MM v FF (Maintenance: Scope of EU Withdrawal Agreement)

This is an appeal by MM, (hereafter “the mother”) against a decision of District Judge Devlin sitting at the Family Court in Oxford (hereafter “the Judge”) to dismiss an application for child maintenance in respect of the parties’ child, V, born in 2007 and now aged 18. The mother is represented by Mr Edward Bennett of counsel. The appeal is resisted by FF, (hereafter, “the father”). The father appeared in person with the assistance of his wife (Ms F) acting as his McKenzie Friend. In circumstances where the father became emotional at the outset of his submissions, I granted permission to his wife to make oral representations on his behalf.

Having regard to the Grounds of Appeal, the primary questions raised by this appeal are:

The issues raised by this appeal are now somewhat esoteric in circumstances where the legal framework under consideration will govern an increasingly limited number of cases. Within that context, the father submitted that it was not appropriate for, as he put it, his family to be used by the mother’s lawyers to pursue an appeal that is academically interesting but of little wider utility. That criticism is not fair or justified. Where an issue arises as to the scope of an individual’s legal rights under legislation in force at the relevant time, and which has a material bearing on the outcome of the case, it is necessary for the court to determine the issue.

The decision for this court concerns the scope of the court’s continuing jurisdiction under the Maintenance Regulation and, if thereafter applicable, the judge’s decision to dismiss the mother’s application for breach of case management orders. The merits of the mother’s application to establish a maintenance order, if this court finds that it was properly brought and wrongly dismissed, will fall to be decided at a later date.

At the outset of the hearing, the mother made an application to adduce fresh evidence on appeal in the form of email correspondence relevant to the question of whether she breached certain case management orders in the proceedings. That application was not seriously opposed by the father, who had himself provided a further bundle of documents to the court. The court admitted both sets of fresh evidence. The mother also made an application for permission to amend her grounds of appeal. I did not accede to that application in circumstances where I was satisfied that the proposed additional ground, namely that the judge was wrong to refuse an application by the mother to adjourn the final hearing, did not add anything to those grounds of appeal already pleaded.

Finally, by way of introduction, the transcript of the hearing before the Judge records an unfortunate and extensive exchange between the Judge and the father and his wife after the Judge had requested that the mother disconnect from the hearing and the mother had complied with that request. During the subsequent exchange, and in her absence, the Judge made adverse comments regarding the mother, including the following exchange:

It should go without saying that for a judge to engage in an exchange of this nature with one party after asking the other party to leave court at the conclusion of the hearing is inappropriate and risks the appearance of bias. In my order granting permission to appeal I noted the post-hearing exchange and the fact that it was not dealt with under the Grounds of Appeal. Through Mr Bennett, the mother confirmed at this hearing that she does not pursue a ground of appeal in relation to the exchange that occurred between the Judge and the father and his wife after the mother had been told by the Judge to leave the hearing. However, in circumstances where the post-hearing exchange between the Judge and the father also extended to matters that I am satisfied fell to be dealt with in the hearing itself, I will return to this part of the transcript later in this judgment.

In determining this appeal I have had the benefit of an appeal bundle, a supplementary bundle and a bundle of authorities. The Grounds of Appeal are supported by a comprehensive Skeleton Argument from Mr Bennett. I have also had the benefit of a comprehensive Skeleton Argument from the father. Whilst that Skeleton Argument bears the father’s name, it is clear that it was prepared with the assistance of a lawyer with a degree of specialist knowledge of the issues raised by this appeal. Given the complexity of the matters in issue, I reserved judgment and now set out my decision and the reasons for it.

For the purposes of this appeal, the background can be taken relatively shortly, although it is important to trace the procedural course of the case in some detail.

The mother is an Irish national, living in the Republic of Ireland with her two children, one of whom is the subject of these proceedings. The father is a British national, living in England with his wife and two children. In 2006, the mother and father met and shared a brief relationship. As a result, the mother became pregnant with V. The mother returned to Ireland, where she gave birth to V. Following V’s birth, the mother and father had no contact.

Since V’s birth, the mother has lived in Ireland as a single parent raising V and her child by a later relationship. The father asserts that he has no memory of the mother and did not know of V’s existence until 2019. In 2019, the mother contends that she found the father’s Facebook profile, which enabled her to disclose to the father that she had given birth to V, who was by then 12 years old.

Having contacted the father in January 2019, the mother then sought to obtain a child maintenance order for the benefit of V. On 14 August 2019, the mother initiated a cross-border request via the Irish Central Authority under Art 56(1)(c) of the Maintenance Regulation. Art 56(1)(c) provides for an application to be made for the “establishment of a decision in the requested Member State where there is no existing decision”. Accordingly, by her initiating request in August 2019, the mother sought the establishment of a first child maintenance order through the English court in accordance with the framework provided by the Maintenance Regulation. The mother’s application was made using the form contained in Annex VII of the Maintenance Regulation and contained the information referred to in Art 57(2). Within that form, the mother asserted that her income consisted of child benefit, job seekers allowance, and income from part time employment as a health care assistant. By her application, the mother requested maintenance of £50 per week, with arrears backdated to birth.

The mother’s initiating request was transmitted by the Irish Central Authority to the Central Authority for England and Wales in September 2019. Ten months later, on 28 July 2020, an Assistant Justices’ Clerk recorded that the mother’s application had been received and was being treated as an application made under Schedule 1 of the Children Act 1989. The mother’s application was given a deemed issue date of 17 September 2019, the day the application had been received by the English Central Authority. Being satisfied that the English court had jurisdiction under Art 3 of the Maintenance Regulation to make a maintenance decision under the law of England and Wales, the father being habitually resident in England and Wales, and in circumstances where the application had been issued and served on the father, the Assistant Justices’ Clerk directed the filing of evidence by both parties and ordered that a hearing of that application would be listed in due course. The father was directed to complete the financial information Form E1 by 31 August 2020. Thereafter, the case was beset by very considerable delay, referable to the conduct of both parties.

The mother’s application was originally listed for a hearing on 26 March 2021, some eight months after the initial directions given by the Assistant Justices’ Clerk in July 2020. Prior to the hearing, father emailed the court indicating that he refused to complete Form E1 as directed, alleged that the mother was a “fraudster” and stated he would consent to a DNA test. Within this context, the father failed to attend the hearing and it was adjourned to 21 May 2021. On 21 May 2021, both parties failed to attend and the hearing was again re-listed for 24 September 2021. The father failed to attend again on that date, having emailed the court stating that he refused to attend. At the hearing on 24 September 2021, the mother informed the court that the father was denying paternity of V. In the circumstances, the court directed that the father undergo DNA testing to establish paternity, which he was to fund. The matter was listed for a further telephone hearing on 28 January 2022.

The mother failed to attend the telephone hearing on 28 January 2022. The father answered the phone for the telephone hearing but was not prepared to engage with the court. He had failed to comply with the previous order requiring him to undertake DNA testing. The father had, however, filed a statement in advance of the hearing contesting paternity and the case was adjourned to an in-person hearing on 25 March 2022. The court adjourned the matter to 15 July 2022 and repeated its order for the father to undergo testing. The next hearing ultimately took place on 7 September 2022. At that hearing, the father asserted that he could not afford to pay £300 for DNA testing. The mother indicated that she would pay, and the court varied its order accordingly. A further hearing was listed for 8 November 2022.

By the time of the hearing on 8 November 2022, DNA testing had confirmed that the father was V’s biological father. However, the father indicated to the court that he now disputed the outcome of the DNA test, expressing concern about the conditions under which the sample for testing had been taken, and stated that he wished to challenge the outcome of the DNA test. At this point, some two years after the mother’s initiating request, the matter was reallocated to a District judge but not given a hearing date. By an order made on 21 December 2022, the father was directed to file and serve a witness statement.

A further hearing took place before a District Judge on 20 February 2023. The order records that the father had failed to file and serve the witness statement directed by the order of 21 December 2022. The District judge found as a fact that the father was V’s biological father and directed him to file and serve a statement of means. The father contends that he complied with the order of 20 February 2023 and provided all the documents with respect to his means that were directed. The mother asserted that the father had produced only a Form E1 and not a witness statement. In either event, the father disclosed very limited financial resources. The mother alleged that the father was deliberately concealing his income and had restructured his finances in order to defeat her claim. The Form E1 ultimately produced by the father pursuant to the order of 20 February 2023 redacted the father’s address and the addresses of the properties in which he has a beneficial interest for “security reasons”, demonstrated that his family finances had been structured so that his wife owned 99% of the equity in two of the family’s three properties and asserted that the father’s income was nil, that he owned no assets and was financially dependent on his wife.

The District Judge thereafter re-allocated the matter to the MEBC and a hearing before the Magistrates was listed on 30 May 2023. At the hearing on 30 May 2023, the father applied to strike out the mother’s application. The father’s application to strike out was dismissed. I pause to note that, following the hearing on 30 May 2023, the mother was provided by the Irish Central Authority with details of the Legal Aid Agency (hereafter “the LAA”), the mother being entitled to legal aid in this jurisdiction pursuant to Schedule 1, Paragraph 18(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (hereafter “the 2012 Act”). The mother contends that the issues of non-compliance and delay relied on by the father are consequent on the mother having been unrepresented despite her entitlement to legal aid, the mother having been incorrectly advised by both the LAA and the MEBC that legal aid was not available in maintenance cases. Whilst the father disputed the mother’s entitlement to Legal Aid, her entitlement was eventually confirmed by the LAA. The mother, however, continued to encounter difficulties in identifying a solicitor to act for her, with solicitors who refused to take the case citing its jurisdictional complexity and/or on a legal aid basis. (Footnote: ¹)

The proceedings were thereafter listed before a Circuit judge, in order again to consider the question of allocation. The court directed the mother to file and serve a bundle at least three days before the hearing and directed the father to pay half the costs of preparing that bundle. The father has to date not complied with that costs order.

More than a year later, and despite the direction listing the matter before a Circuit judge, the matter came before a Deputy District judge on 5 July 2024. The mother had filed and served her updated Form E1 on 30 January 2024. The father had filed an updated Form E1 on 31 January 2024. At a hearing on 19 February 2024, the mother had been directed to file and serve medical records with respect to V following certain assertions she had made regarding his needs. Both parties were directed to exchange questionnaires and answers with respect to finances. The father complied with those directions. The mother did not comply, ultimately sending a redacted medical bundle and answering the father’s questionnaire incompletely and late. At the hearing before the Deputy District judge, the matter was again re-allocated, this time to HHJ Vincent, on the basis of jurisdictional complexity. The matter was listed before HHJ Vincent on 9 September 2024 for consideration of the following issues:

At the hearing on 9 September 2024, HHJ Vincent determined that the matter was not ready for hearing. The father had not provided a bundle compliant with FPR 2010 PD 27A. HHJ Vincent was satisfied that there had not been proper disclosure nor was there substantive evidence to support the mother’s claim. In the circumstances, HHJ Vincent directed that the mother file and serve a witness statement setting out the factual and legal basis for her claim and the reason why V required support beyond his 17th birthday. The father was directed to file and serve an updated witness statement, and one from his wife if so advised. The father was again directed again to file and serve a bundle. The mother was also directed to file updated information relating to her financial circumstances and further documentary evidence relating to V, including unredacted medical records, education records, a certified copy of his birth certificate and his bank statements.

On 9 September 2024, HHJ Vincent warned the mother that non-compliance with these case management directions would have adverse consequences for her application. Whilst that warning was not reflected in an ‘unless’ order, a recital to the order recorded as follows:

“The Applicant was warned that if she did not submit evidence in support of her application, the Court may draw an adverse inference that she did not intend to give the Court transparent and full information about hers and V’s circumstances. The Court may then draw an inference that the reason for not providing the information is that financial provision is not required”.

On 11 September 2024, the mother issued a separate application under Schedule 1 of the Children Act 1989. The father contends that this is demonstrative of the mother having realised her original initiating request was not a viable means of obtaining a maintenance order following the departure of the United Kingdom from the European Union. The mother contends that the application was issued in error and, in any event, was made by reference to the ongoing litigation and does not therefore amount to a distinct application. The mother filed an updated Form E1 on 19 September 2024.

At the hearing before the Judge on 8 November 2024, the court had a witness statement (described as a “Position Statement”) from the mother. That document did not set out in detail the financial provision the mother was seeking, nor did it deal with the asserted legal basis for her claim. The document further omitted to set out the reasons for which the mother asserted that V required financial support beyond the date of his 17^th birthday. Within the latter context, the mother did not produce V’s medical records evidencing his purported disabilities, his education records evidencing he was in full time education or a certified birth certificate (the mother contending she was confused by the meaning of the word ‘certified’). The Judge also had a witness statement from the father dated 29 October 2024. That statement asserted that the father’s financial circumstances remained as set out in his Form E1, which had disclosed a nil income and a debt of £22,167. He further stated that he and his wife own three properties worth £4.3M with a net value of zero in circumstances where 99% of his interest and mortgage debt had been transferred to his wife.

On 8 November 2024, the Judge considered that the matter was still not ready for trial and once again adjourned the proceedings, this time to a final hearing listed on 20 March 2025, some five years and seven months after the mother had lodged her initiating request with the Irish Central Authority. The Judge directed the father to provide a revised index for a trial bundle. The mother was directed by the Judge to file and serve the details of V’s doctors, proof that V remained in full time education, a certified birth certificate for V and his bank statements. It is said that the Judge once again warned the mother that non-compliance with the case management records would prejudice her application. However, that warning was not reflected in the order. On 18 March 2025, the mother made an application to adjourn the final hearing listed on 20 March 2025. The mother also emailed to the court an application for a transparency order, to enable her to discuss the proceedings with the press anonymously.

The court has a transcript of the final hearing before the Judge on 20 March 2025. The father contends in his Skeleton Argument that the mother “was given full opportunity to present her case, to respond to questions, and to make submissions on the law and evidence”. However, following an exchange between the Judge and the mother regarding her application to adjourn and the extent to which she had complied with the directions given on 9 September 2024 and 8 November 2024 (which I will come to in more detail below), with respect to the merits of her application the Judge permitted the mother only a very limited opportunity to advance her case. As is apparent from the exchanges set out above, the Judge appears to have proceeded from the outset on the basis that the only jurisdiction the court had was the jurisdiction to recognise and enforce an already existing maintenance order. Within that context, the following is the entire exchange between the mother and the Judge regarding the merits of her maintenance claim:

“JUDGE: I do not need to see it. Tell me what the legal basis of your claim, then, is? Because there is no precipitant enforcement because there is no order for V, and he is now over 18.

MR F: Mm-hm.

MS W: This is where, Judge, I was struggling to get representation. Judge, I haven’t been able to get anything and I need more time.

JUDGE: But there is no more time, why should I not simply dismiss your application today?

MS W: Because, Judge, this case has been ongoing for five years now, and I think it’s only fair that I should be allowed to present my case, if to the high – to high court, Judge.

MR F: No.

MS W: And seeing that Mr F has assets of 2.4 million and he has – he has put everything into a trust with his wife, and has had five years to do so, Judge, and he is the father of V and has been proven by DNA, and he has obstructed the court numerous of times. He has not attended cases, he has withheld everything up and –

JUDGE: Well, you for five years –

MS W: - I think, it should be – it should be only fair, that this is a continuous challenge for me.

JUDGE: Well, think about this, you have had five years, you have failed to establish even the legal basis of making the application and you have not complied with court orders, so why should I not simply dismiss your claim today?

MS W: I will ask that you wouldn’t, Judge, and I will ask that you will take into consideration that this has been difficult for me as a single mum, and I have put money – I have put money into the case by getting representation, Judge, and I have tried to carry this out to the very end, but I have struggled; I am no longer able to do anything.

JUDGE: You may have struggled and plenty of people are in your position, I have great sympathy for the fact that you cannot get legal advice, but if you appear without a lawyer, you are deemed to know as much about the rules as a lawyer does, that is the way we operate.

MS W: No, Judge, I wouldn’t know what way the rules are set out, Judge.”

Thereafter, the Judge moved straight to giving judgment, without hearing from the father or from the mother by way of reply. He refused the mother’s application to adjourn the final hearing, did not engage with her application for a transparency order and dismissed the mother’s application for a maintenance order. Whilst the father’s Skeleton Argument asserts that “The hearing on 20 March 2025 was fair, thorough, and reasoned”, the Judge gave only very limited reasons for dismissing the mother’s substantive application following over five years of litigation. The totality of the Judge’s reasoning was as follows:

“JUDGE: Well, I am going to refuse the adjournment and I am going to dismiss your application, and I am going to dismiss it for these reasons. First of all, you have failed to comply with previous court orders, to file a statement setting out the legal basis of your claim, you have not complied with the order of Judge Vincent, to file a statement and it has been going on for far too long, there has been ample time to prepare your case; so I am going to dismiss the application. Also, I am not satisfied there is even jurisdiction to hear it. V is over 18 now and you have not been able to establish, to my satisfaction, there is any jurisdiction at all. There is no reciprocal enforcement here because there is no maintenance order. So I am going to dismiss the application and I will deal with the question of costs.”

Within the context of the very brief reasons set out during the course of his ex tempore judgment, the order made by the Judge further records his reasons for dismissing the mother’s application as follows:

“1.

[Ms W] failed to comply with the order of Her Honour Judge Vincent dated 9 September 2024 in that she failed to file and serve evidence in support of her application setting out her claim and the legal basis for it. She failed to comply with the order of District Judge Devlin dated 8 November 2024.

2.

Article 67 of the agreement on the withdrawal of the United Kingdom from the European Union Restricts recognition and enforcement proceedings instituted before the transition period’s end. No valid application exist under Article 56 of the EU council regulation 4/2009 because there is no existing maintenance decision or order.”

At the conclusion of the hearing, the mother made an oral application to the Judge for permission to appeal on the grounds that her initiating request did fall within the scope of the rules governing the transitional period resulting from the departure of the United Kingdom from the European Union. The Judge refused permission to appeal.

As I have already noted at a number of points in this judgment, thereafter the Judge engaged in extensive post-hearing discussions with the father and his wife after he had told the mother to leave the hearing and the mother had left in compliance with that direction. That exchange in the absence of the mother improperly included, again inappropriately, the Judge asking whether the father sought to recover his costs, even though the father had indicated in response to a previous enquiry by the Judge in the presence of the mother that he did not seek to do so, and dealing with the terms of the order:

“JUDGE: You had a barrister helping you, and you did not want to claim the costs of the barrister?

MS F: It’s okay. Just –

MR F No, I couldn’t care less.

JUDGE: Who was the barrister you used, by the way?

MR F: She has said the last time she said that – that she doesn’t care about British – no, not she doesn’t care about British law, she says –

MS F: That British –

JUDGE: Now that it is ended, I cannot say too much.

MR F: That she’s not – that you can – you can order you – her – you can order her for that, -

MS F: She would never comply.

MR F: - but she would not comply because she’s in Ireland, and you have no jurisdiction.

JUDGE: Who gave you the legal advice? They did well.

MS F: Yeah, he was really kind. He’s a chap called Duncan Ranton. He works for DR Law. He’s been really excellent. He’s been really kind, and helped this immensely.

MR F: He has.

JUDGE: I am glad it is over, anyway.”

And:

“JUDGE: Okay, all right.

MS F: This is ours.

MR F: I’m just glad that someone just took charge and said, look, enough is enough, you know?

JUDGE: Well, she has not complied with the court orders.

MR F No, none of them. None.

JUDGE: What I have decided, say I put in an order for you anyway, so you will get what they are saying for this.

MS F: Yes, please. Yeah, thank you very much.

MR F Okay, yeah. Yeah.”

Having been refused permission to appeal by the Judge, the mother sought to apply for permission to appeal to a Circuit judge sitting in the Family Court but was wrongly advised by court staff that the appeal had to be heard by the MEBC.

Finally, the mother issued an application for permission to appeal out of time in the Family Division of the High Court. When the matter was referred to me, I re-allocated the application for permission to appeal to the Family Court. Whilst the appeal required to be transferred to the Family Court to be heard, I was further satisfied that the matter was of sufficient complexity to merit being heard by a Judge of High Court level and allocated the appeal to myself in circumstances where a High Court judge is permitted to hear an appeal from a District judge pursuant to r.7(2)(b) of the Family Court (Composition and Distribution of Business) Rules 2014 (SI 2014/840). Thereafter, I granted permission to appeal out of time in circumstances where the mother had sought to issue her application for permission to appeal in the correct forum, but was wrongly told by court staff she could not issue in that forum, and granted permission to appeal on all grounds.

Within the foregoing context, the mother advances the following four grounds of appeal against the decision of the Judge:

Prior to the departure of the United Kingdom from the European Union, the recognition and enforcement of maintenance as between the United Kingdom and the other Member States of the European Union was governed by the Maintenance Regulation. The Maintenance Regulation had direct effect and applied to all EU Member States from 18 June 2011. With respect to the purpose of the Maintenance Regulation, Recital 9 provides as follows:

“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”.

Art 1 of the Maintenance Regulation provides as follows with respect to the scope of the Regulation:

“Article 1

Scope of Application

1.

This Regulation shall apply to maintenance obligations arising from a family relationship, parentage, marriage or affinity.

2.

In this Regulation, the term ‘Member State’ shall mean Member States to which this Regulation applies.”

Art 3 of the Maintenance Regulation provides as follows with respect to jurisdiction to determine maintenance obligations:

“Article 3

General provisions

In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:

(a)

the court for the place where the defendant is habitually resident, or

(b)

the court for the place where the creditor is habitually resident, or

(c)

the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or

(d)

the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.”

With respect to the applications that can be made by a party in order to recover maintenance in another Member State under the Maintenance Regulation, a party seeking maintenance may apply directly to the court or to make their application through the Central Authority, which has specific functions and duties to cooperate and provide assistance, including access to legal aid. (Footnote: ²) Applications through central authorities are provided for in Chapter VII of the Maintenance Regulation. Pursuant to Art 55, an application is made through the Central Authority of the requesting Member State in which the applicant resides, in this case the Republic of Ireland, to the Central Authority of the requested state, in this case the United Kingdom. Within this context, Art 56 provides as follows with respect to the applications that can be made by this route:

“Article 56

Available applications

1.

A creditor seeking to recover maintenance under this Regulation may make applications for the following:

(a)

recognition or recognition and declaration of enforceability of a decision;

(b)

enforcement of a decision given or recognised in the requested Member State;

(c)

establishment of a decision in the requested Member State where there is no existing decision, including where necessary the establishment of parentage;

(d)

establishment of a decision in the requested Member State where the recognition and declaration of enforceability of a decision given in a State other than the requested Member State is not possible;

(e)

modification of a decision given in the requested Member State;

(f)

modification of a decision given in a State other than the requested Member State.

2.

A debtor against whom there is an existing maintenance decision may make applications for the following:

(a)

recognition of a decision leading to the suspension, or limiting the enforcement, of a previous decision in the requested Member State;

(b)

modification of a decision given in the requested Member State;

(c)

modification of a decision given in a State other than the requested Member State.

3.

For applications under this Article, the assistance and representation referred to in Article 45(b) shall be provided by the Central Authority of the requested Member State directly or through public authorities or other bodies or persons.

4.

Save as otherwise provided in this Regulation, the applications referred to in paragraphs 1 and 2 shall be determined under the law of the requested Member State and shall be subject to the rules of jurisdiction applicable in that Member State.”

The procedure by which a person seeking maintenance can establish a decision as to maintenance in the requested Member State through the central authorities is provided by Art 55 of the Maintenance Regulation:

“Article 55

Application through Central Authorities

An application under this Chapter shall be made through the Central Authority of the Member State in which the applicant resides to the Central Authority of the requested Member State.”

With respect to date on which a court in a Member State is seised of proceedings to establish a decision as to maintenance, Art 9 of the Maintenance Regulation states that:

“Article 9

Seising of a court

For the purposes of this Chapter, a court shall be deemed to be seised:

(a)

at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the claimant has not subsequently failed to take the steps he was required to take to have service effected on the defendant; or

(b)

if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the claimant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.”

Finally, with respect to the Maintenance Regulation, in addition to the provisions of Art 56(4) dealing with applicable law in respect of the applications available under the Maintenance Regulation, including an application to establish a maintenance decision, Art 15 provides as follows with respect to the law applicable to the maintenance obligations that are in issue, including proceedings to establish a decision as to maintenance:

“Article 15

Determination of the applicable law

The law applicable to maintenance obligations shall be determined in accordance with the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations (hereinafter referred to as the 2007 Hague Protocol) in the Member States bound by that instrument.”

At the date the mother’s proceedings were commenced, the United Kingdom was not bound by the 2007 Hague Convention on Child Support and Other Forms of Family Maintenance (hereafter, “the 2007 Hague Convention”).. The court was therefore entitled to apply domestic law, pursuant to the provisions of Art 56(4) of the Maintenance Regulation.

The domestic rules for claims brought under the Maintenance Regulation are provided for under the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011/1484) (“hereafter, the 2011 Regulations”), as amended by The International Recovery of Maintenance (Hague Convention 2007 etc) Regulations 2012 and Part 34 Family Procedure Rules 2010. The 2011 Regulations have been amended a number of times. The relevant provisions in force at the time the mother’s initiating request was submitted provided as follows at Schedule 1, Part 5:

“Schedule 1: The Maintenance Regulation

...

Part 5 Establishment and Modification of Maintenance under the Maintenance Regulation

11.

—(1) This paragraph applies to an application submitted under Article 56 for establishment or modification of a decision to the Lord Chancellor, in relation to England and Wales, or to the Department of Justice in relation to Northern Ireland.

(2)

Upon receipt of an application submitted under Article 56 for establishment or modification of a decision in England and Wales, the Lord Chancellor shall send that application to the court officer of the family court in the Maintenance Enforcement Business Centre for the area in which the respondent is residing.

(3)

Upon receipt of the application under sub-paragraph (2), the court officer of that court shall decide—

(a)

whether the courts of England and Wales have jurisdiction to determine the application by virtue of the Maintenance Regulation and Schedule 6 to these Regulations; and

(b)

if so, whether the family court has power to make the decision or modification sought under the law in force in England and Wales.

(4)

Where the court officer decides under sub-paragraph (3)(a) that the courts of England and Wales do not have jurisdiction to determine the application, the court officer shall return the application to the Lord Chancellor with a written explanation of the reasons for that decision.

(5)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)

Subject to sub-paragraph (7), if the court officer decides under sub-paragraph (3)(b) that the family court has power to make the decision or modification sought, the court officer shall issue the application and serve it on the respondent.

(7)

If the respondent does not reside in the area covered by the Maintenance Enforcement Business Centre to which the application has been sent, the court officer] shall—

(a)

if satisfied that the respondent is residing within the area covered by another Maintenance Enforcement Business Centre, send the application to the court officer of the family court in the Maintenance Enforcement Business Centre for that other area and inform the Lord Chancellor that it has been so sent; or

(b)

if unable to establish where the respondent is residing, return the application to the Lord Chancellor.

(8)

A court officer who receives an application by virtue of sub-paragraph (7)(a) shall proceed under sub-paragraph (6) as if that court officer had decided that the family court has power to make the decision or modification sought.

(9)

Where the court officer has determined in accordance with sub-paragraph (3)(b) that the family court has power to make the decision or modification sought, the application shall be treated for the purpose of establishment or modification of a decision under the law in force in England and Wales.

(10)

Sub-paragraphs (2) to (9) apply to an application submitted under Article 56 for establishment or modification of a decision in Northern Ireland to the Department of Justice in relation to Northern Ireland as if—

(a)

references to England and Wales were references to Northern Ireland;

(b)

references to the Lord Chancellor were references to the Department of Justice;

(c)

for “court officer” were substituted “clerk of petty sessions”;

(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)

references to the courts of England and Wales or to the family court were references to the courts of Northern Ireland;

(ea)

in sub-paragraph (2), there were omitted the words from “of the family court” to the end;

(f)

for sub-paragraph (3)(b) there were substituted—

“(b)

if so, whether the magistrates’ court has power to make the decision or modification sought under—

(i)

the Domestic Proceedings (Northern Ireland) Order 1980; or

(ii)

Article 15 of and Schedule 1 to the Children (Northern Ireland) Order 1995.”

(g)

after paragraph (4) there were inserted—

“(5)

Where the clerk of petty sessions decides under sub-paragraph (3)(b) that the magistrates’ court does not have power to make the decision or modification sought, the clerk of petty sessions shall send the application to—

(a)

the High Court of Judicature; or

(b)

a county court,

as appears to the clerk of petty sessions to be appropriate.”;

(ga)

for sub-paragraph (7) there were substituted—

“(7)

If the clerk of petty sessions is unable to establish where the respondent is residing, the clerk shall return the application to the Department of Justice.”;

(gb)

sub-paragraph (8) were omitted; and

(h)

in sub-paragraph (9) for “the law in force in England and Wales” there were substituted “the Domestic Proceedings (Northern Ireland) Order 1980 or Article 15 of and Schedule 1 to the Children (Northern Ireland) Order 1995.

(11)

In this paragraph—

“respondent” means the person who is alleged in an application for establishment of a decision under Article 56 to owe maintenance, or where the application is for modification of a decision, the person against whom the modification is sought;

and a reference to an application is a reference to an application together with any documents which accompany it.”

Given the date on which the mother’s initiating request was made, it is also necessary to consider the impact of the departure of the United Kingdom from the European Union on the foregoing legislative provisions.

The United Kingdom’s referendum on leaving the European Union took place on 23 June 2016. In preparation for the United Kingdom’s exit from the European Union, the European Union (Withdrawal) Act 2018 (hereafter, the “2018 Act”) made provision for the repeal of the European Communities Act 1972 and for the retention of relevant EU law, including the Maintenance Regulation. The 2018 Act provided for a transitional, or implementation period. This transition period was due initially to run to 31 March 2019 but it was extended on several occasions under Art 50 of the Withdrawal Agreement as “exit day” was delayed.

Under the 2018 Act, and to ensure a “functioning domestic statute book” in the event that the United Kingdom departed the European Union without an agreement with respect to civil judicial cooperation in matters of family law, the Jurisdiction and Judgements (Family) (Amendment etc) (EU Exit) Regulations 2019 were promulgated by Parliament. These regulations (which, as I will come to, were later amended) revoked the Maintenance Regulation, save in respect of proceedings or applications under the Maintenance Regulation that had commenced prior to “exit day” on 31 January 2020:

“Saving and transitional provisions

8.

—(1) The amendments and revocations made by these Regulations do not apply in relation to—

(a)

proceedings before a court in a Member State seised before exit day in reliance upon—

(i)

the provisions of Chapter II (jurisdiction) of Council Regulation No. 2201/2003, or

(ii)

the provisions of Chapter II (jurisdiction) of Council Regulation No. 4/2009;

(b)

proceedings before a court seised in reliance upon a choice of court agreement, whether made before or after exit day, in accordance with Article 4 of Council Regulation No. 4/2009;

(c)

payments of maintenance which fall due before exit day or applications, requests for assistance or specific measures, where the application or request is received by the relevant Central Authority or where the relevant competent authority is seised before exit day, in accordance with—

(i)

Chapter III (recognition and enforcement) or Chapter IV (cooperation between Central Authorities in matters of parental responsibility) of Council Regulation No. 2201/2003, or

(ii)

Chapter IV (recognition and enforcement), Chapter VI (court settlements and authentic instruments), Chapter VII (cooperation between Central Authorities) or Chapter VIII (public bodies) of Council Regulation (EC) No. 4/2009.

(2)

For the purposes of this regulation, a court is seised—

(a)

at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps the applicant was required to take to have service effected on the respondent; or

(b)

if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps the applicant was required to take to have the document lodged with the court.

(3)

For the purposes of paragraph (1), references to “Member State” in Council Regulation No. 2201/2003 and Council Regulation No. 4/2009 and any implementing legislation are to be read as including the United Kingdom.”

The United Kingdom and the European Union ultimately reached agreement in the form of the Agreement on the Withdrawal of the United Kingdom of Great Britain and Ireland from the European Union and the European Atomic Energy Community (“the Withdrawal Agreement”). The Withdrawal Agreement established a transition period under Part Four, Arts 126 to 132, that defined the period as starting on "exit day" and ending at 11pm on December 31, 2020. The implementation of the Withdrawal Agreement in domestic law was dealt with by the European Union (Withdrawal Agreement) Act 2020 (hereafter “the 2020 Act”). Section 1A of the 2020 Act amended the 2018 Act to, effectively, "save" the European Communities Act 1972 for the duration of the transition period, with the effect that European Union law continued to apply as if the United Kingdom were still a member of the EU. Section 39(1) of the 2020 Act defined the end of the transition period on 31 December 31 2020, at 11:00 pm as “IP completion day”.

Art 67 of the Withdrawal Agreement provides as follows in respect of the arrangements established by Part Four of the Withdrawal Agreement for legal proceedings instituted before the end of the transition period on IP completion day:

“Article 67

Jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities

1.

In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, in respect of legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings pursuant to Articles 29, 30 and 31 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council (73), Article 19 of Regulation (EC) No 2201/2003 or Articles 12 and 13 of Council Regulation (EC) No 4/2009 (74), the following acts or provisions shall apply:

(a)

the provisions regarding jurisdiction of Regulation (EU) No 1215/2012;

(b)

the provisions regarding jurisdiction of Regulation (EU) 2017/1001, of Regulation (EC) No 6/2002, of Regulation (EC) No 2100/94, of Regulation (EU) 2016/679 of the European Parliament and of the Council (75) and of Directive 96/71/EC of the European Parliament and of the Council (76);

(c)

the provisions of Regulation (EC) No 2201/2003 regarding jurisdiction;

(d)

the provisions of Regulation (EC) No 4/2009 regarding jurisdiction.

2.

In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, the following acts or provisions shall apply as follows in respect of the recognition and enforcement of judgments, decisions, authentic instruments, court settlements and agreements:

(a)

Regulation (EU) No 1215/2012 shall apply to the recognition and enforcement of judgments given in legal proceedings instituted before the end of the transition period, and to authentic instruments formally drawn up or registered and court settlements approved or concluded before the end of the transition period;

(b)

the provisions of Regulation (EC) No 2201/2003 regarding recognition and enforcement shall apply to judgments given in legal proceedings instituted before the end of the transition period, and to documents formally drawn up or registered as authentic instruments, and agreements concluded before the end of the transition period;

(c)

the provisions of Regulation (EC) No 4/2009 regarding recognition and enforcement shall apply to decisions given in legal proceedings instituted before the end of the transition period, and to court settlements approved or concluded, and authentic instruments established before the end of the transition period;

(d)

Regulation (EC) No 805/2004 of the European Parliament and of the Council (77) shall apply to judgments given in legal proceedings instituted before the end of the transition period, and to court settlements approved or concluded and authentic instruments drawn up before the end of the transition period, provided that the certification as a European Enforcement Order was applied for before the end of the transition period.

3.

In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, the following provisions shall apply as follows:

(a)

Chapter IV of Regulation (EC) No 2201/2003 shall apply to requests and applications received by the central authority or other competent authority of the requested State before the end of the transition period;

(b)

Chapter VII of Regulation (EC) No 4/2009 shall apply to applications for recognition or enforcement as referred to in point (c) of paragraph 2 of this Article and requests received by the central authority of the requested State before the end of the transition period;

(c)

Regulation (EU) 2015/848 of the European Parliament and of the Council (78) shall apply to insolvency proceedings, and actions referred to in Article 6(1) of that Regulation, provided that the main proceedings were opened before the end of the transition period;

(d)

Regulation (EC) No 1896/2006 of the European Parliament and of the Council (79) shall apply to European payment orders applied for before the end of the transition period; where, following such an application, the proceedings are transferred according to Article 17(1) of that Regulation, the proceedings shall be deemed to have been instituted before the end of the transition period;

(e)

Regulation (EC) No 861/2007 of the European Parliament and of the Council (80) shall apply to small claims procedures for which the application was lodged before the end of the transition period;

(f)

Regulation (EU) No 606/2013 of the European Parliament and of the Council (81) shall apply to certificates issued before the end of the transition period.”

The application of Art 67 of the Withdrawal Agreement falls to be considered with the context of the provisions of the Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2020. The Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2020 amended Part 4 of the Jurisdiction and Judgements (Family) (Amendment etc) (EU Exit) Regulations 2019, comprising the saving and transitional provisions in Regulation 8 as set out above. Those amendments made clear that, for cases to which Art 67 of the Withdrawal Agreement applied, the changes made by the Jurisdiction and Judgements (Family) (Amendment etc) (EU Exit) Regulations 2019 were of no effect. Specifically, Regulation 8 of the Jurisdiction and Judgements (Family) (Amendment etc) (EU Exit) Regulations 2019 was substituted as follows:

“Saving and transitional provisions

8.

—(1) Nothing in these Regulations affects the application of paragraphs 1, 2(b) and (c) and 3(a) and (b) of Article 67 of the withdrawal agreement and legislation amended or revoked by these Regulations continues to have effect for the purposes of those paragraphs as if the amendments and revocations had not been made.

(2)

The amendments and revocations made by these Regulations do not apply in relation to—

(a)

proceedings before a court seised before IP completion day in reliance upon the provisions of Schedule 6 (allocation within the United Kingdom of jurisdiction relating to maintenance matters) to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011; or

(b)

proceedings before a court seised, whether before or after IP completion day, in reliance upon a choice of court agreement concluded before IP completion day in accordance with Article 4 of Council Regulation No. 4/2009 or that Article as applied by paragraph 5 of Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011.

(3)

For the purposes of this regulation, a court is seised—

(a)

at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps the applicant was required to take to have service effected on the respondent; or

(b)

if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps the applicant was required to take to have the document lodged with the court.”

Finally, with respect to initiating requests under the Maintenance Regulation made after IP completion day, the legal rules governing cross-border recognition and enforcement of maintenance involving parties from EU member states are contained in the 2007 Hague Convention.

Pursuant to r.1.1 of the FPR 2010, the court is required to case manage the proceedings in accordance with the overriding objective:

“The overriding objective

1.1.—(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.

(2)

Dealing with a case justly includes, so far as is practicable—

(a)

ensuring that it is dealt with expeditiously and fairly;

(b)

dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c)

ensuring that the parties are on an equal footing;

(d)

saving expense; and

(e)

allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.”

Within this context, r.4 of the FPR 2010 sets out a non-exhaustive list of case management powers available to the court, including the general power contained in r.4.1(3).

The courts have repeatedly emphasised the importance of complying with case management orders. Effective case management, and in turn the proper administration of justice, depend on strict compliance with orders of the family court, on time and to the letter (see Re W [2013] EWCA Civ 1177, [2014] 1 W.L.R. 1993; Re W [2013] EWCA Civ 1227, [2014] 1 WLR 1611). Compliance with case management orders is especially important in children proceedings, where the court must have regard to the statutory principle contained in section 1(2) of the Children Act 1989 which states that any delay is likely to prejudice the welfare of the child concerned (see London Borough of Redbridge v A, B and E (Failure to Comply with Directions) [2016] EWHC 2627 (Fam)). Within this context, it has also been repeatedly emphasised that the grounds on which an appellate court will intervene in case management decisions are limited. Black LJ (as she then was) articulated the delicate balance to be struck between deference and intervention in Re B (A Child) [2012] EWCA Civ 1742, [2013] 1 FLR 963:

“Robust case management…very much has its place in family proceedings but it also has its limits…a judge making case management decisions has a very wide discretion and anyone seeking to appeal against such a decision has an uphill task.”

Against this, and as Black LJ (as she then was) stated in Re B (A Child), robust case management has its limits and, within the context of the Overriding Objective in r.1.1 of the FPR 2010, the court must be measured in its response to non-compliance. As noted by Jackson J (as he then was) in R v R (Family Court: Procedural fairness) [2014] EWFC 48, [2015] 1 W.L.R. 2743:

“[56] Despite everything that went wrong in this case, I have considerable sympathy for the position of the district bench in situations of this kind. The judge conducting a busy list does not have the time to pore over every detail in the way that can occur on an appeal. For the system to function, it is necessary for a robust view to be taken about compliance with directions. That much has been said by Sir James Munby P, on a number of occasions: see, for example, In re W (A Child) (Adoption Order: Leave to Oppose) (Practice Note) [2014] 1 WLR 1993, where he emphasised that orders must be obeyed or extensions of time sought.

[57] Likewise, there has over the past year been evolving guidance from the Court of Appeal in the parallel context of the Civil Procedure Rules in Mitchell v News Group Newspapers Ltd (Practice Note) [2014] 1 WLR 795 and Denton v TH White Ltd (De Laval Ltd, Part 20 defendant) (Practice Note) [2014] 1 WLR 3926. It may be that the uncompromising approach taken by the district judge in the present case reflected the influence of the decision in Mitchell’s case, which has since been further refined in Denton’s case.

[58] However, despite the manifest strains on the system, the fundamental obligation to deal with cases justly must prevail. The Family Court’s task is to apply the Family Procedure Rules to the facts.”

As Peter Jackson J (as he then was) went on to note in R v R (Family Court: Procedural fairness), the matters the court is required to have regard to when considering how to respond to the breach of a case management order can be gleaned from the provisions of Part 4 of the FPR 2010 that deal with relief from sanction:

“(1)

On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –

(a)

the interests of the administration of justice;

(b)

whether the application for relief has been made promptly;

(c)

whether the failure to comply was intentional;

(d)

whether there is a good explanation for the failure;

(e)

the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre –action protocol(GL);

(f)

whether the failure to comply was caused by the party or the party's legal representative;

(g)

whether the hearing date or the likely hearing date can still be met if relief is granted;

(h)

the effect which the failure to comply had on each party; and

(i)

the effect which the granting of relief would have on each party or a child whose interest the court considers relevant.

(2)

An application for relief must be supported by evidence.”

Finally, lack of representation will often justify making allowances in making case management decisions and in conducting hearings, but it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court (Barton v Wright Hassall LLP [2018] UKSC 12, [2018] 3 All ER 487).

Having considered carefully the submissions in this case, I am satisfied that the appeal must be allowed on Grounds 1 to 3. I do not consider it necessary to deal with Ground 4. My reasons for so deciding are as follows.

It is convenient to deal first with Grounds 1 and 3 of the Grounds of Appeal together. With respect to Ground 1, the father now accepts that the date on which the mother’s application was instituted was 17 September 2019, in circumstances where the record shows that her original application for maintenance was made on 8 August 2019 via the Irish Central Authority, transmitted to the REMO unit in England in September 2019, and formally accepted by the Family Court on 28 July 2020. As I have noted, the order of that date records the application as having been issued on 17 September 2019. Accordingly, 17 September 2019 is the correct date of institution.

Within the context of that concession, I turn next to consider Ground 3 of the Grounds of Appeal and the question of whether the Judge erred in his analysis of Article 67 of the Withdrawal Agreement and was wrong to conclude that no valid application existed under Article 56 of the Maintenance Regulation as at 20 March 2025 because there was no existing maintenance decision.

The mother’s submission is that, in circumstances where her application to establish an maintenance decision under Art 56 was commenced before the end of the implementation period at 11pm on 31 December 2020, the Maintenance Regulation continued to apply in its entirety to her case, including the ability of the English court to establish a maintenance decision under Art 56(1)(c) in an application issued before that date.

On behalf of the mother, Mr Bennett submits that, read as a whole, Art 67 of the Withdrawal Agreement, and the domestic secondary legislation giving it effect, demonstrates that all ongoing establishment cases commenced under the Maintenance Regulation prior to 31 December 2020 continued to be governed by that scheme. In support of that submission, he relies on the following matters:

Mr Bennett submits that any other interpretation of the effect Art 67 and its associated domestic secondary legislation would result in the practical, and non-sensical, outcome of the Judge’s decision being that the mother’s validly constituted proceedings simply vanished into the ether at 11pm on 31 December 2020, notwithstanding that at the time she made her application, on 17 September 2019 (a) the mother fell within the scope of the Maintenance Regulation, as a person seeking a child maintenance determination, (b) the English court had jurisdiction based on the father’s habitual residence, as he concedes, (c) the mother made her application using the procedure specified by the Maintenance Regulation, and (d) the English court was properly seised of her application pursuant to the order of the Assistant Justices’ Clerk.

The father concedes that, at the date the mother’s application was first made on 17 September 2019, the application was transmitted under the procedure required by the Maintenance Regulation and he was habitually resident in England (and was at the material time). In the circumstances, the father concedes that, as at the date the mother’s application was instituted, the English court had jurisdiction under Art 3(a) of the Maintenance Regulation with respect to that application.

However, the father submits that following the United Kingdom leaving the European Union, the transitional provisions under Article 67 of the Withdrawal Agreement preserved only those aspects of the EU Maintenance Regulation relating to the recognition and enforcement of maintenance decisions in existence by 11pm on 31 December 2020. The father contends that nothing in the Withdrawal Agreement permits the use of transitional regime to establish new maintenance obligations after the end of the transition period at 11pm on 31 December 2020.

The father submits that this interpretation is supported by the plain language of Art 67(2)(c), which refers expressly to “recognition and enforcement”. The father submits that this has the effect of limiting the continued application of Art 56 to the recognition and enforcement of those “decisions, authentic instruments, court settlements and agreements” that were concluded before the end of the transition period at 11pm on 31 December 2020. Within this context the father submits that, in circumstances where Art 67 preserves the mechanisms for recognition and enforcement of decisions rendered before 11pm on 31 December 2020 but not the mechanisms for the creation of new maintenance obligations after that date, any applications under Art 56(1)(c) of the Maintenance Regulation for the establishment of a maintenance decision that remained undetermined at that date required to be moved to the relevant framework provided by domestic law.

Thus, argues the father, even if the mother’s application to establish a fresh maintenance order under Art 56 of the Maintenance Regulation is treated as having been instituted properly in September 2019, the court was not obliged nor, arguably, permitted to entertain that application on 20 March 2025 where the transition period had ended. He contends that, since 1 January 2021, the 2007 Hague Convention governs cross-border maintenance cases between the United Kingdom and the European Union and, after that date, the mother’s outstanding application under Art 56 of the Maintenance Regulation fell to be dealt with under the 2007 Hague Convention, either by treating the application as a purely domestic one, under Schedule 1 of the 1989 Act (the father conceding that the relevant terms of Schedule 1 paragraph 14 are met in this case), or by re-transmitting the application under the 2007 Hague Convention via the Central Authorities.

It can be seen that the essential difference between the positions of the mother and the father on Ground 3 centres on which law and procedure governed the determination of the mother’s application as at 20 March 2025. The mother submits that it remained the relevant provisions of Maintenance Regulation. The father submits that, whilst Art 67 of the Withdrawal Agreement kept the jurisdiction under Art 3(a) of the Maintenance Regulation “in place” (he submits to prevent any argument that a court has lost jurisdiction during proceedings), Art 67 did not preserve the power to grant a new maintenance decision under Art 56(1)(c) of the Maintenance Regulation beyond 31 December 2020.

Did, then, the Judge err in accepting the father’s submission as to the effect of Art 67 of the Withdrawal Agreement and in thereby concluding that the Maintenance Regulation continued to operate only in respect of the recognition and enforcement maintenance decisions that had been made by 11pm on 31 December 2020? I am satisfied that he did.

Whilst the father’s Skeleton Argument concentrates, almost exclusively, on what he submits is the effect of Art 67(2)(c) and (d) of the Withdrawal Agreement, Art 67 of the Withdrawal Agreement must be read as a whole, read with the relevant secondary domestic legislation that implemented it and read with the terms of the Maintenance Regulation itself.

The full title of the Maintenance Regulation is 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 maintenance obligations. Within this context, the Maintenance Regulation makes provision for, inter alia, jurisdiction (Chapter II), recognition and enforcement (Chapter IV) and co-operation between central authorities (Chapter VII). The provisions in Chapter VII of the Maintenance Regulation include provision, pursuant to Art 51(1), for the Central Authorities to transmit and receive applications from the requesting State to the requested State under Art 56. Thus, in the present context, the Central Authority was required, pursuant to Art 51(1)(a) and Art 58(2), to transmit from the requesting State, Ireland, to the requested State, the United Kingdom, the mother’s request under Art 56(1)(c) for the establishment of a maintenance decision.

Having regard to the foregoing scope of the functions under the Maintenance Regulation, I am not able to accept the father’s central submission that the references in Art 67(2)(c) to “recognition and enforcement” act to exclude all other functions of the Maintenance Regulation after 11pm on 31 December 2020, including a request for the establishment of a maintenance decision under Art 56(1)(c). Indeed, I am satisfied that this is plainly not the effect of Art 67(2)(a) when Art 67 is read as a whole and in the context of the domestic secondary legislation which implements the Withdrawal Agreement.

Art 67(1) of the Withdrawal Agreement begins with the words “In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, in respect of legal proceedings instituted before the end of the transition period...the following acts or provisions shall apply” (emphasis added). Within this context, Art 67(1)(d) expressly provides that the provisions of the Maintenance Regulation regarding jurisdiction in Chapter II will continue to apply “in respect of legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings” (emphasis added). Art 67(2)(c) provides that the provisions of the Maintenance Regulation regarding recognition and enforcement in Chapter IV “shall apply to decisions given in legal proceedings instituted before the end of the transition period...” (emphasis added). Finally, Art 67(3)(b) of the Withdrawal Agreement is drafted so as to provide that the provisions of the Maintenance Regulation will continue to apply to applications for recognition or enforcement “and requests received by the central authority of the requested State before the end of the transition period” (emphasis added). Those latter words in Art 67(3)(b) clearly encompass the co-operation between central authorities provided by Chapter VII of the Maintenance Regulation, including the requirement for Central Authorities to transmit requests under Art 56(1)(c) of the Maintenance Regulation from the requesting State to the requested State (see Dicey, Morris & Collins (Companion Volume to the 16th edition) at [CompV19-034]).

When Art 67 is read as a whole, rather than simply reading Art 67(2)(c) in isolation, it can be seen that Art 67 saves each of the core functions of the Maintenance Regulation (i.e. the provisions as to jurisdiction, the provisions as to recognition and enforcement and the provisions as to co-operation between central authorities) where those functions have been instituted prior to the end of the implementation period on 31 December 2020 at 11pm, including “requests received by the central authority of the requested State before the end of the transition period” pursuant to Art 67(3)(b). Whilst that conclusion is plain from the terms of Art 67 itself, I also note that this is the interpretation adopted by Dicey (see Dicey, Morris & Collins (Companion Volume to the 16th edition) at [CompV19-019]). It is also in line with the broader obiter comments of Lord Leggatt in the Supreme Court in Potanina v Potanin at [102], that the Maintenance Regulation remains applicable to proceedings begun before 11pm on 31 December 2020.

The foregoing interpretation of Art 67 is also consistent with the preservation by Art 67(1) of the jurisdictional scheme of the Maintenance Regulation by Art 67(1)(d), the preservation by Art 67(1) of the lis pendens provisions in Art 12 and Art 13 of the Maintenance Regulation and the preservation by Art 67(2)(c) of the recognition and enforcement regime for both legal proceedings instituted before 11pm on 31 December 2020 and judgments executed prior to that date. In particular, there would be little need for Art 67(1) to save the lis pendens provision in the Maintenance Regulation in proceedings begun prior to 31 December 2020, thereby preventing parties who have engaged the Maintenance Regulation to establish a maintenance decision in one Member State from issuing separate proceedings in another Member State, if the proper interpretation of Art 67 is that those extant proceedings do not survive the end of the transition period. Likewise, there would no need for Art 67(2)(c) to distinguish between recognition and enforcement in legal proceedings instituted before 11pm on 31 December 2020 and recognition and enforcement judgments executed prior to that date if the former could not continue beyond the end of the transition period.

I am also satisfied that the interpretation of Art 67 I have set out above is broadly consistent with the view taken by the civil courts in cases concerning the application of the similar provisions of Brussels Recast in proceedings instituted prior to the end of the transition period. This is particularly so in circumstances where the Supreme Court has recognised, in Villiers v Villiers, that the Maintenance Regulation is “in line with” Brussels Recast. There is, in my judgement, no principled basis for distinguishing between the position under Brussels Recast, as identified in the decisions of The Estate of Winsley & Ors v Gisel, Simon v Tache and On the beach Ltd v Ryanair UK Ltd & Anor, and the position under the Maintenance Regulation, albeit that I acknowledge those cases were decided under a different regime and on different facts.

Finally, I am satisfied that the foregoing interpretation of Art 67 is not altered by the domestic secondary legislation. As I have noted, the United Kingdom was not bound by the 2007 Hague Protocol. The court was therefore entitled to apply domestic law, pursuant to the provisions of Art 56(4) of the Maintenance Regulation. The Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2020 amended Part 4 of the Jurisdiction and Judgements (Family) (Amendment etc) (EU Exit) Regulations 2019. These amendments made clear that, for cases to which Art 67 of the Withdrawal Agreement applied, the changes made by the Jurisdiction and Judgements (Family) (Amendment etc) (EU Exit) Regulations 2019 were of no effect with respect to the application of paras 1, 2(b) and (c) and 3(a) and (b) of Article 67 of the Withdrawal Agreement. The legislation amended or revoked by the 2019 Regulations, including the Maintenance Regulation, continued to have effect for the purposes of those paragraphs of Art 67 as if the amendments and revocations had not been made.

In these circumstances, I am satisfied that at the date of the final hearing the mother’s request to establish a maintenance decision pursuant to Art 56(1)(c) of the Maintenance Regulation fell within the scope of Art 67(3)(b) of the Withdrawal Agreement. I accept Mr Bennett’s submission that to interpret the provisions of Art 67 in any other way would mean that the mother’s application ceased to exist on 31 December 2020 in circumstances where neither Art 67 nor the domestic secondary legislation provides any explicit provisions as to what is to happen to it thereafter. On the father’s case, a litigant with a pending application to establish a maintenance order that remained outstanding as at 11pm on 31 December 2020 would be left to work out for themselves the position that the father argues is implicit in his interpretation of Art 67. Namely, that any extant proceedings for a maintenance issued prior to, but not determined by, 11pm on 31 December 2020 move, either in some unspecified manner, or at the litigant’s instigation, to the domestic regime.

Accordingly, I am satisfied that the Judge erred in his analysis of the effect of Art 67 of the Withdrawal Agreement and was wrong to conclude that the court had no jurisdiction to entertain at the final hearing the mother’s application under Art 56(1)(c) of the Maintenance Regulation to establish a maintenance decision. In circumstances where the mother had made her request to establish a maintenance decision pursuant to Art 56(1)(c) of the Maintenance Regulation prior to 11pm on 31 December 2020, the English court had jurisdiction to determine that application. Accordingly, Grounds 1 and 3 of the appeal must succeed.

As recorded in the order of 20 March 2025, before articulating his decision that the court had no jurisdiction to determine the mother’s application, the Judge held that the mother’s application should be dismissed on the ground that she had failed to comply with the order of HHJ Vincent dated 9 September 2024 and the order of the Judge dated 8 November 2024. I am satisfied that the Judge was wrong to do so in circumstances where the mother had, in fact, substantially complied with those orders and where the dismissal of the mother’s application on this basis was, in any event, disproportionate in all the circumstances.

There was significant confusion at the hearing as to what documents had been provided to the court by the mother. The mother reiterated on a number of occasions that she had provided to the court the documents directed in the order of HHJ Vincent on 9 September 2024 and the order of the Judge dated 8 November 2024. Whilst the Judge asserted he had not seen that material, it is also clear from the transcript that he was dismissive of the mother’s efforts to persuade him that the material had been provided, the Judge even appearing at one point to refuse to look at information that the mother stated would confirm that she had provided the documents to the court:

“JUDGE: Ms W.

MS W Judge, I have sent all the bank statements, V’s school reports; I’ve sent everything. I have the dates of everything that I have sent.

JUDGE: That is sent to Mr F?

MS W: I have screen – I have everything recorded on my phone, Judge.

JUDGE: Did you send it to Mr F, as you were required to do?

MS W: Yes, Judge. Yes, I did, and I can even show you the screenshot of who it’s been sent to.

JUDGE: I do not need to see it. Tell me what the legal basis of your claim, then, is? Because there is no precipitant enforcement because there is no order for V, and he is now over 18.”

Within the foregoing context, it is apparent from the transcript that the Judge had not confirmed with sufficient certainty what the mother had or had not done to comply with the court’s directions at the point he determined her application should be dismissed for not having done so. That position is thrown into further and sharper relief in circumstances where, having appeared to refuse the assistance offered by the mother during the hearing to demonstrate what she had filed and served in compliance with the case management directions, the Judge later demonstrated his ability, and his willingness, to check the position for himself and in detail using the court file. This again occurred during the exchanges he had with the father and his wife after he had told the mother to leave the hearing:

“JUDGE: She sent me other stuff about V. I will tell you what I actually do have, and then you can have that.

MS F: Thank you.

MR F: And I haven’t actually been able to get anything. I have tried to communicate with the school. I have tried to communicate with everyone, just so that we can –

MS F: I tried to communicate with her, as well, in a polite way, but –

MR F: Yeah.

JUDGE: She does not care. “

And:

“JUDGE: Let me see what she has sent me.

MS F: Thank you so much.

JUDGE: She has sent me something.

MR F: It makes it so awkward. It just makes it so unreal.

JUDGE: It is awful.

MR F: It just makes it so – and she makes so –

MS F: It’s so unfair. It’s so unfair.

MR F: - she takes in so much money. We calculated it about 80 thousand a year.

MS F: In benefits, yeah. Yeah.

MR F: Oh yeah, I’ve got this.

JUDGE: Oh okay, that is fine, then.

MS F: These are the reports.

MR F Yeah, yeah. I’ve got this.

MS F: Yeah, that was the one she sent.

JUDGE: I am just seeing if there is anything else that she has sent.

MR F: Yeah, the only thing that I received is this.

JUDGE: Let me see if there is anything else that she sent in to the court.”

Following these exchanges, the Judge arranged for the documents that he appears to have been able to extract from the court file to be photocopied by the Usher and provided to the father and his wife. The precise nature of the documents under discussion at this point is not clear from the transcript. However, the fresh evidence admitted by this court at the outset of the appeal hearing makes clear that the mother had indeed provided to the court office and to the MEBC the following material as directed by HHJ Vincent on 9 September 2024 and the Judge on 8 November 2024, which material also appears to have been copied to the father:

The genesis of the Judge’s view that the mother had not complied with the case management order of HHJ Vincent of 9 September 2024 and the judge’s own order of 8 November 2020 appears to be the father’s statement to the Judge that he had not received the mother’s witness statement and accompanying evidence that the mother had been directed to file and serve. The father, and his wife, again confirmed this in terms in the following exchange with the Judge:

“JUDGE: Okay, and final point – Well, no, I will come to you in a moment. I have got to hear from Mr F first. Did you receive the witness statement?

MR F: No, Judge. No, there wasn’t. There was only the position statement, which I believe did not include what Judge Vin –

MS F: Judge Vincent ordered.

JUDGE: Judge Vincent ordered, yes.

MR F: Vincent ordered. Judge, on the day Judge Vincent make it very clear because she had not complied with two other orders before that, and she made it very clear that if this was not sent, she was prepared to just kick the – to dismiss the case.

JUDGE: Yes.

MR F: And we did not receive those. We did not receive – apart from the school report, in December, we did not receive anything else whatsoever.

JUDGE: Did you get the name and address of V’s treating doctor?

MR F: No, no.

JUDGE: Have you had that so far?

MR F: Nope.

JUDGE: Have you had the details of his school and college reports?

MR F: Nope. Yes. Sorry, yes.

JUDGE: And up to date bank statements?

MR F: No.”

Against this, and as I have noted, the fresh evidence admitted on this appeal suggests that the father had been copied in to the documents that the mother had filed with the court and the MEBC by email, pursuant to the case management directions. It is further clear from the transcript that the father conceded to the judge that he had, in fact, received certain of the documents that were attached to the emails that this court has now seen. In addition, the emails now available show that, at the request of the father, the mother answered an extensive number of questions emailed to her by the father and aimed at clarifying matters contained in the documents that the mother had, as evidenced by the questions the father was asking, sent to him. Notwithstanding this, the father sought to paint a picture to the Judge that he had been prevented by the mother from seeing the majority of the evidence directed by the court.

Whilst the Judge was heavily critical of the mother’s position with respect to compliance with the case management directions, he did not adopt a similarly critical approach to the father’s case management defaults during the course of the long-delayed proceedings.

As set out above, prior to the first hearing on 26 March 2021 the father refused to complete a Form E1 as directed. He failed to attend that hearing. He also failed to attend the adjourned hearings on 21 May 2021 and 24 September 2021, having in respect of the latter emailed the court stating his refusal to attend. At a further adjourned hearing on 28 January 2022, the father answered the telephone but was not prepared to engage with the court. The father failed to pay half of the costs of preparing the bundle notwithstanding being directed to do so by the court, a direction the father remains in default of. The father failed to file and serve the witness statement as directed by the order of the court dated 21 December 2022. More recently, on 8 November 2024 the Judge had directed that the father send to the court an index to a revised bundle without the enclosures for the court to approve the content of the bundle which would then be prepared and sent by the mother and the father. The father did not do so. None of these defaults on the part of the father, which also contributed to the significant delay in the proceedings, appear to have factored in the Judge’s decision to dismiss the mother’s application for failure to comply with court orders. Rather, at points in his exchange with the mother, the Judge appeared to lay the entirety of the over five-year delay in the proceedings at the feet of the mother.

Indeed, it is not apparent from the very brief reasons given by the Judge for dismissing the mother’s application that he had considered in detail any of the key factors relevant to that decision, including whether the failure by the mother was intentional or not, whether there was a good explanation for any apparent default (the Judge does not, for example, deal with the mother’s contention that she had sent the evidence directed to both the court and the MEBC and why he rejected that contention), the extent to which the mother had complied with other directions during the proceedings, the reasons for any apparent default, the effect on failure to comply on the father (which, as I have noted, the father had been less than frank about) and why dismissing the mother’s application was in the interests of the administration of justice.

Finally, it is not clear that the mother was put on notice by the relevant orders that her application would be dismissed if she failed to comply with those orders. The recital to the order of HHJ Vincent records mother was warned about “adverse inferences” being drawn if she did not comply with the case management directions set out in the order. However, there was no mention of risk of her claim being summarily dismissed for failure to so comply. In the circumstances, the father’s statement to the Judge during the hearing that “on the day Judge Vincent make it very clear because she had not complied with two other orders before that, and she made it very clear that if this was not sent, she was prepared to just kick the – to dismiss the case” was not what was recorded in HHJ Vincent’s order. The order made by the Judge on 8 November 2024 contains no recital concerning compliance. Neither order could be said to constitute an ‘unless’ order.

Within the foregoing context, I am satisfied that the Judge’s decision to dismiss the mother’s application to establish a maintenance decision for failure to comply with the case management directions of the court was wrong and that therefore the mother’s appeal must also succeed on Ground 2.

It is not disputed that the Judge failed to deal with the application for permission to disclose details of the proceedings to the press, and this is clear from the transcript. I am, however, satisfied that it is not necessary to deal with this ground of appeal in circumstances where the application remains to be determined and any decision on appeal would more appropriately follow a determination of the substantive application. In the circumstances, I make no further comment on Ground 4, it being appropriate to await a decision on the mother’s application before considering any appeal if necessary.

Accordingly, I allow the mother’s appeal on Grounds 1 to 3 inclusive for the reasons I have given. Whilst the father submitted that even if the court found his reasoning to be deficient, the Judge reached the right answer, I am satisfied that the deficits in the Judge’s reasoning and approach render his decision unsustainable. In the circumstances, and regrettably given the enormous delay that has already occurred in these proceedings to date, this means the matter must be remitted for determination of the mother’s application to establish a maintenance decision. Given the issues involved, I intend to remit the matter to the Designated Family Judge, or a Circuit judge nominated by her, for final hearing. Nothing in this judgment should be taken as a comment on the substantive merits of the application, which will be a matter for the judge at the final hearing.

Mr Bennett submits that this case represents not only “a procedural and legal travesty”, but a state of affairs that is wholly inimical to the underlying purpose of the Maintenance Regulation and international child maintenance law generally, existing as they do to advance the best interests of children through the provision of swift decision making and enforcement in international child maintenance cases. In this context, Mr Bennett reminds the court that Art 27(4) of the UN Convention on the Rights of the Child, to which the United Kingdom is a signatory, provides that:

“4.

States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements”.

On 14 August 2019, when V was a child, the mother correctly made a request under the Maintenance Regulation to establish a child maintenance decision. Over five years and fourteen hearings later, the Judge, by his order of 20 March 2025, wrongly dismissed the mother’s application on account of alleged failures to comply with directions for the filing and serving of evidence and for want of jurisdiction.

Within the foregoing context, the course these proceedings have followed has been wholly antithetic to the fundamental aim of the legal frameworks that govern international child maintenance, both those in place before the United Kingdom left the European Union and those which are now in place following that departure. As will be evident from this judgment, a constellation of matters appears to have contributed to the delay in this case. Whilst a court must always be cautious in drawing lessons from a single, difficult case, it does seem to me that the following points should be borne in mind in future cases:

This is not the first time that an international child maintenance case involving complex issues has encountered extensive delays (see, for example, the decisions of this court in C v D (No2) (2007 Hague Convention) [2024] EWFC 36 and J v J (Appeal Against Registration) [2024] EWFC 356). The President has recently approved the appointment of lead judge for REMO, who will no doubt consider the best way to address the issues that have arisen in this and other cases. I will invite the parties to submit a draft order for approval by the court.