K v S (appeal against registration of an order of a member state)
| Jurisdiction | England & Wales |
| Judge | HHJ MORADIFAR |
| Judgment Date | 15 August 2019 |
| Court | Family Court |
Enforcement – Maintenance – Maintenance Regulations – Registration of order of member state – Whether Polish child maintenance order made in divorce proceedings superseded by CMS assessment.
The parents were Polish nationals; they met whilst living in Poland and married in Poland on 4 March 2000. They had one child together. The father moved to the UK in 2003. The parents’ relationship ended in 2005. The mother and the child moved to the UK in 2009. By 2010, all three members of the family were habitually resident in England.
The parents agreed to formally separate and to issue divorce proceedings in Poland, where the courts routinely dealt with child maintenance and custody as part of the divorce process. On 28 July 2010 the Polish court made an order dissolving the marriage, requiring the father to pay £300 each month in child maintenance, naming the mother as the child’s primary carer and providing for the father to have weekly contact with the child.
The parents and the child remained living in the UK. The father met his child maintenance obligations, as set out in the Polish order, until 2012, when he applied to the Child Support Agency (shortly before it became the Child Maintenance Services) for an assessment of his maintenance liability. On 23 October 2012, the CMS wrote to the mother, informing her of the application and stating that it had ‘… jurisdiction over any child maintenance payments in place as part of a court order’. In the following month, the CMS assessed the father’s liability as significantly less than £300 per month. Having received a hand-written note from someone at the CMS stating that the CMS assessment would ‘override the court order in Poland’, the father thereafter paid the mother the CMS assessment and stopped paying the amount due under the Polish order. In correspondence with the mother’s solicitors, the CMS stated that it did not have the details of the Polish order on its system and therefore had not considered that order when assessing the father’s liability and that issues of non-payment should be referred to the Polish court.
During 2015, the mother made applications to the Polish court, seeking enforcement of the Polish order but the Polish court refused these on the basis that it did not have jurisdiction. In 2017, the father got into arrears when he stopped paying the sums due under the CMS assessment, as these had become subject to new CMS fees. Subsequently he cleared these arrears and he continued to pay child maintenance, even after the child became an adult.
In October 2017, the father was notified that the mother had taken steps to register the Polish order in the UK under the Maintenance Regulations. Within 8 days, the father raised his written objections to the registration. When the appeal was heard, sometime later, the father argued that the CMS had exclusive jurisdiction on matters relating to maintenance and that as the Polish courts no longer had jurisdiction, the Polish order had been superseded by the CMS decision. The mother argued that the Polish order could not be changed by a judgment of another country.
Held – (1) The combined effect of arts 3 and 4 of the Maintenance Regulation in this context was that the parties could choose the jurisdiction in which their dispute was to be dealt with. Parties could exercise their choice as to jurisdiction pursuant to art 4(1)(b), but art 4.3 made it clear that the parties could not choose their jurisdiction in relation to ‘a dispute relating to a maintenance obligation towards a child under the age of eighteen’. The construction of the Maintenance Regulations and particularly art 3, gave rise to the concept of ‘exclusive jurisdiction’. The question of jurisdiction relating to ‘maintenance obligation in Member States’ was determined by reference to habitual residence [art 3(a) and (b)] or the court that had jurisdiction by its own laws, where matters related to maintenance (or parental responsibility) ancillary to the proceedings before it and jurisdiction was not solely based on the nationality of one party. It followed from these important provisions that the parties had been entitled to agree to divorce in Poland and that matters such as child maintenance that were ancillary to the divorce proceedings had fallen properly in the jurisdiction of the Polish courts. However, their nationality was clearly not relevant, in the face of the provisions of art 3 (see [20]–[22], below).
(2) The CMS, clearly identified as the competent authority in England, had become involved 2 years after the Polish order was made. At the time of its involvement the only issue before it concerned the child’s maintenance. By this stage the parents and the child had been habitually resident in England for 3 years. On any construction of the Maintenance Regulations, by 2012 jurisdiction in relation to child maintenance rested with England, which meant the CMS. This analysis was consistent with the domestic Polish Code of Civil Procedure and with the mother’s concession that in 2015 the Polish courts had declined jurisdiction (see [23], below).
(3) By the time of the mother’s application to register the Polish order in England and her subsequent attempt at enforcement, the parents and the child had been habitually resident in England for more than 11 years. CMS had exercised its jurisdiction to assess the quantum of the father’s child maintenance responsibilities, based on his updated income and circumstances. Any argument that the act of registration in 2017 should give priority to the Polish order or invalidate the decision of the competent domestic authority was unsustainable. Indeed, it would be contrary to the applicable law as set out in the Regulations (see [24], below).
(4) The court did not accept that the combined impact of arts 23, 26, 27, 28 and 30 was such that the Polish order was enforceable and should be enforced from the moment that it was made, or in the alternative from the moment the notice of registration was given to the father (see [25], below).
(5) Given this analysis, it was unnecessary for the court to consider whether recognition should be refused on the grounds of public policy. However, for completeness, the domestic courts of member states were usually very slow indeed not to recognise and enforce the orders of another court of a member state. There were occasions that this might be necessary by operation of law. Noting that the Polish courts had declined jurisdiction, at the heart of the Maintenance Regulations was the cooperation, recognition and enforcement of orders made in member states. The long-established principles of comity predated the Maintenance Regulations. However, the Regulations also endeavoured to put an end to ‘forum shopping’ or parties making claims for enforcement that would see them make what had been referred to as ‘double recovery’. This was amply illustrated by the mother’s schedule of claimed arrears. However unintentionally the miscalculations, this contained a clear and obvious element of double accounting of alleged arrears. Recognising the ethos at the heart of the Maintenance Regulations, upholding the subsequent decision of the Polish courts on the issue of jurisdiction, recognising the domestic Polish laws and recognising the jurisdiction of the competent authorities in England, public policy would demand that the Polish order was not recognised pursuant to art 24(a) (see [26], below).
Statutory provisions referred to
Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to...
To continue reading
Request your trial