09 November 2017
On 18 June 2011, Council Regulation 4/2009, more generally known as the 'Maintenance Regulation' took effect across EU Member States. The underlying objectives include: to accelerate and simplify enforcement of maintenance decisions across EU Member States; to guarantee the effective recovery of maintenance; and to remove all obstacles to recovery.
As a result of the Regulation, maintenance decisions given in one Member State must be recognised and capable of being enforced in another Member State without any special procedure being required.
THE PURPOSE OF THE MAINTENANCE REGULATION
One of the key benefits of the Maintenance Regulation is that it allows a creditor spouse, who has a maintenance order in their favour, to enforce that order against a debtor who has moved to a different Member State, without having to obtain a new order there. Furthermore, if the debtor spouse seeks to vary the order, and the creditor has remained habitually resident in the Member State where the original order was made, then (save for limited exceptions) any application to vary must be made in that original Member State. These provisions ensure much needed protection for international families.
As the Maintenance Regulation is directly applicable, Member States are permitted to enact local laws in order to implement its terms, but cannot introduce legislation which conflicts with it.
EU MAINTENANCE REGULATION AND DOMESTIC LAW
On 18 June 2011, the Civil Jurisdictions and Judgments (Maintenance) Regulations (2011) (“CJJMR”) were implemented as part of domestic English law, in part to provide a mechanism for the implementation of the Maintenance Regulation. However, since its introduction, there has been uncertainty as to the correct procedure to be used when trying to enforce foreign maintenance orders in England.
The issue (arising from seemingly conflicting domestic law) is whether a maintenance creditor is permitted to make an application for enforcement directly to the Central Family Court (if the application is to be made in London), or whether it is necessary for such applications to be transmitted via the Central Authority (which in England and Wales is the Reciprocal Enforcement of Maintenance Order Unit (REMO) as designated by the Lord Chancellor).
Transmitting applications through the Central Authorities almost certainly leads to delay and further cost, which is contrary to the objectives of the Maintenance Regulation.
MS V PS
In the recent case of MS v. PS  EWHC 88 (FAM) Mrs Justice Roberts decided that the ambiguity needed to be resolved. The case involved a mother in Germany trying to enforce a German child maintenance Order against the father who had moved to England.
There were already conflicting views amongst the judiciary. Mr Justice Mostyn took the view in EDG v RR  EWHC 816 that an action for enforcement could be commenced directly in the Family Court. However, Mr Justice Singer in AB v JJB  EWHC 192, whilst recognising the ambiguity and inconsistency in the domestic and EU legislation, did not agree with Mr Mostyn's approach.
Roberts J referred two questions to the CJEU: Does the Maintenance Regulation confer upon the mother the right to make an application for enforcement directly to the competent authority of the requested State, or must she go through the central authority? If there is that right, is each Member State obliged to provide a procedure or mechanism to enable the right to be recognised?
The answer came from the CJEU on 9 February 2017 and was typically clear: a decision is to be enforced under the same conditions as a decision given in the Member State of enforcement; if there is no requirement in domestic orders to have recourse to the Central Authority, there can be no obligation in respect of a foreign order. A litigant still has the ability to apply to the Central Authorities for assistance, which may prove useful in circumstances where, for example, the maintenance debtor cannot be located. There are therefore two alternative methods of submitting an application for enforcement to the overseas Court and it is for the creditor to choose.
JURISDICTION TO VARY CHILD MAINTENANCE ORDERS
Hot on the heels of this decision, the CJEU provided clarity on the question of where to commence applications for variation of child maintenance. In W, V v. X (C-499/15) there were ongoing proceedings in Lithuania and the Netherlands in relation to a child who was living with his mother in the Netherlands. The father (who lived in Lithuania) sought to apply to vary an order he had obtained there. However, having initially determined that it did not have jurisdiction, the Lithuanian court then referred a question to the CJEU as to whether they retained jurisdiction to vary on the basis that it had made the original order. The CJEU found that in circumstances where there is a final maintenance decision in a Member State, that Member State no longer retains jurisdiction to deal with a variation application if the child becomes habitually resident in another Member State; instead, the Court of the Member State where the child is then habitually resident will have jurisdiction to hear any application for a variation of maintenance.
At a time of uncertainty surrounding the future of the UK's relationship with the EU, the CJEU has provided welcome clarity in relation to certain EU regulations and how they should be interpreted and implemented.