Case No. ZZ20D05011

, uploaded an email to [TP] querying the addresses, then into a status awaiting clarification from the Petitioner”.In the same e-mail she also explains:“At this point [January 2020] we did not have a confidential document holding space on the digital system and therefore would not upload such a document. This has since been rectified within the system…”18.I reproduce the salient parts of this communication here because Mr Birch relies on the use of the words “rejected state” in the narrative above as signifying the CTSC’s repudiation of the petition completely. As will be later apparent, that is not, in my finding; it appears that there was (contrary to the position now) no confidential document holding space on the digital system, and therefore nowhere for the administrators at the CTSC then to ‘file’ a petition which requested the storage of confidential information. I do not find that this means that the petition was refused; the e-mail is clear that the CTSC had moved the petition “into a status awaiting clarification from the Petitioner”, taking no subsequent step (such as returning the fee) to indicate that this was indeed the CTSC’s intention. I should add in preparing the chronology above, I have drawn on the original and contemporaneous documents materials, and not on the comments or interpretations offered by the HMCTS employees which are contained in subsequent e-mails to counsel and to NP. Legal considerations19.There are two specific legal issues in play, the first procedural, the second substantive:i)How should the court exercise its jurisdiction under section 31F(6) MFPA 1984?ii)Is there anything in the caselaw relevant to when a court is first seised which is particularly engaged on the facts as they now appear?How should the court exercise its jurisdiction under section 31F(6) MFPA 1984?20.NP has brought this application under section 31F of the MFPA 1984. Section 31F falls within Part 4A of the MFPA 1984; this is the part of that legislation which created the Family Court. Section 31F deals with ‘Proceedings and Decisions’. Section 31F(6) specifically provides as follows:“The family court has power to vary, suspend, rescind or revive any order made by it, including—(a) power to rescind an order and re-list the application on which it was made,(b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and(c) power to vary an order with effect from when it was originally made.”21.If not explicit, it will nonetheless have been clear from the context of my earlier order (see §5 and 6 of the 2021 Divorce judgment) that in considering whether to lift the stay of the petition I was exercising the jurisdiction of the Family Court (which had specifically referred the issue to me for consideration), as I am again now. 22.I recently had cause to consider how the court could/should exercise the jurisdiction under section 31F(6) MFPA 1984 in the case of Re A and B [2021] EWFC 76. I set out at §25 to §39 of that judgment the not insignificant jurisprudence which has grown up around the application of section 31F of the MFPA 1984 and equivalent procedures. I concluded in Re A & B that the powers of the court exercisable under section 31F(6) are, on the face of the statute alone, reasonably extensive, but that the jurisdiction has been subsequently circumscribed by caselaw. I summarised the ways in which the power had been so circumscribed at §39:“Section 31F(6) of the 1984 Act is most likely to be deployed in a children's case where the relief sought is rescission of an earlier order (as here). The Family Court has wide powers under the CA 1989 to vary or indeed discharge its own order where it can be demonstrated that the circumstances have changed, and the interests of the child require variation or discharge of the court-ordered arrangements. In determining an application for variation or discharge under the CA 1989, the child's welfare will unquestionably be paramount; this may influence the jurisdictional route which the applicant chooses to take. Having considered the arguments and the caselaw above, it seems to me that the principles by which the court will determine whether to exercise its power to rescind (or, where applicable, vary, suspend or revive) an earlier order under section 31F(6) of the 1984 Act are as follows:i)Litigants should not be permitted to have 'two bites at the cherry' by applying again before the same court in relation to the same matter; there is an important public policy in achieving finality of litigation;ii)It is equally important for the court not to subvert the role of the Court of Appeal; if the litigants assert that the trial judge was wrong, the route for them to follow is an appellate one;iii)The first point of reference should be whether one of the 'traditional grounds' for proposed review has been established:a)Fraud, mistake, innocent (or otherwise) misstatement of the facts on which the original decision was made;b)Material non-disclosure;c)A new event or material change of circumstances which invalidates the basis, or fundamental assumption, upon which the order was made;d)If the order contains undertakings;e)If the terms of the order remain executory.iv)Where an application is made under section 31F(6) in relation to an order concerning children's welfare, it is permissible, it seems to me, for the court to:a)approach the assessment of the 'traditional grounds' for review (listed in §(iii)) above, andb)make its determination,with appropriate flexibility, and with consideration to what is likely to be in the best interests of the child (i.e., it is important to "get it right for" the child: §36 above);v)Section 1(1)(a) of the CA 1989 is not engaged;vi)Where section 31F(6) is deployed in order to re-open a previous fact-finding exercise, the three-fold test set out by Peter Jackson LJ in Re E (§37 above) should be followed.”23.Although in Re A & B I was considering section 31F of the MFPA 1984 in the context of children proceedings, the principles adumbrated there and set out in §22 above are of equal application to an application which arises in other forms of family proceedings.When is a court first seised of divorce proceedings?24.In the 2021 Divorce judgment I addressed the legal issues engaged in consideration of Article 16 BIIR (see §16-29 of that judgment). At §9 above, I have reproduced the important passages from MH v MH on which I had earlier relied. At §29 of the 2021 Divorce judgment I reproduced a passage from the Court of Appeal’s judgment in Thum v Thum [2018] EWCA Civ 624; again, for completeness, I reproduce this below:“It can be clearly seen from MH v MH that a court is seised once the petition is lodged with the court and that the overarching purpose of the proviso is protection from abuse of process. This case and the other authorities referred to above also establish, in my view, that in order for the proviso to apply there has to be a failure to comply with a specific step required by the domestic law in order “to have service effected”, not a more general failure to effect service, and that the failure must be due to the applicant having failed to act diligently by not taking the required step” (§55).25.At this hearing, both parties returned to this exposition of law, bringing greater focus on what Moylan LJ had said at §47 – 52 of his judgment in the Thum case. It is not immaterial to note that in that case, the wife had lodged a petition in the English Court, but had delayed for four months before serving it on the husband; when she did so, she did not in fact provide sufficient details of the husband’s address to allow for effective service. The first instance court did not embark on any factual enquiry into her reasons for delaying service, a point which was not criticised on appeal (see §8 of Thum: “rightly in my view in the circumstances of this case, Mostyn J does not appear to have been invited to explore the reasons why the wife had acted as she did”). In giving the leading judgment on appeal, Moylan LJ considered extensively the dicta of the Court of Appeal in the case of Debt Collect London Ltd and another v SK Slavia Praha-Fotbal AS [2011] 1 WLR 866 (‘Debt Collect’) in which Lloyd LJ had determined (in an equivalent provision to Article 168) that a ‘failure’ to take a required step to effect service on the respondent had to be a ‘culpable failure’:“One of the issues is what is meant by failure to take steps in this context. It cannot refer only to the fact that the plaintiff has not yet taken the relevant steps. Otherwise, in practice, the court would only be seised once the required steps had been taken, even if they were taken promptly. That is clearly not the result that article 30 is intended to achieve.