International enforcement of incoming & outgoing orders (before / after 18th June 2011)
The Court of Appeal recently confirmed in Des Pallieres v Des Pallieres [2021] EWCA Civ 955 that the enforcement of financial provisions of a French order through the English courts as a “pre-commencement order” has to be made:
- in the English Family Court;
- under Council Regulation (EC) No 4/2009 (“the Maintenance Regulation”) in conjunction with Family Procedure Rules 2010 Part 34.3; and
- accompanied by any evidence to support the conditions in FPR PD 34E
- 4.3 (a) and (b): That the “…payer (a) does not reside within the area covered by the Maintenance Enforcement Business Centre to which the application has been sent; and (b) does not have assets in that area against which the maintenance order could be enforced, …”)[1]
In this case the parties reached on 16.11.2010 a consent order which was made in the Tribunal de Grande Instance de Paris
Legal Context for the Enforcement of a foreign Maintenance Order
Direct enforcement of foreign orders since 18th June 2011
The enforcement of maintenance orders made outside England and Wales has never been straightforward. The Maintenance Regulation, which by Civil Jurisdiction and Judgments (Maintenance) Regs 2011 reg 1 (1) (‘The 2011 Regulations’) came into force on 18 June 2011 was designed to simplify the previous complicated procedure by allowing direct enforcement of foreign orders in this jurisdiction which, by virtue of Article 41, treats the foreign order as if it is a domestic order. The policy objective was reflected in Recital 27 to the Maintenance Regulation which says:
“It would be appropriate to limit as far as possible the formal enforcement requirements likely to increase the costs to be borne by the maintenance creditor.”
“Pre-commencement orders”
Transitional provisions were necessary and Article 75.2 applies sections 2 and 3 of Chapter IV to decisions such as above Court of Appeal case, which were given in Member States before the date of application of the Maintenance Regulation (‘pre-commencement orders‘), namely 18th June 2011.
‘Recognition, Enforceability and Enforcement of Decisions’ (Chapter IV)
The Chapter IV bears the title ‘Recognition, Enforceability and Enforcement of Decisions’. Section 1 applies to ‘Decisions given in a Member State bound by the 2007 Hague Protocol’. Section 2 applies to those Member States not so bound and Section 3 contains various common provisions. In the above Court of Appeal case, France is bound by the Hague Protocol and would ordinarily come under section 1 of Chapter IV, however the transitional provisions exclude that section from pre-commencement orders. The Court of Appeal found that it follows that as the order with which the judge was concerned in Des Palliers was made on 16 November 2010, and the relevant provisions are found in sections 2 and 3 of Chapter IV.
Two stage process prior to 18th June 2011 for a “pre commencement order”
There are necessarily two stages to the process: (a) recognition and (b) enforceability.
Stage 1: Recognition (see section 2 Article 23.1)
The Recognition is dealt with in Section 2 at Article 23.1 and Article 23.1 provides for orders made by Member States not bound by the 2007 Hague Protocol to be recognised without any special procedure being applied. The Court of appeal found in above case that for these purposes, the order being a pre-commencement order, the decision embodied in the 2010 order with which the judge was concerned is treated as if France was not bound by the 2007 Hague Protocol. The consent order made in France in 2010 is accordingly recognised in this jurisdiction without the need for any special procedure.
Stage 2: Enforceability (see section 2 at Article 26 Maintenance Regulation)
Turning now to the enforceability in Article 26 of the Maintenance Regulation (which is in Section 2) , this section say that the decision is enforceable “when on the application of any interested party it is declared enforceable“. Article 27 provides that the local jurisdiction is determined by the place of “habitual residence of the judgment debtor” or by the “place of enforcement” and Article 28 prescribes certain formalities and Article 30 provides for the decision to be declared enforceable “on completion of the formalities“.
A “pre-commencement order” and Art 26 Maintenance Regulation & FPR 34.30(2) & FPR PD34E
An application for registration of a pre-commencement order under Section 2 of the Maintenance Regulation is by virtue of Part 3 Regulation 6(1)(a) of the 2011 Regulations, made to the Family Court and FPR 34.30(2) states that an application under Article 26 of the Maintenance Regulation will be subject to FPR r.34 and FPR PD34E.
Reciprocal enforcement of a (“pre-commencement”) Maintenance Orders
The FPR PD 34E deals with the reciprocal enforcement of Maintenance Orders and FPR PD 34E paragraph 4 applies “where the family court receives an application“. Critically for the purposes of a reciprocal enforcement of an (pre-commencement ) Maintenance Order as in the above Court of Appeal case is, FPR PD 34E para 4.3 provides:
“If the court officer is satisfied that the payer –
(a) does not reside within the area covered by the Maintenance Enforcement Business Centre to which the application has been sent; and
(b) does not have assets in that area against which the maintenance order could be enforced,
the court officer will refuse the application and return the application to the Lord Chancellor stating the information the court officer has as to the whereabouts of the payer and the nature and location of the payer’s assets.” [Emphasis added]
As a consequence, in enforcement of Maintenance Orders before the 18th June 2011, there has to be a registration of the foreign order for the purposes of enforcement under Section 2 and 3 of the Maintenance Regulation before the second stage (“enforceability” – see above) can start.
Other incoming or outgoing UK orders
In respect of other incoming / outgoing order it is important to consider:
Other incoming orders i.e. from Denmark still require registration under s2 and 3 Maintenance Regulation.
Outgoing UK order to all other States still require a declaration of enforceability (*exequatur) to be obtained in the state of enforcement (see Chapter IV Maintenance Regulation , s2 and 3 and FPR 34.39 and 34.40). If you have an English Order and you want to enforce it in a foreign jurisdiction, we recommend that you to take advice of an experienced local international lawyer in that foreign jurisdiction.
- For the effect of withdrawal of an EEO Certificate see our case in Vogel v Lothschuetz [2014] EWHC 473 (QB); and
- For an application for modification (i.e. variation of maintenance) see our case in AB v JJB (EU Maintenance Regulation: modification application procedure) [2015] EWHC 192 (Fam) and the approach later confirmed by ECJ in S. v P. S. (Case C‑283/16)finding that a Maintenance Creditor, who has an order from one Member State and wishes to enforce it can apply directly to the competent authority.
[1] See also 2nd alternative in Para 4.4 (a) and (b) : That the “payer (a) does not reside within the area covered by the Maintenance Enforcement Business Centre to which the application has been sent; but (b) has assets in that area against which the maintenance order could be enforced” [Emphasis added]
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