Summary
The husband commenced legal proceedings in respect of matrimonial matters in England.
It was a jurisdictional battle.
The wife preferred for the dispute to be litigated in Malaysia.
She challenged the jurisdiction of the English courts. She went on to request even a reference to the CJEU (which possibly was a tactical manoeuvring). The wife’s jurisdictional challenged was dismissed by the English High Court, and so too was her preliminary reference request.
The wife appealed against the judgment rendered by HHJ Horowitz on 12th March 2013.
The wife’s appeal was dismissed by the Court of Appeal. Lord Justice Aikens held:
“30 In these circumstances I would accept that there could be legitimate debate as to what is the precise construction of Article 3(1)(a) indent five. It seems to me that there are (at least) three possible constructions. First, it could mean that the person seeking to found jurisdiction has to be “habitually resident” in the territory concerned at the date the proceedings are started and he also has to have “resided” there for at least a year before the relevant proceedings are started. Secondly, it could mean that the person seeking to found jurisdiction has simply to have been “habitually resident” for one year prior to the start of the proceedings. Thirdly, it could mean that the person seeking to found jurisdiction has to establish that he/she is “habitually resident” at the time the proceedings are started and that this fact is proved by establishing that he/she has “resided” in that territory for at least a year immediately before the proceedings were started (“ip;application was made”).
31 But this doctrinal dispute is irrelevant in the present case because of two facts. First, Mr Turner for the appellant accepted that, on the authorities, a person was “habitually resident” for the purposes of indent five of Article 3(1)(a) if three tests were satisfied: (i) that there was “a permanence or stability” in the residence of the person concerned in the relevant territory; (ii) that this location was the centre of the person's interests; and (iii) the person had, at that time, no other “habitual residence”, because, as he put it, you have to lose one “habitual residence” before you can obtain another one.” [30-31]
With regard to the preliminary reference request, Lady Justice Macur held:
“19 The test for making a reference is set out in Article 267 of the Treaty on the Functioning of the European Union 2008 . It provides that: “The [CJEU] shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties… Where such a question is raised before any court …of a Member State, that court may if it considers that a decision on the question is necessary to enable it to give judgment request the Court to give a ruling thereon…(emphasis added).
20 A more timid judge than HHJ Horowitz QC may well have seized the opportunity to adjourn the wife's applications to avoid the apparent legal complexities foretold in the skeleton arguments. However, in my view, he correctly and clear-sightedly “determined at the outset that [he] would not make a referral to the CJEU without hearing the evidence to enable [him] to make findings”. In this respect he applied the “measure of self restraint” which in Trinity Mirror Plc v Commissioners of Customs & Excise [2001] EWCA Civ 65 at paragraphs 51 to 53 the Court of Appeal noted had been urged upon referring courts by the CJEU.” [19-20]