EUPillar C-184/14 A v B (Third Chamber)

Summary

A and B are Italian nationals with two Italian national minor children who lived in London as a family. The first child was born there on 4 March 2004 and the second on 5 August 2008. The children were habitually resident in England and Wales. A sought a legal separation from B in Milan in February 2012 and proposed to pay her €4000 a month in child maintenance. B counterclaimed in the Milan court for separation and argued that the Milan court did not have jurisdiction to deal with the custody/access and maintenance issues as these matters fell within the jurisdiction of the English courts. The Milan court upheld B’s counterclaim on jurisdiction in relation to parental responsibility and child maintenance. A then brought parental responsibility proceedings in the Family Division of the English High Court. The Milan court decided it had jurisdiction to rule on the spousal support issues as being “ancillary” to the legal separation proceedings (see Article 3(c) of the Maintenance Regulation). A appealed to the Italian Court of Cassation that the Italian courts also have jurisdiction to deal with the matters relating to child maintenance under Article 3(c) of the Maintenance Regulation. The Italian Court of Cassation referred this issue to the CJEU for a preliminary ruling. Advocate General Bot (opinion of 16 April 2015) was of the opinion that the Italian courts did have jurisdiction to rule on child maintenance issues as an “ancillary matter” in a legal separation case under Article 3(c) of the Regulation. However, for reasons of compliance with the EU Charter of Fundamental Rights, to secure the best interests of the child consistent with the principle of “proximity”, the Italian courts must decline jurisdiction in favour of the courts of the habitual residence of the children (the English courts in this case) – see para 64. This is a surprising interpretation of the Regulation because it does not create any space for a system of “declining” to exercise jurisdiction. The Third Chamber found a more convincing legal route to arrive at its judgment by focusing on what constitutes “ancillary matters” under Article 3(c) and (d) of the Regulation. The Court said “ancillary matter” must be given an autonomous and uniform interpretation throughout the EU (para 31). Influenced by the fact that the courts of the habitual residence of the child are better placed to tailor child support to the custody/access arrangements they make (para 43) the CJEU decided that where one court in the EU is seised of divorce or legal separation issues and another court in the EU is seised of parental responsibility issues then it is only the latter proceedings in which child maintenance issues are an “ancillary matter”. The CJEU did not decide that the courts with jurisdiction to deal with divorce or legal separation can never deal with child maintenance as an “ancillary matter”. If one of the parents brings an action for parental responsibility in the courts of the habitual residence of the child then the divorce/separation court cannot deal with child maintenance as an “ancillary matter”. Does that encourage a parent to thwart the divorce/separation proceedings on child maintenance at the last minute before judgement by bringing parental responsibility proceedings in the court of habitual residence?Only if they contested the jurisdiction from the first stage in the proceedings – otherwise that parent is caught by submission – see Article 5 of the Regulation. It is good from the point of view of legal efficiency and party autonomy that the divorce court can still deal with spousal and child support where the parties are content for all these matters to be decided in that court.