MS v PS
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 21 January 2016 |
| Neutral Citation | [2016] EWHC 88 (Fam) |
| Docket Number | Case No: LN15P00301 |
| Court | Family Division |
| Date | 21 January 2016 |
[2016] EWHC 88 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE FAMILY COURT
SITTING IN BIRMINGHAM
Mrs Justice Roberts
Case No: LN15P00301
Timothy Scott QC and Melanie Barnes (instructed by Turpin and Miller LLP) for the Applicant
Edmund Farrell (instructed on a direct access basis) by the Respondent
Hearing dates: 14th July 2015
A. Introduction
The applicant in these proceedings is German. The respondent is English. They married in 2005 and separated in 2012. During their marriage, two children were born. They are now 9 and 5 years old. The applicant obtained a divorce in the Amtsgericht (District Court) Walsrode and, in the course of those matrimonial proceedings, the court made an order for maintenance for the two children. That order was made on 7 August 2014 ("the German order").
Since the divorce, the children and their mother have remained living at their home in Germany. Their father, the respondent, lives and works in England. At the present time he is refusing to pay maintenance under the terms of the German order because he alleges that the applicant is obstructing his contact with the children. By her current application, issued on 7 August 2014, she seeks to enforce the German order under the provisions of the Council Regulation (EC) Maintenance Regulation 4/2009 ("the Maintenance Regulation"). On 28 April 2015, the Family Court sitting in Lincoln transferred her application to the High Court and directed that the matter should be listed before me in July 2015.
The matter came before me on 14 July 2015. On that occasion, Mr Timothy Scott QC appeared on behalf of the applicant with Ms Melanie Barnes. The respondent did not appear but was represented by counsel, Mr Edmund Farrell.
The preliminary issue for determination when the matter came before me was whether, as the applicant contends, an application for enforcement of this type of maintenance order can be issued directly in the Family Court or whether, in all cases, the application must first be lodged with the Lord Chancellor for onward transmission to the Family Court through the Reciprocal Enforcement of Maintenance Orders Unit ("REMO").
The issue is not entirely straightforward and two recent decisions in the English court demonstrate an internal inconsistency of judicial approach. In the recent case of EDG v RR [2014] EWHC 816 (Fam), Mostyn J held that this type of enforcement action could be issued directly in the Principal Registry of the Family Division (as it then was) 1. He concluded that there must be an error in the domestic legislation which implements the European legislation which, on its face, prevents direct applications. Less than a year after that decision, a similar issue confronted Sir Peter Singer sitting as a Deputy High Court Judge. In that case, AB v JJB [2015] EWHC 192 (Fam), the
court was dealing with an application for modification of a maintenance order rather than enforcement of such an order. Whilst recognising the 'ambiguity' which Mostyn J had identified in EDG v RR, his lordship did not consider it necessary to express a view about the correct approach, despite the fact that his own analysis of the legislation was not on all fours with that followed by Mostyn JWhen the matter was raised with REMO in the context of the case before me, it stated that there was no error: the wording was intended. Thus the position remains unresolved. Given that there are a great number of pending applications for enforcement from creditors in other Member States which are currently being processed, authoritative determination is needed. It was agreed by both parties and their legal advocates that the swiftest route to secure such determination was a referral of the preliminary issue by means of questions to the Court of Justice of the European Union.
It is a course which I propose to endorse. However, before setting out the questions to which answers are required, I consider that it is appropriate to set out some background in order to give some contextual frame to the manner in which the ambiguity appears to have arisen.
B. Background: the legal framework to the Maintenance Regulation
The predecessor of the Maintenance Regulation (and also of Brussels IIA and Brussels I) was the 1968 Brussels Convention. Maintenance was included within the scope of that Convention and was absorbed within Brussels I when that Regulation came into force in 2003. Brussels I was primarily concerned with civil and commercial judgments and, in April 2004, the European Commission was presented with a Green Paper on Maintenance Obligations. Its object was to open a debate about how courts should deal with the problems encountered as between individual maintenance creditors and individual Member States. A key objective was identified in these terms:
"… it is clearly indispensable to seek out means of enabling judgments to be recognised and enforced as quickly as possible. It must be borne in mind that the settlement of a maintenance claim is always rather urgent and that, as long as debtors have a remedy allowing them to defend their rights in the event of a dispute, the creditor's rights must be regarded as predominant."……
"The study report shows that the cross-border recovery of maintenance payments in the European law-enforcement area encounters all manner of difficulties even before the judgment awarding maintenance is given, on account of the deficiencies in cooperation between States, or at the actual enforcement stage.
Merely abolishing the exequatur would not suffice to remove all obstacles to recovery of maintenance claims … and other measures would have to be put into effect."
As a result, the following year, the European Council requested the Commission to prepare a draft instrument on the recognition and enforcement of decisions. Its stated objective was to "accelerate and simplify enforcement of decisions in order to guarantee the effective recovery of maintenance": see 2005 Commission Staff Working Document (n 94) s 3.
That was to lead to the new Maintenance Regulation which was adopted in December 2008 and took effect across EU Member States with effect from 18 June 2011. Its full title is Council Regulation No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. There is a direct nexus between the Maintenance Regulation and Brussels IIA since the latter establishes jurisdiction in an application for divorce and parental responsibility where maintenance is ancillary to those proceedings. Procedure for such an application is governed by the Family Procedure Rules 2010 (FPR 2010), as amended. Its target of ease of enforceability is reinforced by Recital 9 in these terms:
'(9) A maintenance creditor should be able to obtain easily, in a Member State, a decision which will be automatically enforceable in another Member State without further formalities.'
The underlying objectives of ease of enforceability and protection for maintenance creditors were highlighted by the court on the first occasion when the CJEU had to consider the Maintenance Regulation 2: see Sanders v Verhaegen; Huber v Huber ( Cases 400/13 and 408/13), per Advocate General Jääskinen.
As a formal Council Regulation, the Maintenance Regulation is directly applicable, is of general application, and is binding in its entirety and directly applicable in all Member States: see Article 288 of the Consolidated Treaty on the Functioning of the European Union (TFEU) and Treaty on European Union (TEC) 3. Notwithstanding direct applicability, a Member State is entitled to implement the rights and obligations
The process of recognition and enforcement under the Maintenance Regulation
Recognition, enforceability and enforcement of decisions is governed by Chapter IV of the Maintenance Regulation. Section 2 applies to those Member States which are not bound by the Hague Protocol (i.e. Denmark and the United Kingdom). Provisions common to all Member States appear in Section 3. Here, the judgment creditor resides in Germany, a Member State bound by the Hague Protocol, and thus Sections 1 and 3 of Chapter IV are relevant and applicable.
Article 17 of the Maintenance Regulation provides as follows:-
' Abolition of exequatur
1. 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.
2. A decision given in a Member State bound by the 2007 Hague Protocol which is enforceable in that State shall be enforceable in another Member State without the need for a declaration of enforceability.'
The important principle that a judgment which has been given in another Member State must have the same effects in the requested state as it does in the Member State of origin was the subject of specific comment in the well known case of Hoffman v Krieg [1988] ECR 645.
As to procedure, Article 20 covers the provision of documents for the purposes of enforcement. These documents must be provided to 'the competent enforcement authorities'. On behalf of the applicant, Mr Scott contends that this clearly presupposes that the applicant for reciprocal enforcement is dealing directly with the English Family Court since that is the organ vested with responsibility for making orders which will result in the enforcement of the order which is the subject matter of the application. On behalf of the respondent, Mr Farrell does not resist that...
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