F (J) v L (J)
| Jurisdiction | Ireland |
| Judge | CATHERINE McGUINNESS |
| Judgment Date | 15 December 1994 |
| Neutral Citation | 1998 WJSC-CC 6932 |
| Docket Number | Record No. 200/94 |
| Court | Circuit Court |
| Date | 15 December 1994 |
BETWEEN:
1998 WJSC-CC 6932
THE CIRCUIT COURT
(DISTRICT COURT APPEAL)
Words & Phrases:
C
Subject Headings:
*
Citations:
FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976
STATUS OF CHILDREN ACT 1987
BRUSSELS CONVENTION 1968 ART 5(1)
BRUSSELS CONVENTION 1968 ART 5(3)
JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 REGS 1988 SI 173/1988
JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 SCHED 2
ACCESSION CONVENTION 1971 ART 1
ACCESSION CONVENTION 1978
ACCESSION CONVENTION 1982
ACCESSION CONVENTION 1971 ART 2 S2
BRUSSELS CONVENTION ART 5
JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 SCHED 5
JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 S1
JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 S6
JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 REGS 1988 SI 173/1988 RULE 20
SOMAFER V SAAR-FERNGAS 1978 3 ECR 2183
GANNON V BRITISH & IRISH STEAMPACKET CO LTD 1993 2 IR 359
BRUSSELS CONVENTION 1968 ART 6(1)
JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 S4(2)
JENARD REPORT ART 5(2)
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 5(2)
KAYE ON CIVIL JURISDICTION & ENFORCEMENT OF FOREIGN JUDGMENTS 527
BYRNE, EEC CONVENTION ON JURISDICTION & THE ENFORCEMENT OF JUDGMENTS
NEW YORK CONVENTION ON THE RECOVERY ABROAD OF MAINTENANCE 1956
MAINTENANCE ACT 1994 S13(1)
MURPHY V BORD TELECOM 1986 ILRM 483
MAINTENANCE ACT 1994 S4
These proceedings are a District Court appeal in regard to a maintenance application which was dismissed by the District Judge on the ground of lack of jurisdiction.
The Applicant is an unmarried woman, 28 years of age, who resides at 34 Tubbermore Road, Dalkey. She is the mother of a child J: born 3 July 1988 and she alleges that the Respondent is the father of this child. This is disputed by the Respondent who is married man who is employed and habitually resident in Bruges, Belgium. The Applicant seeks maintenance for her child pursuant to the Family Law (Maintenance of Spouses and Children) Act,1976as amended by the Status of Children Act,1987.
In the District Court a preliminary point was raised as to whether the proceedings were properly brought in the Irish jurisdiction, the Respondent contending that under the Jurisdiction of Courts and Enforcement of Foreign Judgements (European Communities) Act,1988and the District Court [Jurisdiction of Courts and Enforcement of Judgements (European Communities) Act,1988] Rules 1988, ( S.I. 173/1988) the proper forum for the proceedings was the courts of Belgium. On the face of the maintenance summons, the Applicant claimed that the court should assume jurisdiction under the Jurisdiction of Courts and Enforcement of Judgements (European Communities) Act, 1988by virtue of Article 5(1) and 5(3) of the 1968 Brussels Convention on jurisdiction and the enforcement of judgements in civil and commercial matters.
Legal argument on the preliminary point of jurisdiction was heard by the learned District Judge on 16 December 1993 and the matter was adjourned for further hearing. On 11 February 1994 District Judge King dismissed the application for want of jurisdiction. The Applicant appealed to this court. The matter was listed in the District Court appeals list on 12 May 1994 and was transferred by His Honour Judge Devally to this list for hearing of the jurisdictional point.
Prior to the legal submissions made before this court, Counsel for the Respondent agreed to an amendment of the Applicant's original summons by which the Certificate concerning jurisdiction on page 2 of the Summons, paragraph 1 lines 4–6 was amended to read "The Court should assume jurisdiction by virtue of Article 5(2) of the 1968 Convention".
In addition to the other legal submissions made to me by Counsel on both sides, Senior Counsel for the Applicant, Ms. Clissmann, referred me to the Second Schedule of the Jurisdiction of Courts and Enforcement of Judgements (European Communities) Act,1988which sets out the text of the 1971 Protocol as amended by the 1978 Accession Convention and the 1982 Accession Convention. In Article 1 this Protocol provides that "The Court of Justice of the European Community shall have jurisdiction to give rulings on the interpretation of the Convention on jurisdiction and the enforcement of judgements in civil and commercial matters and of the Protocol annexed to that Convention signed at Brussels on 27 September 1968 and also on the interpretation of the present Protocol." Article 2 provides that certain courts may request the Court of Justice to give preliminary rulings on questions of interpretation. These courts at Section 2 include "The courts of the Contracting States when they are sitting in an appellate capacity". Since the present proceedings are an appeal from the District Court, the power to seek rulings on interpretation is therefore available to this court. Counsel for the Applicant for reasons which will become clear later submits that the court should avail of this power.
The law governing jurisdiction in these proceedings is set out in the Jurisdiction of Courts and Enforcement of Judgements (European Communities) Act,1988("the 1988 Act"). This statute gives the force of law in the Irish jurisdiction to, inter alia, the Convention on Jurisdiction and Enforcement of judgements in civil and commercial matters signed at Brussels on 27 day of September 1968 ("the BrusselsConvention"). The First Schedule of the Act sets out the text of the Brussels Convention as amended by the 1978 Accession Convention and the 1982 Accession Convention. Title II of the Convention deals with jurisdiction and the general rule of jurisdiction is set out in Article 2 as follows:-
"Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State."
Article 5 sets out certain exceptions to this rule where rules of "special jurisdiction" apply. The relevant part of Article 5(2) provides that a person domiciled in a Contracting State may, in another Contracting State, be sued "in matters relating to maintenance in the courts for the place where the maintenance creditor is domiciled or habitually resident". It should of course be noted that the special jurisdictions set out in Article 5 are permissive, not mandatory, and do not oust the general jurisdictional rules set out in Article 2.
As far as the term "domicile" is concerned, this is not to be understood in accordance with the normal rules governing domicile in Irish law. For the purposes of the Convention, domicile is defined in the Fifth Schedule of the 1988 Act as follows:
2 "1. An individual is domiciled in the State or in a state other than a Contracting State if, but only if, he is ordinarily resident in the State or in that other state.
2. An individual is domiciled in a place in the State if, but only if, he is domiciled in the State and is ordinarily resident or carries on any profession, business or occupation in that place."
It is of course clear that the Applicant is domiciled in Ireland and under these rules it appears that the Respondent is domiciled in Belgium and in particular in Bruges. The Belgian domicile of the Respondent has not been challenged by the Applicant.
The Applicant in the instant case seeks to rely on Article 5(2) in order to bring her proceedings in the Irish courts. In order to do this, she must under the Article be a "maintenance creditor". The relevant definitions in regard to maintenance are included in Section 1 of the 1988 Act - the interpretation section. They are as follows:-
"Maintenance creditor" means in relation to a maintenance order the person entitled to the payments for which the order provides.
"Maintenance debtor" means in relation to a maintenance order the person liable to make payments under the order.
"Maintenance order" means subject to Section 6 of this Act a judgement that is a judgement relating to maintenance...
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