D (A Child) (Appeal from the Registration of a Maintenance Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Baker,Lord Justice Lewison |
| Judgment Date | 11 May 2022 |
| Neutral Citation | [2022] EWCA Civ 641 |
| Docket Number | Case No: CA-2021-001813 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 641
Lord Justice Lewison
Lord Justice Moylan
and
Lord Justice Baker
Case No: CA-2021-001813
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT SITTING AT BLACKPOOL
HIS HONOUR JUDGE BOOTH
19067022H/NW/R
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant Father appeared in person
The Respondent Mother appeared in person
Mr Andrew Venables (instructed by Treasury Solicitor) for the Lord Chancellor as Intervenor
Hearing date: 28 April 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on 11 May 2022.
This case concerns the extent of the right to appeal from the registration in England and Wales of a foreign child maintenance order. The father appeals from the order made by His Honour Judge Booth (“the Judge”) on 14 June 2021 by which he dismissed the father's appeal, from the order made by the Family Court sitting at Leyland on 29 April 2021 (“the Leyland Order”), on the basis that the “court has no jurisdiction as there is no right of appeal against registration”. This was stated by the Judge, who determined the appeal without a hearing, to be because of the effect of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (“the MO(RE)A 1972”) and of Schedule 2 of the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 (“the 2007 Order”).
The Leyland Order had dismissed the father's appeal from the registration by the court officer at the Maintenance Enforcement Business Centre at Bury St Edmunds, Suffolk of the maintenance order made on 11 February 2019 (and sealed on 3 April 2019) by the District Court, Elbert County, Colorado, USA (“the Elbert County Order”).
An application for the enforcement of the Elbert County Order was transmitted on 17 April 2019 by the relevant agency in the USA to the Reciprocal Enforcement of Maintenance Orders Unit (“REMO”) in England and Wales. The application stated that it was being made under the provisions of the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (“the 2007 Convention”). The initial registration of the order was effected expeditiously on 28 June 2019. However, since then, the progress of dealing with the father's appeal proceedings has, regrettably, been very slow. It is clear from the history of the proceedings that, as identified in their Reasons by the Justices who made the Leyland Order, this was “much attributable” to the effects of the pandemic. Whatever the cause, I would simply point out that article 23(11) of the 2007 Convention requires that:
“In taking any decision on recognition and enforcement, including any appeal, the competent authority shall act expeditiously.”
I would emphasise the requirement that the court deals with registration and enforcement applications expeditiously because the underlying obligation will comprise or include maintenance intended to meet current needs. I would also draw attention, in this context, to the provisions of article 23(10) of the 2007 Convention (set about below) which state that, absent “exceptional circumstances”, a “further appeal” will “not have the effect of staying the enforcement of the” order.
The parties to this appeal are both acting in person. They have filed written submissions and also made very brief oral submissions at the appeal hearing.
When giving permission to appeal, I requested assistance from the Lord Chancellor. I am extremely grateful to him for agreeing to intervene and for the comprehensive written submissions provided on his behalf by Andrew Venables. I had initially sought assistance from the Official Solicitor but she indicated that, although she has administrative responsibility for REMO, REMO carries out its functions on behalf of the Lord Chancellor as the Central Authority for England and Wales under the 2007 Convention.
Background
The father and the mother were married in the USA but made their home in England. Their only child, R, was born in England in 2013. In 2016, the mother was given permission to relocate with R to the USA. The father commenced divorce proceedings in England which led to a decree of divorce in 2019.
The Elbert County Order requires the father to pay child maintenance to the mother for R at the rate of $1,828.61 per month, $841.49 in respect of “current child support” and $987.12 in respect of, what was called, “retroactive support”, being backdated child support for the period 1 March 2016 to 31 January 2019 in the total amount of $23,690.83.
As referred to above, an application for the enforcement of the Elbert County Order was sent to REMO by the relevant agency in the USA on 17 April 2019 and expressly stated that it was being made under the provisions of the 2007 Convention. Additionally, the documents provided with the request included a “Statement of Enforceability of a Decision” pursuant to article 25(1)(b) of the 2007 Convention.
REMO sent the enforcement application to the Maintenance Enforcement Business Centre (“the MEBC”) at Bury St Edmunds on 15 May 2019, as required by the provisions of article 23(2) of the 2007 Convention. The administration of maintenance enforcement in England and Wales has been concentrated in three MEBCs since 2015.
The Elbert County Order was registered by a court officer at the MEBC on 28 June 2019. The Notice of Registration is headed “ Civil Jurisdiction and Judgments Act 1982, Hague Convention 2007”. The father was notified of this by letter dated 4 July 2019 which also informed him of his right to appeal and the grounds on which he could appeal. I would also note that in other orders made by the Family Court sitting at Leyland the heading included reference to the 2007 Convention.
The father sent a notice of appeal, with his grounds of appeal, which was received by the MEBC on 30 July 2019.
The father's appeal was not determined until 29 April 2021 when it came before Justices sitting in the Family Court at Leyland. The appeal was dismissed, as was the father's application for a stay. In their Reasons, the Justices recorded that the Elbert County Order had been transmitted for registration and enforcement pursuant to the provisions of the 2007 Convention. They also referred to the relevant provisions of the 2007 Convention, the International Recovery of Maintenance (Hague Convention 2007) Regulations 2012 and the Family Procedure Rules 2010. When dealing with the history of the proceedings in England, the Justices noted that on 9 August 2018 “DJ Baker made orders dismissing the financial relief applications actually before the Court, namely those of the (father) for a lump sum and a periodical payments order in his favour. No orders were made, nor had been applied for, in relation to the child”.
The Justices rejected the three grounds of appeal relied on by the father. They were the grounds set out in articles 22(b), 22(d) and 22(e)(i) of the 2007 Convention (which I set out below). It is not necessary to deal with the merits of those Reasons in this judgment because this appeal is only concerned with the issue of whether there was a right to appeal from their order. However, it is clear that the Justices gave careful consideration to the matters raised by the father and have explained in detail why they decided that none of the grounds were established.
As is submitted on behalf of the Lord Chancellor, it is clear that, “at least up to this point, … the entire process was proceeding on the basis that registration had been applied for, and had taken place, under the” 2007 Convention.
The Judge determined the father's appeal from the Leyland Order without a hearing. He decided that the father had no right to appeal. He appears, in fact, to have determined that the father had no right of appeal at all from the registration of a maintenance order made by a court in the USA. The Judge's brief reasoning, set out in his order, stated that this was because no right to appeal was given by the MO(RE)A 1972 or the 2007 Order.
The Judge's conclusion may have derived from the fact that Part 34 of the Family Procedure Rules 2010 (“the FPR 2010”) deals with applications for the enforcement of USA maintenance orders both under the MO(RE)A 1972 and under the 2007 Convention. However, having come to the preliminary view on the papers that there was no right of appeal, it would have been better, and consistent with the overriding objective, if he had then given the parties the opportunity to make further submissions addressing this, new, point. The course he took meant that the parties had no opportunity to deal with the point.
The father's application for permission to appeal to this court relied on 5 Grounds of Appeal. I gave permission in respect of only two which, as set out in my order giving permission, “contend, in essence, that (the Judge) was wrong to decide that, pursuant to the MO(RE)A 1972 and/or the 2007 Order, there was no right of appeal from the order made by the Magistrates”.
Legal Framework
My summary of the legal framework largely derives from Mr Venables' submissions.
The UK and the USA have both ratified the 2007 Convention with effect, respectively, from 1 August 2014 and 1 January 2017. The 2007 Convention initially entered into force in the UK as a result of the EU's ratification of the Convention on behalf of all EU Member States (save Denmark). It was, therefore, directly applicable although this was supplemented by The International Recovery of Maintenance (Hague Convention 2007 etc.) Regulations 2012 (“the 2012 Regulations”). As a result of the UK's departure...
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