LM v KD, Court of Appeal - Family Division, November 12, 2018, [2018] EWHC 3057 (Fam)

Resolution Date:November 12, 2018
Issuing Organization:Family Division
Actores:LM v KD
 
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This judgment was delivered in public, but the judge has directed that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of her 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.

Case No: 2017/0117 and 0127

Neutral Citation Number: [2018] EWHC 3057 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

On appeal from Central London County Court

(HH Judge Parfitt) and from West London

Family Court (District Judge Jenkins)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 12 November 2018

Before :

LORD JUSTICE BAKER

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Between :

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Stewart Leech QC and Julie O'Malley (instructed by Hanover Bond) for the Applicant

Sally Jackson (instructed by A City Law Firm Ltd) for the Respondent

Hearing dates: 4 October and 10 November 2017, 26 January and 6 July 2018

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JudgmentLORD JUSTICE BAKER :

  1. This judgment sets out the reasons for my decision in two appeals heard in the Family Division against orders by judges refusing to stay separate but connected proceedings in different English courts between two parties of Italian origin, who are married but separated, and are hereafter referred to as the husband and the wife.

  2. The principal question arising in each appeal is whether jurisdiction in respect of the matters in issue lies, as the wife claims, with the courts of England and Wales or, as the husband maintains, with the courts of Italy.

  3. There are no fewer than five sets of proceedings ongoing in England and Italy arising out of the disputes between the parties. In chronological order, the proceedings are as follows:

    (1) judicial separation proceedings issued by the husband in the court in Turin in Italy on 22 March 2016;

    (2) an application by the wife under s.8 of the Children Act 1989 for a child arrangements order in respect of the parties' child, I, issued in the West London Family Court on 29 August 2016;

    (3) an application by the wife under the Trusts of Land and Appointment of Trustees Act 1996 (``ToLATA'') in respect of the parties' former matrimonial home, issued in the Central London County Court on 6 October 2016;

    (4) an application by the wife under Schedule 1 of the Children Act 1989 for a school fees order and child maintenance, issued in the West London Family Court on 18 October 2016;

    (5) an application by the husband for declaratory relief in respect of an inheritance received from his late uncle, issued in the court in Turin on 19 October 2016.

    The present appeals arise in the third and fourth of the above sets of proceedings.

    Background

  4. The parties were married in Turin in July 2006. They have one child, a girl, I, born in 2010 and now aged 8. The wife, who has lived and worked in England since 2004, has dual Italian and British nationality, as does the child I. The husband is an Italian national.

  5. At the time of their marriage, the parties selected the Italian community property regime (``comunione dei bene''). In 2008, however, following the death of the husband's uncle, who had designated the husband as his sole heir, they executed a notarised deed by which they opted for the separation of property regime (``separazione dei bene''). The husband's inheritance from his uncle included liquid assets valued in excess of €4 million and 68 real estate properties.

  6. In August 2009, the parties purchased a property in West London (hereafter referred to as ``the London property''). The property was purchased in joint names and the Form TR1 filed with the Land Registry recorded that the beneficial interest was held by the parties as joint tenants. The wife's case is that the purchase price and costs associated with the purchase were provided from jointly-owned funds held in the parties' joint account. The husband's case is that the funds for the purchase, and for subsequent improvement works at the property, were provided entirely from his inheritance from his uncle and only paid into a joint account for administrative purposes. Subsequently, the parties and I moved into the property and occupied it as a family home. The wife claims that building work was started at the property but never finished.

  7. The parties separated in January 2016. The wife and I left the property and moved to rented accommodation in London. On 23 March 2016, the husband issued judicial separation proceedings in Turin. The petition or application initiating the proceedings included requests directed at the President, in respect of provisional and urgent measures, and at the Court, in respect of final orders. The provisional and urgent measures included authorising the parties to live separately, orders in respect of I (joint custody mainly at the wife's home with defined contact to the husband), no obligation for spousal maintenance, and an order for child maintenance. By way of final order, he asked the court to order the legal separation of the spouses, to order that custody of I be jointly shared between the parents, with physical custody mainly at the home of the wife and defined contact to the husband, and to find that he should pay a monthly allowance for the maintenance of the daughter in the sum of €500, plus further payments in respect of her healthcare and education. The petition did not include any application for capital orders or orders in respect of the London property or any other property.

  8. Prior to service upon her of the husband's judicial separation proceedings, the wife, on 19 May 2016, issued divorce and financial remedy proceedings in this country in the Central Family Court. Subsequently, however, she conceded that the husband's judicial separation proceedings had been made first in time and that Italy was properly seised of those proceedings. On 1 June 2016, her divorce petition was therefore stayed by consent.

  9. On 29 August 2016, the mother filed an application in the West London Family Court for orders under s.8 of the Children Act 1989, namely an order that I live with her, a specific issue order permitting her to take I to Italy over the following Christmas holiday, and a prohibited steps order that the husband be prevented from removing the child from her care and control or from the jurisdiction of England and Wales, and further prohibited from attending at I's school. The mother also sought a declaration that the child was habitually resident in this country. In accordance with normal procedure, the application was referred to the Children and Family Court Advisory and Support Service (``Cafcass'') for safeguarding checks to be carried out.

  10. On 6 October 2016, the wife issued ToLATA proceedings in the Central London County Court seeking an order for sale of the London property with an equal division of the net sale proceeds. It was her case that the declaration of trust on the TR1 form is binding in accordance with well-established principles - see Pettitt v Pettitt [1970] AC 777, Goodman v Gallant [1986] 1 FLR 513, and Pankhania v Chandegra [2012] EWCA 1438, in which Mummery LJ summarised the principle at paragraph 27:

    ``In the absence of a vitiating factor, such as fraud or mistake, as a ground for setting aside the express trust or as a ground for rectification of it, the court must give legal effect to the express trust declared in the transfer.''

  11. On 17 October 2016, a First Hearing Dispute Resolution Appointment (``FHDRA'') in the mother's application for orders under s.8 took place at the West London Family Court before District Judge Bloom. Both parties were represented. The order recorded that the Cafcass safeguarding checks had disclosed allegations that the husband had physically, sexually and emotionally abused the mother and physically and emotionally abused the child. The order further recorded a number of issues about which the parties were agreed, including (1) that there would have to be a fact-finding hearing to determine the truth of the mother's allegations; (2) that I was currently living with the mother; (3) that I was habitually resident in England; (4) that the mother and I should be permitted to travel to Italy for Christmas; (5) that the father should not attend the school at present, and (6) that the father should have indirect contact with I every day by telephone. The issues to be resolved were (1) whether I should live primarily with the mother or under a shared care arrangement; (2) what contact the father should have with I; (3) the truth of the mother's allegations, and (4) whether, if findings were made in respect of those allegations, any work should be undertaken with the father prior to final decisions being taken with regard to the child arrangements being resolved. The court made various case management directions, and listed the matter for a Dispute Resolutions Appointment hearing in January 2017. In view of subsequent events, it should be noted that the order of 17 October 2016 did not contain an express recital that the father accepted the jurisdiction of the court to determine issues relating to parental responsibility, although there was nothing on the face of the order to suggest that he challenged the jurisdiction.

  12. On 18 October 2016, the wife issued another application in the West London Family Court (under a separate number from the s.8 application) seeking orders under Schedule 1 of the Children Act 1989, including a school fees order and a child maintenance order (on the grounds that the father's income derived entirely from Italy so that the Child Maintenance Service had no jurisdiction).

  13. On 19 October 2016, the husband filed a further claim against the wife in the Turin court (hereafter referred to as ``the Italian property proceedings'')...

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