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Home > Judgments > 2014 archive

EDG v RR [2014] EWHC 816 (Fam)

Judgment concerning the procedure on an application to enforce a foreign maintenance order.

The court was concerned with the enforcement of a French order for the payment of maintenance for a child, made in Paris on 14 May 2003. Under that order, the father of the child was liable to pay to the mother €1,200 (index linked) per month. Since the making of the order the father had not made a single payment.

The father was a trader working in the City of London. As a result of his place of work, the mother sought to enforce the order in the United Kingdom and specifically in the Principal Registry of the Family Division.

The mother made her application in that court (rather than adopting the traditional route for enforcing foreign maintenance orders in the magistrates' court) because she wished to apply, pursuant to Rule 33.3 of the Family Procedure Rules 2010, for enforcement by such method as the court considered appropriate (as an aside, Mr Justice Mostyn said that Rule had been very successful), and she wished for enforcement to result in direct payment to her.

Mostyn J explained that the traditional route via the magistrates' court involved payments being collected by the Clerk to the Justices and then transmitted to the central authority of the foreign country for onwards transmission to the applicant. He went on to say: "I only have to describe that procedure for its lack of attraction to any applicant to be apparent."

The issue for determination was whether or not the mother was entitled to make her application to the Principal Registry of the Family Division, rather than to the magistrates' court.

Mostyn J noted that prior to the introduction of the Maintenance Regulation No. 4/2009, the only method of enforcing a foreign maintenance order under the [1972 Act] was in the form of the Lord Chancellor being requested to enforce the order. The Lord Chancellor would then transmit the application to the magistrates' court where the defaulter lived and the enforcement would take place as per the transmission route previously outlined. He explained that the object of the Maintenance Regulation was, among other things, to avoid these formal requirements.

Mostyn J set out the two distinct routes of enforcement available under the Maintenance Regulation:

a) Direct enforcement under Chapter IV of the Regulation; and

b) The traditional method via the Lord Chancellor and the central authority under Chapter VII.

Despite the convoluted procedure, Mostyn J noted that that the second route may be attractive to some applicants as once the application had been submitted it took the burden of the progress of the application out of the applicant's hands.

Mostyn J then turned his attention to the first route as that was the focus of the decision that he was being asked to make; the mother sought direct enforcement under Chapter IV. 

He noted that the jurisdiction for direct enforcement comes from Article 41 of the Maintenance Regulation:

"Subject to the provisions of this Regulation, the procedure for the enforcement of decisions given in another Member State shall be governed by the law of the Member State of enforcement. A decision given in a Member State which is enforceable in the Member State of enforcement shall be enforced there under the same conditions as a decision given in that Member State of enforcement."

Therefore, he concluded, if the applicant seeks direct enforcement, the foreign order is treated as if it is a domestic order. Further there is no need for any special or additional procedural steps to be taken, as is made clear by Article 17 of the Maintenance Regulation:

"A decision given in a Member State bound by the 2007 Hague Protocol shall be recognised in another Member State without any special procedure being required and without any possibility of opposing its recognition."

The judge confirmed that France is a member of the 2007 Hague Protocol.
The issue in the case arose due to the wording of domestic legislation (paragraph 4 of Schedule 1 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011 No. 1484)), enacted to provide for the procedure to be followed upon enforcement of a foreign maintenance order. The legislation provides:

"1) Subject to subparagraph (2), where a maintenance decision falls to be enforced in the United Kingdom under section 1 of Chapter IV of the Maintenance Regulation, the court to which an application for enforcement is to be made is —

(a) in England and Wales, a magistrates' court …

(2) An application for enforcement is to be transmitted to the magistrates' court … designated for these purposes by rules of court ("the enforcing court") –

(a) in England and Wales, by the Lord Chancellor …"

Mostyn J explained the difficulty with the legislation:

"subparagraph (2) (to which subparagraph (1) is subject) expresses in a contradictory way that the application is to be transmitted to the Magistrates' Court by the Lord Chancellor. It would only be apt for the Lord Chancellor to transmit an application to the Magistrates' Court should he have received an application for delegated enforcement under Chapter VII. It is impossible to conceive how or why he would be transmitting an application for enforcement where an applicant has elected to adopt the route of direct enforcement under Chapter IV."

For this reason, Mostyn J concluded that the reference to Chapter IV in paragraph (1), must be in error, and should have been a reference to Chapter VII. He further reasoned that this must be correct as otherwise the legislation denies the right of an applicant to apply to a court other than the magistrates court to enforce their foreign order. An applicant enforcing a domestic county court order could apply to the county court for enforcement and an applicant enforcing a domestic High Court order could apply to the High Court. It could not be right that enforcement of a foreign order must be in a magistrates' court, it would not then enjoy the same conditions as enforcement of a domestic order, which is the intention of the Maintenance Regulation.

Mr Justice Mostyn concluded by noting that given the advent of the single Family Court it would be an anomaly if enforcement of a maintenance order made in another EU state had to be in the magistrates court. He invited the draftsmen in the Ministry of Justice to amend the domestic legislation to the effect that when enforcement is to take place via the Lord Chancellor, it should be by transmission of the enforcement application to the single Family Court.

Summary by Amy Perkins, barrister, 1 Hare Court
____________________________

Neutral Citation Number: 2014 EWHC 816 (Fam)
Case No: FD14F00194

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 13th March 2014

Before:

MR JUSTICE MOSTYN
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Between:

EDG
Applicant

- and –
 
RR 
Respondent

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Miss Marina Faggionato (instructed by Messrs Kingsley Napley LLP)
appeared on behalf of the Applicant.
The Respondent did not appear and was not represented.

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APPROVED JUDGMENT

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The Judge hereby gives leave for this judgment to be reported in this anonymised form. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location.
 
Mr Justice Mostyn:
 
1. The court is concerned with an order made in Paris on 14th May 2013, which provided for a payment of maintenance for a child, who was born on 28th November 2011. The judgment of 14th May awarded €1,200 per month in child maintenance indexed linked.

2. The child lives with his mother, EDG. His father is RR, who is a trader working in the City of London. If the father were a trader working in the City of Paris, he would be liable upon enforcement of that order to have his assets seized, his earnings attached, to be imprisoned for up to two years and/or to be subjected to a fine of €15,000.

3. The enforcement regime here in the United Kingdom is not quite so rigorous, but the mother nonetheless wishes to invoke it. Since the judgment of 14th May 2013, the father has not paid a centime for the maintenance of his son, pursuant to his obligations under the order.

4. Therefore, the mother wishes to enforce the order here. In particular, the mother wishes to invoke the enforcement machinery in the Principal Registry of the Family Division, principally so that she can take advantage of the new machinery in Rule 33.3 of the Family Procedure Rules 2010, which permits an application to be made for an order for such method of enforcement as the court may consider appropriate.

5. Speaking anecdotally, that Rule has been very successful, in that the old black letter law problems that applicants for enforcement would run into in the past (namely that on the hearing of their application they would discover that they had applied for the wrong form of enforcement) no longer applies. At any rate, in my experience and to the best of my knowledge, the method of enforcement is successful at an early stage, in that the defaulter is brought face to face with the court sooner rather than later and the court makes very clear to him that, unless there is compliance, then possibly a number of the full range of enforcement measures will be implemented against him.

6. That is the first reason why the mother wishes to apply directly for enforcement to the Principal Registry of the Family Division. The second reason is that she wishes enforcement to result in direct payment of maintenance to her, rather than it being done through the machinery which has been in place in the Magistrates' Court for well over a century, where the payments are collected by the Clerk to the Justices and then transmitted, in the case of a domestic order, to the applicant, or in the case of a registered foreign order, to the central authority of the foreign country for onwards transmission to the applicant. I only have to describe that procedure for its lack of attraction to any applicant to be apparent.

7. Prior to the advent of the Council Regulation, commonly known as the Maintenance Regulation No. 4/2009, the only method of enforcement of a foreign order such as this, under the 1972 Act (I do not at this point address what may have been available under the Brussels 1 Regulation) was by the central authority here, in the form of the Lord Chancellor being requested to enforce the order. He in turn would transmit the order to the Magistrates' Court local to where the defaulter lived and the enforcement would take place in the Magistrates' Court, deploying the machinery that I have mentioned.

8. Amongst other things, the object of the Maintenance Regulation 2009 was to avoid these formal enforcement requirements and thereby to reduce costs to be borne by the applicant. This is reflected in Recital 27 to the Maintenance Regulation, which reads:

"It would also be appropriate to limit as far as possible the formal enforcement requirements likely to increase the costs to be borne by the maintenance creditor."

9. The Maintenance Regulation provides for two distinct enforcement routes, the second of which is within Chapter VII of the Regulation and is the traditional method of enforcement being done through the central authority in, as I have said, the Lord Chancellor here, which I might describe as delegated enforcement.

10. Article 56 specifies the forms of maintenance decisions that can be enforced, the available applications, and Article 57 specifies the contents of the formal written application that must be included should this route be adopted. One can see that this route may be attractive to some applicants, because it takes the burden of progress of the application out of his or her hands (her hands usually) and leaves it for the authorities in the enforcing state to do the work on her behalf.

11. However, there is another route (the first route) which is direct enforcement, which is dealt with in Chapter IV. For the purposes of the decision that I have to make, the relevant article is Article 41, which provides as follows:

"Subject to the provisions of this Regulation, the procedure for the enforcement of decisions given in another Member State shall be governed by the law of the Member State of enforcement. A decision given in a Member State which is enforceable in the Member State of enforcement shall be enforced there under the same conditions as a decision given in that Member State of enforcement."

12. Therefore, if the route of direct enforcement is adopted, by virtue of Article 41 the foreign order is treated as if it is a domestic order. Further, there is no requirement for any special or additional procedural steps to be taken on an application for enforcement of a foreign order. This much is made clear by Article 17, which says that:

"A decision given in a Member State bound by the 2007 Hague Protocol shall be recognised in another Member State without any special procedure being required and without any possibility of opposing its recognition."

France is a Member State bound by the 2007 Hague Protocol, which I believe concerns applicable law, but the details of that need not concern me. Therefore, it is clear that there is no additional procedural requirement imposed on an applicant who wishes to adopt the route of direct enforcement.
13. Given that, under the European Communities Act 1972, European law has direct applicability in the United Kingdom, it should not be necessary for Parliament or the Secretary of State to make any secondary legislation in order to give effect to the rights expressed in the Maintenance Regulation.

14. However, notwithstanding that, in a sense, the step is otiose, the Secretary of State has made regulations, which were approved by Parliament under the Negative Resolution Procedure in June 2011. These are The Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011 No. 1484). For the purposes of the decision that I have to make, the relevant part is Schedule 1, paragraph 4, which provides:

"(1) Subject to subparagraph (2), where a maintenance decision falls to be enforced in the United Kingdom under section 1 of Chapter IV of the Maintenance Regulation, the court to which an application for enforcement is to be made is —

(a) in England and Wales, a magistrates' court …

"(2) An application for enforcement is to be transmitted to the magistrates' court … designated for these purposes by rules of court ("the enforcing court") —

(a) in England and Wales, by the Lord Chancellor …"

15. On looking at these provisions, it can be seen that they are ambiguous. Although subparagraph (1) states, as I have set out, that it refers to a maintenance decision which falls to be enforced under section 1 of Chapter IV, and therefore under the route of direct enforcement, subparagraph (2) (to which subparagraph (1) is subject) expresses in a contradictory way that the application is to be transmitted to the Magistrates' Court by the Lord Chancellor. It would only be apt for the Lord Chancellor to transmit an application to the Magistrates' Court should he have received an application for delegated enforcement under Chapter VII. It is impossible to conceive how or why he would be transmitting an application for enforcement where an applicant has elected to adopt the route of direct enforcement under Chapter IV.

16. I conclude, therefore, that in construing paragraph 4, subparagraphs (1) and (2), that there is a mistake in them and that the reference to Chapter IV should in fact be a reference to Chapter VII. I say this in order to reconcile subparagraphs (1) and (2) and also to give effect to the unfettered right of an applicant who elects the course of direct enforcement to have that enforcement done under Article 41 "under the same conditions as a decision given in that Member State of enforcement." If an applicant with the benefit of a foreign order is made to go to the Magistrates' Court, then they do not enjoy the same conditions as a decision given in the Member State of enforcement, in this case England and Wales. This is because a domestic order, if made in the County Court, may be enforced in the County Court. A domestic order, if made in the High Court, may be enforced in the High Court.

17. It seems to me to be inconceivable that the Secretary of State could have intended to have imposed more restrictive measures of enforcement by virtue of the 2011 Regulations, in circumstances where Articles 17 and 41 expressly forbid that. Therefore, I have no hesitation in concluding that, contrary to the view taken by District Judge Robinson when this matter was before her on 7th March 2014, the mother here is entitled to issue her application for general enforcement in the Principal Registry.

18. The judgment that I am giving does have a slight fin de siècle quality to it, in circumstances where the present division of jurisdiction between the County Court, the High Court and the Magistrates' Court will be swept away on 22nd April of this year with the advent of the single Family Court, which was created by Schedules 10 and 11 of the Crime and Courts Act 2013. The provisions of Schedules 10 and 11 make numerous amendments to reams of primary legislation, in order to give effect to the new creation.

19. Similarly, the Family Procedure (Amendment No.3) Rules 2013 (SI 2013 No. 3204) make numerous changes to the Family Procedure Rules 2010, to reflect the advent of the new single Family Court. It may be that amendment to The Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 has been overlooked. I agree with Ms Faggionato that it would be a truly bizarre state of affairs if, following the advent of the single Family Court, when all family work is going to be gathered under the roof of that new institution, that enforcement of an order made by a fellow EU State (if the delegated enforcement route is adopted) was done in the Magistrates' Court; that would be highly anomalous in my view.

20. I would invite the draftsmen in the Ministry of Justice to consider an amendment to the 2011 Regulations, to make clear that, where the enforcement is to be done at the behest of the Lord Chancellor, it should be by transmission of the enforcement application to the new single Family Court.