Global view

The Family Procedure (Amendment No 4) Rules 2012, SI 2012/2806, came into force at the end of last year amending the Family Procedure Rules 2010, SI 2010/2955 (FPR 2010). These changes are significant for international family law as they enable the operation in England and Wales of the 2007 Convention on the International Recovery of Child Support and other forms of Family Maintenance (the 2007 Convention) on the acquisition and enforcement of family maintenance.

The 2007 Convention revises provisions in the Hague Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations 1973 and UN Convention on the Recovery Abroad of Maintenance 1956. Note that the 2007 Convention includes provision for applications for child maintenance, for a child is aged under 21, and also spousal support (linked to child maintenance and stand alone) ie it is wider than the previous provisions on enforcement.

At first glance the changes to international maintenance are complex despite the stated goal of simplicity - if you practice in this area, the new provisions are worth a detailed and careful consideration.

Relevant law

The 2007 Convention will be concluded (ratified) by the EU on behalf of all member states on a date after 10 December 2012 and that conclusion will bind all member states (except for Denmark) to apply the Convention. The intention is that the 2007 Convention will provide a simpler, quicker and more efficient global system for the common enforcement of family maintenance. The 2007 Convention will apply in the UK on the first day of the month following three complete months after the ratification date. Note that the 2007 Convention is global and applies to all Contracting States (not just the EU) – the dates of implementation will vary so it is worth checking individual countries as appropriate.

In preparation for the 2007 Convention, the International Recovery of Maintenance (Hague Convention 2007) (Rules of Court) Regulations 2012, SI 2012/1770 came into force on the 31 July 2012. These regulations made amendments to the Magistrates' Courts Act 1980 and the Civil Jurisdiction and Judgments Act 1982 to ensure the powers to make procedural rules are wide enough to support the operation in England and Wales of the 2007 Convention and now those wide changes are now with us in the form of SI 2012/2806.

Effect of the FPR 2010 amendments

An applicant wishing to establish or modify a maintenance decision in England and Wales may apply using the standard forms prepared by the Permanent Bureau of the Hague Conference rather than the usual court forms. The Hague forms do not contain a statement of truth, and neither party is automatically required to verify their financial statements by a statement of truth but the court can use its discretion to require verification during the course of proceedings.

The amendments also address the problem that a foreign applicant applying for establishment or modification of maintenance through the Central Authority will probably not be in a position to request specifically that the court officer issues their application. The request will be deemed to be made in cases where the Lord Chancellor (as Central Authority for England and Wales) forwards an application.

The rules on service of documents to reduce potential risks of familial violence to the respondent resulting from the applicant discovering the respondent's whereabouts as part of the process of service are amended.

Provisions are inserted into the FPR 2010 to ensure that the courts provide any necessary information or documents to the Lord Chancellor (as Central Authority) when requested for purposes of Central Authority functions under the European Maintenance Regulation (Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations) or the 2007 Convention.

Amendments are made to FPR 2010, Pt 34 (on reciprocal enforcement of maintenance orders) to ensure that proceedings for recognition and enforcement under the 2007 Convention are covered.

Procedure

Some key procedural changes are:

  • FPR 2010, 2.3(1) (on the interpretation of the FPR 2010) will be amended to insert: “’the 2007 Hague Convention’ means the Convention on the International Recovery of Child Support and other forms of Family Maintenance done at The Hague on 23 November 2007” and after the definition of “application notice”: “’Article 11 form’ means a form published by the Permanent Bureau of the Hague Conference under Article 11(4) of the 2007 Hague Convention for use in relation to an application under Article 10 of that Convention, and includes a Financial Circumstances Form as defined in rule 9.3(1) which accompanies such an application.”
  • FPR 2010, 5.3 is amended by the insertion of a new para 5.3(3) as follows: “(3) Where the application is made under Article 56 of the Maintenance Regulation, or under Article 10 of the 2007 Hague Convention, the applicant is deemed to have requested the issue of the application by virtue of making the application for establishment or modification of a maintenance decision forwarded on his or her behalf by the Lord Chancellor.”
  • FPR 2010, 9.3(1) is amended by the insertion of “’Financial Circumstances Form’ means the Financial Circumstances Form published by the Permanent Bureau of the Hague Conference under Article 11(4) of the 2007 Hague Convention for use in relation to applications under Article 10 of that Convention.”

Implications

There’s really no getting away from that fact that international maintenance is an increasingly complex area. However, the aim of increased global uniformity is to be commended. All Contracting States must establish a Central Authority to administer the 2007 Convention – in the UK that role is served by the Lord Chancellor’s office.

With the recent cuts to family legal aid, and government plans to charge for child support assessments on the horizon, there is some irony in the obligation imposed by article 15 for the provision of free legal advice (subject to a merits test) in 2007 Convention cases.

Geraldine Morris is a solicitor and head of LexisPSL Family

Twitter: @GeraldineMorris

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