Michelmores Family Team win an important Court of Appeal case on international child maintenance
Michelmores Family Team win an important Court of Appeal case on international child maintenance. This outlines the importance of understanding different legislation affecting EU countries.
Michelmores Family team win in the Court of Appeal against an application brought by an ex-wife against our client in respect of enforcement of alleged international child maintenance arrears. The judgment can be found here.
The case concerns a French Order for maintenance made in November 2010. The ex-wife's solicitors had to register the French Order in England before enforcement proceedings could commence. Unfortunately for the ex-wife, the application was mistakenly made to register a parental responsibility order in the High Court as opposed to an application to register a monetary judgment in the Family Court.
When this error came to light, instead of a fresh application being made by the ex-wife's solicitors, an application was made to rectify the registration of the order for parental responsibility, and to effectively attempt to substitute it for an order registering the maintenance judgment.
However, the Court of Appeal confirmed that the Court does not have the power to change the original application and the perfectly valid order which was subsequently granted. Not only was the wrong application form submitted, which was then issued in the wrong Court, but most importantly, it was made under the wrong legislation. The Court of Appeal confirmed that the Court cannot be expected to spot errors in solicitor applications, nor should the Court be expected to question whether what is sought in an application is truly what the applicant is seeking to achieve.
Significantly, the Court of Appeal confirmed that in order to register an EU judgment (where automatic recognition does not apply), the payer should be resident in England and/or Wales or have assets in these jurisdictions. Unless this can be established, the foreign judgment cannot be registered and the English Courts cannot be used to obtain disclosure from the debtor. This rule applies to EU maintenance orders made prior to 18 June 2011 and will continue to apply to decisions arising from EU proceedings which were issued after 1 January 2021.
English law is renowned for its rigorous financial disclosure procedures, and former spouses often try to exploit this to obtain financial information about their ex-spouses. Therefore, following Brexit, it will be harder for maintenance creditors to benefit from the English Court where the debtors have no connection to England and/or Wales: this will prevent forum shopping/creditors going on fishing expeditions and bringing unmeritorious applications.
This case was the archetypal example of forum shopping: an earlier application had already been made, on the ex-wife's behalf, in England, for financial provision for the children (the French Court had already made child maintenance orders in November 2010), which was unsuccessful.
The law in relation to enforcement of international maintenance is complex and different legislation applies depending on the country in which an order is made, and when proceedings in the foreign jurisdiction were issued.
This case highlights the importance of seeking advice from solicitors who specialise in international law. If appropriate legal advice is not sought from the outset, there is a possibility that a lot of time and money can be wasted in trying to enforce maintenance arrears unsuccessfully. In addition, as in this case, if a groundless or a wrong application is pursued, a cost[s] order may be made against you. In this case, the ex-wife not only wasted thousands of pounds in her own costs but also has been ordered to pay her ex-husband's costs for 2 failed applications and has recovered none of the alleged arrears.