Summary
The parties to the divorce proceedings were both British nationals.
They had a child who was born in 1995. Following the child’s birth, they married in 1998. The family lived together in Wales until 2003 when they moved to France.
The parties separated on 23rd February 2006 when the mother and the child returned to Wales.
The same year, the child went back to France where she spent the Easter holiday with her dad. However, without the mother’s consent, the child remained in France. The mother applied for the child to return to Wales. Although the French court considered that the retention of the child was unlawful, the return order was declined as the child wished to remain in France.
A set of divorce proceedings was commenced by the father in France.
Parallel divorce proceedings were initiated by the mother in England. The English court had to deal with the following questions: Did the English court have jurisdiction? If it had, should the proceedings be stayed? The English court held that it had jurisdiction under Article 3(1)(b), but the English divorce proceedings had to be stayed because the French court had been first seised. In this context, Mr Justice Hedley held:
“9 […] both parties retain their domicile of origin in England and Wales and the wife is accordingly able to bring this petition within art.3(1)(b) of the Regulation.
10 The next question is: which court (English or French) was first seised of the case within the meaning of art.19 of the Regulation? There is no doubt that this court was seised of the case on May 2, 2006 when the Petition was issued. The Clerk of the French Courts says that proceedings there began on June 27, 2006. The answer should therefore be obvious. However, there are two major problems with that approach. First, the mother's French legal expert Aude Fiorini in a
‘Preliminary Opinion’ dated February 14, 2007 expresses the view that the clerk must be wrong and draws attention to a decision of the Cour de cassation which holds that “in the field of divorce, this formality [the initiation of proceedings] is, under French law, the issue (dépôt) of the requête.” Secondly, in the case of Chorley v Chorley [2005] 1 F.L.R. 38 , Thorpe L.J. made it plain that art.11 could only work if “…the filing of the requête in France be held to be the first manifest step”. In those circumstances I am bound to hold that the delivery of the requête is the first manifest step.
11 When was that? The letter from the French lawyer quoted above is all the evidence I have. If correct that inevitably means that it is the French Court that is first seised of the matter. It is, of course, for the husband to establish that date. It is also, of course, the fact that the wife cannot gainsay that assertion. It is strange, as Mr Hopkins observes, that there is no formal record or evidence of its delivery. Requests to the French Court have not evoked a specific response. On the other hand it is inevitable that it was delivered and there is nothing in the context of the lawyer's letter which permits me to doubt the assertion. Having considered the matter, I conclude as a matter of fact that the requite was delivered to the Court on April 26, 2006.
12 It follows that I am bound to conclude pursuant to art.19 of the Regulation that the French Court was first seised of this matter and I am further bound to stay the proceedings in this court.
That of course will have to be reviewed if in fact a return order is made in the Hague Convention proceedings. That is sufficient to dispose of the matters before me.” [9-12]