Maintenance Enforcement – Advance to Go
We all know that, “You can’t cross the sea merely by standing and staring at the water”. But what if you want to make a direct move, as it is possible in Monopoly, and the water is not muddy at all, as some let you believe.
The European Court did not play Monopoly but had to decide after a request for a preliminary ruling under Article 267 TFEU from the High Court of Justice (England and Wales), Family Division, made by decision of 11 April 2016, if it is possible to make a direct application to the competent authority (Family Court) in England & Wales.
It does not come as a surprise that the Sixth Chambers of the European Court now found on the 9th February 2017 in M. S. v P. S. (Case C‑283/16) that a Maintenance Creditor, who has an order from one Member State and wishes to enforce it can apply directly to the competent authority.
With this finding the Court supports High Court Judge Mostyn’s view expressed in EDG v RR  EWHC 816 (Fam) (13 March 2014) that Chapter VII (and Articles 56 and 57) provides an alternative route to enforcement. At the same time it also disagrees with the findings in AB v JJB (EU Maintenance Regulation: modification application procedure)  EWHC 192 (Fam) Singer J who concluded that the debtor was obliged to apply through the Central Authority of the other Member State and can’t apply directly.
In EDG v RR Mostyn J rightly states that:
‘4. …the mother wishes to enforce the order here. In particular, the mother wishes to invoke the enforcement machinery in the Principal Registry of the Family Division, principally so that she can take advantage of the new machinery in Rule 33.3 of the Family Procedure Rules 2010, which permits an application for enforcement to be made for an order for such method of enforcement as the court may consider appropriate.
5. Speaking anecdotally, that Rule has been very successful, in that the old black letter law problems that applicants for enforcement would run in the past (namely that on the hearing of their application they would discover that they had applied for the wrong form of enforcement) no longer applies. At any rate, in my experience and to the best of my knowledge, the method of enforcement is successful at an early stage, in that the defaulter is brought face to face with the court sooner rather than later and the court makes very clear to him that, unless there is compliance, then possibly a number of the full range of enforcement measures will be implemented against him.
6. That is the first reason why the mother wishes to apply directly for enforcement in the Principal Registry of the Family Division. The second reason is that she wishes enforcement to result in direct payment to maintenance to her, rather than it being done through the machinery which has been in place in the Magistrates’ Curt for well over a century, where the payments are collected by the Clerk to the Justices and then transmitted, in the case of a domestic order, to the applicant, or in the case of a registered foreign order, to the central authority of the foreign country for onwards transmission to the applicant. I only have to describe that procedure for its lack of attraction to any applicant to be apparent.’
Pointing out at  the purpose of the Regulation No 4/2009 and that Maintenance claims have a “urgent nature” the Sixth Chamber rules:
- Chapter IV of 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, in particular Article 41(1) thereof, must be interpreted as meaning that a maintenance creditor who has obtained an order in one Member State and wishes to enforce it in another Member State may make an application directly to the competent authority of the latter Member State, such as a specialised court, and cannot be required to submit the application to that court through the Central Authority of the Member State of enforcement.
- Member States are required to give full effect to the right laid down in Article 41(1) of Regulation No 4/2009 by amending, where appropriate, their rules of procedure. In any event, it is for the national court to apply Article 41(1), if necessary refusing to apply any conflicting provision of national law and, as a consequence, to allow a maintenance creditor to submit her application directly to the competent authority of the Member State of enforcement, even if national law does not make provision for such an application.
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