the time when the court is seised is the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent (order of 16 July 2015 in P, C-507/14, not published, EU:C:2015:512, paragraph 32).
[26] The Court stated that, for the court to be deemed seised, Article 16(1)(a) of Regulation No 2201/2003 requires the satisfaction not of two conditions, namely that the document instituting the proceedings or an equivalent document must have been lodged and service thereof must have been effected on the respondent, but merely of one — that of lodging the document instituting proceedings or an equivalent document. Pursuant to that provision, the lodging of the document of itself renders the court seised, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent (order of 16 July 2015 in P, C-507/14, not published, EU:C:2015:512, paragraph 37)” (Emphasis by underlining added).
….
[29] “ Article 16(1)(a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted to the effect that the ‘time when the document instituting the proceedings or an equivalent document is lodged with the court’, within the meaning of that provision, is the time when that document is lodged with the court concerned, even if under national law lodging that document does not of itself immediately initiate proceedings.”
I went on to consider the judgment of the Court of Appeal in Thum v Thum [2018] EWCA Civ 624, specifically at §55. I return to this decision at §25 below.
At §30 of the 2021 Divorce judgment, I cited the extensive passage in the judgment of Judge Kostadinova of the Plovdiv Family Court in Bulgaria, and her finding, confirmatory of my earlier finding, that the English Court was the court first seised. I repeat now what I said then – namely my admiration for the “very careful, thorough, and legally impeccable analysis of the current situation” which the Bulgarian Judge had brought to the issue.
I continued in the 2021 Divorce judgment at §33 – 37 to say this:
“33. The mother's case is that her petition was successfully lodged (on-line) in England on 12 January 2020. The undisputed material documentary evidence which relates to this is as follows:
i) TP has...
To continue reading
Request your trial