MS v PS

Introduction

The applicant in these proceedings is German. The respondent is English. They married in 2005 and separated in 2012. During their marriage, two children were born. They are now 9 and 5 years old. The applicant obtained a divorce in the Amtsgericht (District Court) Walsrode and, in the course of those matrimonial proceedings, the court made an order for maintenance for the two children. That order was made on 7 August 2014 (“the German order”).

Since the divorce, the children and their mother have remained living at their home in Germany. Their father, the respondent, lives and works in England. At the present time he is refusing to pay maintenance under the terms of the German order because he alleges that the applicant is obstructing his contact with the children. By her current application, issued on 7 August 2014, she seeks to enforce the German order under the provisions of the Council Regulation (EC) Maintenance Regulation 4/2009 (“the Maintenance Regulation”). On 28 April 2015, the Family Court sitting in Lincoln transferred her application to the High Court and directed that the matter should be listed before me in July 2015.

The matter came before me on 14 July 2015. On that occasion, Mr Timothy Scott QC appeared on behalf of the applicant with Ms Melanie Barnes. The respondent did not appear but was represented by counsel, Mr Edmund Farrell.

The preliminary issue for determination when the matter came before me was whether, as the applicant contends, an application for enforcement of this type of maintenance order can be issued directly in the Family Court or whether, in all cases, the application must first be lodged with the Lord Chancellor for onward transmission to the Family Court through the Reciprocal Enforcement of Maintenance Orders Unit (“REMO”).

The issue is not entirely straightforward and two recent decisions in the English court demonstrate an internal inconsistency of judicial approach. In the recent case of EDG v RR [2014] EWHC 816 (Fam), Mostyn J held that this type of enforcement action could be issued directly in the Principal Registry of the Family Division (as it then was) (Footnote: ¹). He concluded that there must be an error in the domestic legislation which implements the European legislation which, on its face, prevents direct applications. Less than a year after that decision, a similar issue confronted Sir Peter Singer sitting as a Deputy High Court Judge. In that case, AB v JJB [2015] EWHC 192 (Fam), the court was dealing with an application for modification of a maintenance order rather than enforcement of such an order. Whilst recognising the ‘ambiguity’ which Mostyn J had identified in EDG v RR, his lordship did not consider it necessary to express a view about the correct approach, despite the fact that his own analysis of the legislation was not on all fours with that followed by Mostyn J.

When the matter was raised with REMO in the context of the case before me, it stated that there was no error: the wording was intended. Thus the position remains unresolved. Given that there are a great number of pending applications for enforcement from creditors in other Member States which are currently being processed, authoritative determination is needed. It was agreed by both parties and their legal advocates that the swiftest route to secure such determination was a referral of the preliminary issue by means of questions to the Court of Justice of the European Union.

It is a course which I propose to endorse. However, before setting out the questions to which answers are required, I consider that it is appropriate to set out some background in order to give some contextual frame to the manner in which the ambiguity appears to have arisen.

Background: the legal framework to the Maintenance Regulation

The predecessor of the Maintenance Regulation (and also of Brussels IIA and Brussels I) was the 1968 Brussels Convention. Maintenance was included within the scope of that Convention and was absorbed within Brussels I when that Regulation came into force in 2003. Brussels I was primarily concerned with civil and commercial judgments and, in April 2004, the European Commission was presented with a Green Paper on Maintenance Obligations. Its object was to open a debate about how courts should deal with the problems encountered as between individual maintenance creditors and individual Member States. A key objective was identified in these terms:

“… it is clearly indispensable to seek out means of enabling judgments to be recognised and enforced as quickly as possible. It must be borne in mind that the settlement of a maintenance claim is always rather urgent and that, as long as debtors have a remedy allowing them to defend their rights in the event of a dispute, the creditor’s rights must be regarded as predominant.”……

“The study report shows that the cross-border recovery of maintenance payments in the European law-enforcement area encounters all manner of difficulties even before the judgment awarding maintenance is given, on account of the deficiencies in cooperation between States, or at the actual enforcement stage.

Merely abolishing the exequatur would not suffice to remove all obstacles to recovery of maintenance claims … and other measures would have to be put into effect.”

As a result, the following year, the European Council requested the Commission to prepare a draft instrument on the recognition and enforcement of decisions. Its stated objective was to “accelerate and simplify enforcement of decisions in order to guarantee the effective recovery of maintenance”: see 2005 Commission Staff Working Document (n 94) s 3.

That was to lead to the new Maintenance Regulation which was adopted in December 2008 and took effect across EU Member States with effect from 18 June 2011. Its full title is Council Regulation No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. There is a direct nexus between the Maintenance Regulation and Brussels IIA since the latter establishes jurisdiction in an application for divorce and parental responsibility where maintenance is ancillary to those proceedings. Procedure for such an application is governed by the Family Procedure Rules 2010 (FPR 2010), as amended. Its target of ease of enforceability is reinforced by Recital 9 in these terms:

The underlying objectives of ease of enforceability and protection for maintenance creditors were highlighted by the court on the first occasion when the CJEU had to consider the Maintenance Regulation (Footnote: ²): see Sanders v Verhaegen; Huber v Huber (Cases 400/13 and 408/13), per Advocate General Jääskinen.

As a formal Council Regulation, the Maintenance Regulation is directly applicable, is of general application, and is binding in its entirety and directly applicable in all Member States: see Article 288 of the Consolidated Treaty on the Functioning of the European Union (TFEU) and Treaty on European Union (TEC) (Footnote: ³). Notwithstanding direct applicability, a Member State is entitled to implement the rights and obligations created by a Council Regulation, but it must not introduce legislation which conflicts with it: see Amministrazione delle Finanze dello Stato v Simmenthal (Case 106/77).

Recognition, enforceability and enforcement of decisions is governed by Chapter IV of the Maintenance Regulation. Section 2 applies to those Member States which are not bound by the Hague Protocol (i.e. Denmark and the United Kingdom). Provisions common to all Member States appear in Section 3. Here, the judgment creditor resides in Germany, a Member State bound by the Hague Protocol, and thus Sections 1 and 3 of Chapter IV are relevant and applicable.

Article 17 of the Maintenance Regulation provides as follows:-

The important principle that a judgment which has been given in another Member State must have the same effects in the requested state as it does in the Member State of origin was the subject of specific comment in the well known case of Hoffman v Krieg [1988] ECR 645.

As to procedure, Article 20 covers the provision of documents for the purposes of enforcement. These documents must be provided to ‘the competent enforcement authorities’. On behalf of the applicant, Mr Scott contends that this clearly presupposes that the applicant for reciprocal enforcement is dealing directly with the English Family Court since that is the organ vested with responsibility for making orders which will result in the enforcement of the order which is the subject matter of the application. On behalf of the respondent, Mr Farrell does not resist that interpretation. On this basis they both contend that, had it been the intention that, in a case under Chapter IV, all relevant documents had to be routed through the Central Authority, this would have been made clear by the draughtsmen.

Common to all applications for enforcement are the provisions set out in Section 3, Articles 39 to 43.

Under Article 41:

Thus, Member States, including the United Kingdom, have the right to make rules of regulation or procedure in relation to their obligations to enforce the orders of other Member States. However, these rules and procedures must be consistent with the overarching scheme of the Maintenance Regulation.

Under Article 42:

It follows, therefore, that in enforcement proceedings in a different Member State, unless that different Member State has an additional jurisdiction to entertain a variation application, in enforcement proceedings in a requested state:

In this context, it is important to bear in mind that a key and over-arching objective of the Maintenance Regulation is to allow a citizen of the European Union to obtain a maintenance decision in one state and to be able to have that decision enforced, without additional procedure, in another state. In accordance with the Green Paper to which I have referred above, maintenance was seen by the EU Commission as being ‘urgent’ since it was intended to enable a creditor “to obtain easily a decision which will be automatically enforceable in another Member State without further formalities”: see recital 9 of the preamble to the Maintenance Regulation.

On behalf of the applicant, Mr Scott submits that since Chapter IV of the Maintenance Regulation provides his client, as an applicant for enforcement, with a right to issue her application directly to the Family Court, any implementing provision which fetters that right is incompatible with the Maintenance Regulation. This was certainly the view taken by Mostyn J in EDG v RR (above); he regarded Article 41 as providing the applicant in that case with a route of direct enforcement whereby the foreign order is treated as if it were a domestic order: see paras 9 and 12 of his lordship’s judgment.

I have been told that many other Member States allow for direct enforcement by these means. Before me in the material placed in the court bundle is a statement from the German Institute for Youth Human Services and Family Law (“DIJuF”), a non-governmental organisation which has official recognition for the international enforcement of German child maintenance orders. The Institute was asked for its views as to whether enforceability in this case should have been achieved via the central authorities within the meaning of Chapter VII of the Maintenance Regulation. The statement is dated 30 June 2015 and comes from the DIJuF Forum fűr Fachfragen (Forum for Expert Debates). Its conclusion on page 3 is clear:

“In our opinion, there is no legal provision of the regulation requiring the applicant to apply for international administrative assistance in addition/previous to the main application.”

I will not in the body of this judgment rehearse this evidence; it can no doubt be made available to the Court of Justice of the European Union if that is considered appropriate. Essentially, the thrust of that evidence was that direct enforcement of the German order was, or should be, readily available.

The position is similar under Scottish law. Under paragraph 5.45 of the current Scottish statutory instrument, the “enforcing court” under paragraph 4(2) of Schedule 1 to the 2011 Regulations means “the sheriff court having jurisdiction in the matter in accordance with Schedule 8 to the 1982 Act”. I am told that Scottish lawyers have confirmed to the applicant’s solicitors that applications do not have to be routed through the Scottish Central Authority, and indeed the Scottish Central Authority does not become involved in direct applications.

I am also reminded that in the recast Brussels I Regulation (which came into force in January 2015), the court to which enforcement applications are to be submitted is the Enforcement section of the Queen’s Bench Division. This process is undertaken directly by the claimant.

The role of Central Authorities is defined and explained in Chapter VII of the Maintenance Regulation. Articles 49 to 63 set out the applications which can be made by and to Central Authorities and the manner in which these are to be dealt with. There is no specific prohibition or even suggestion that applications cannot be made by an alternative route (for example, that permitted under Article 41). However, Article 55 provides as follows:

The Lord Chancellor is the Central Authority for England and Wales and he, in turn, has designated his enforcement function to REMO.

Article 56 sets out the applications which can be made under Chapter VII. The relevant part, for these purposes, is expressed in permissive terms as follows:

Article 51 provides that, where an application is made under Article 56, a Central Authority shall provide assistance and take all appropriate measures including, where circumstances require, the provision of legal aid; assistance to obtain relevant information; and to encourage settlement, for example, through mediation. Thus, if a maintenance creditor does not know where the respondent is living, a Central Authority can assist with the provision of that information. If language barriers are a problem, assistance can be provided.

If Mostyn J is right in his interpretation of the Maintenance Regulation in EDG v RR, Chapter VII (and Articles 56 and 57 in particular) provide an alternative route to enforcement. This route proceeds through the Central Authority, a route which he described as ‘delegated enforcement’. Whilst this route may seem attractive to some applicants in that it relieves the individual of the burden of progressing the application, it also carries with it the disadvantage of being slow. Inevitably, there is an element of delay. As Mostyn J said in paragraphs 4 to 6 of his judgment:

On 11 June 2011 the Civil Jurisdictions and Judgments (Maintenance) Regulations (2011)(“CJJMR 2011”) were implemented as part of English domestic law both to coincide with the introduction of the Maintenance Regulation and to provide the legislative machinery for its future implementation. As explained by Mostyn J in EDG v RR, the competent authority for cross-border implementation up to that point in time was the Magistrates’ Court (to whom applications were transmitted by the Lord Chancellor). Under the terms of CJJMR 2011, various amendments were made to the Magistrates’ Courts Act 1980. New rules were introduced (Footnote: ⁴) which governed procedure together with Part 34 FPR 2010 (Reciprocal Enforcement of Maintenance Orders). With the introduction of the new single Family Court in England and Wales, further amendments have been made to the CJJMR. Two further amendments now leave us in the following position.

Under paragraph 4 of Schedule 1 to the CJJMR (as amended):

Thus, the effect of paragraph 4(2)(a) CJJMR (as recently amended) is that all applications for enforcement under the Maintenance Regulation have to be presented to the Family Court by REMO.It would appear to prevent an application being made, as in this case, by an applicant directly to the Family Court. This, in turn, raises the central point in the preliminary issue as to whether or not this limitation on the mother’s rights is valid or whether it is contrary to the scheme of the Maintenance Regulation. This ambiguity was explained by Mostyn J in paragraph 15 of his judgment in EDG v RR :

For my part, I agree with the learned judge that it would indeed be a bizarre state of affairs if, following the introduction of the single Family Court in England Wales, an institution which will deal with all family work under the auspices of a single court, the enforcement of an order made by a fellow EU State has to be undertaken by magistrates. It would, indeed, be entirely anomalous with established procedure which predated the change in the rules introduced by the CJJMR 2011 and the Family Procedure (Amendment No.3) Rules 2013 (Footnote: ⁵). Whilst the amended FPR do now provide for enforcement through the Family Court, in practice the procedure by which enforcement through the vehicle of REMO is put into effect in the Family Court remains what Mr Scott has referred to as “a second class system” and certainly in the circumstances in which this applicant finds herself. Thus, he submits, Mostyn J’s primary point is not affected. The judge was correct in his analysis that the Maintenance Regulation confers rights in the alternative. On his case, there is nothing in the Regulation to support the hybrid route which REMO now purports to require, namely that an applicant who chooses not to use the Central Authority in his or her state of origin should nevertheless have to route the application via the Central Authority in the requested state.

Nor is any definitive answer to be found in the relevant provisions of FPR 2010. Nothing in r.34.28 FPR or Practice Direction 34C or 34E suggests that applications cannot be made directly to the Family Court. Whereas there are various references to ‘a family court receiving’ such an application, there is no indication of the person or body from whom the application will be received by the Family Court. Whilst there is a reference in para 7.3 of PD34E to ‘an application for enforcement … made under Article 56 of the Maintenance Regulation’, the substance merely prescribes the form which is to be used in a situation where the enforcement application is transmitted by one Central Authority to another under Article 55. It has nothing to do with applications made directly by a claimant for enforcement.

It appears that the only other reported authority on the subject since the various changes in the FPR 2010 is Sir Peter Singer’s decision in AB v JJB [2015] EWHC 192 (Fam). That case concerned an application by a debtor directly to the Family Court for modification of a decision made in Germany. The judge concluded that the debtor was obliged to apply through the Central Authority of the other Member State. I have already referred to Sir Peter Singer’s reference to Mostyn J’s earlier case and his observations on the apparent ambiguity. Whilst he expressly refrained from commenting on Mostyn J’s conclusion that paragraph 4 of Schedule 1 contained a mistake in the drafting, as Mr Scott acknowledges, his judgment is “less than a ringing endorsement” of EDG v RR.

During the course of his judgment in AB v JBB, Sir Peter Singer referred to the conjoined appeal in Sanders v Verhaegen; Huber v Huber to which I have already referred earlier in my judgment. The preliminary issue in that case was whether or not a local court in which the judgment creditor was habitually resident under Article 3(b) of the Maintenance Regulation had jurisdiction to deal with the case, or if a Member State could implement rules which could result in the application being transferred to a higher regional court in a separate area. In that case, the Court of Justice of the European Union ruled that Article 3(b) must be interpreted as precluding national legislation which establishes a centralisation of judicial jurisdiction in matters relating to cross-border maintenance obligations in favour of a first instance court which has jurisdiction for the seat of the appeal court. The only exception occurs in circumstances where that rule assists to achieve the objective of a proper administration of justice and protects the interests of maintenance creditors whilst, at the same time, promoting the effective recovery of such claims.

When the applicant’s solicitor approached REMO following the delivery of the judgment in EDG v RR, she received a response, dated 23 April 2014, which was quite specific in its conclusion that “applications under the Maintenance Regulation are still required to be routed via REMO and there are no plans to amend the 2011 Regulations to allow applications to be made directly to the courts’. The justification for this stances was stated to be as follows:

Mr Scott submits that the numbers of applications passing through REMO has been increasing rapidly in recent years. He tells me, anecdotally, that that organisation appears to take the view that its only function in cases which are sent to it by maintenance creditors directly (as distinct from cases channelled through it by other Central Authorities under Chapter VII) is to transmit the cases onwards to the relevant ‘maintenance enforcement business centre’. Once the file has been transmitted, it appears that REMO closes its files and has no further involvement in the case. No legal advice is offered, nor is mediation (in contradistinction to Article 44 which makes specific provision for legal aid unless, in cases covered by Chapter VII, ‘the procedures put in place by the enforcing Member State enable the parties to make the case without the need for legal aid and the Central Authority provides such services free of charge’).

It is no part of my function in this case to explore what may or may not be the motivation behind the reasons why the Ministry of Justice has adopted the route it has. If any part of the CJJMR (i.e. our domestic legislation) is incompatible with the scheme of the Maintenance Regulation, the court has a duty to state as much.

My conclusions

There were essentially two options open to me in this case. I could either have adjourned the matter to enable appropriate representations to be made at a further hearing by or on behalf of the Ministry of Justice as to the determination of the preliminary issue. Alternatively, I could have adopted the course which is urged upon me by counsel for both the applicant and the respondent and refer the matter to the Court of Justice of the European Union. On balance, it seemed to me that, in order to avoid further layers of delay and eliminate the prospect of further hearings in future, the appropriate course was to refer the question, as I was asked to do. In my judgment, the volume of pending cases and the need for certainty in the law make this not only the appropriate course but the preferable course. The potential ramifications are wide-ranging.

Accordingly, exercising my jurisdiction under Article 19(3)(b) of the Treaty on European Union 1992 and Article 267 of the Treaty on the Functioning of the European Union, I am satisfied that the questions drafted by Mr Scott, agreed by Mr Farrell, and approved – as very slightly amended - by me should be referred to the Court of Justice of the European Union. The questions are appended by way of Annex to this judgment. In considering the preliminary issue, and my decision to refer it, I have born in mind, in particular, the following matters:-

It is now over a year since the mother secured her order in this case. At that stage, there were arrears up to the beginning of this year of a sum in excess of €6,000. Those arrears are likely to be significantly greater now. The arrears are directly referable to the financial support of two young children. In my view, there are ample grounds in this case to request the European Court to consider an expedited hearing under its powers and pursuant to the procedure set out in r 105 of the Rules of Procedure of the Court of Justice of the European Union. The emotional toll of these ongoing proceedings will be taking their toll not only on the parties but on the children whose interests will inevitably have been harmed by their parents’ ongoing disputes.