BIIR, Jurisdictional issues: Court first seised and lis pendens

In I-v-G [2013] EWHC 4017 (Fam) Mostyn J considered the working of Article 19 of BIIR and stayed English proceedings pursuant to Article 19(2) of BIIR to allow the Italian court to determine whether it was first seised of proceedings concerning the child. In the course of the judgment Mostyn J had to consider a number of important issues in relation to the operation of Article 19. Firstly he had to determine whether an order granting residence and temporary leave to remove a child was a 'final' order so as to terminate the proceedings or whether they remained in being and thus the court remained 'seised'. Mostyn J accepted our submissions that an application for temporary leave to remove was brought to an end when an order granting temporary leave to remove was made. Thus the English court was no longer seised of proceedings. The effect of this meant that proceedings issues subsequently in Italy rendered the Italian court first seised and so on the face of it the English court had to stay the proceedings brought by the mother in England, but after the father's Italian proceedings. The mother submitted that although the Italian court was chronologically first seised the father had failed to serve and therefore the Italian court was not legally first seised; Article 16(1)(a). Mostyn J accepted that (applying ECJ/CJEU case-law) that whether adequate steps to serve had been taken was a matter for the Italian court to determine. He therefore stayed the English proceedings. Other issues which he commented on were A. The need for clarity of drafting in orders with an international dimension, in particular in relation to whether the order was final or provisional B. He condemned the growing practise of post-hearing applications being made by e-mail for judges to reconsider issues determined at court. The mother has appealed and a permission hearing is listed for 19th February 2014. The full judgment can be found on BAILII at: http://www.bailii.org/ew/cases/EWHC/Fam/2013/4017.html