AB v JJB (EU Maintenance Regulation: modification application procedure)

An incoming application to modify a maintenance decision under the Maintenance Regulation must be made through the Central Authorities under Chapter VII. A debtor cannot bypass that route by issuing a direct application in the requested Member State. The Annex VII procedure applies to modification applications, including applications concerning a decision made in another State. Domestic law also requires the application to be submitted to the Lord Chancellor, acting through the Central Authority and REMO Unit, before it is sent to the appropriate Family Court. A directly issued Form A therefore cannot validly seise an English court with jurisdiction to determine the modification application.

The applicant sought to vary a German maintenance decision by issuing Form A in the Slough County Court. The respondent applied to strike out the Form A, arguing that the court had not been properly seised and that the application had to proceed through the Central Authorities under the Maintenance Regulation.

The German decision concerned maintenance payable from the applicant’s pensions. The applicant had initially approached the English REMO Unit, but instead of using the Central Authority route he issued Form A directly in England. The central issue was whether that direct procedure was authorised by the Regulation and, alternatively, whether it complied with domestic procedural requirements.

1. The application was struck out. The Form A was ineffective to seise the Slough County Court, and that court had no power to make the orders purportedly made in the proceedings.

2. Articles 55 and 56 of the Maintenance Regulation, read with article 57 and Annex VII, establish the route for applications made under Chapter VII. A debtor’s application to modify a decision made in a State other than the requested State falls within article 56(2)(c). The application must be made through the Central Authority of the requesting Member State to the Central Authority of the requested Member State.

3. Chapter IV is concerned principally with recognition, enforceability and enforcement of existing decisions. Its limited references to modification concern the effect of a modification already made, rather than the procedure for obtaining one. Modification applications are instead dealt with under Chapter VII. The cumulative structure of the Regulation therefore provides no permissible direct-application short cut.

4. Article 3 nevertheless gave an English court jurisdiction in principle because the respondent and maintenance creditor was habitually resident in England. Jurisdiction in principle did not cure the failure to use the prescribed procedure.

5. Domestic law reinforced the same conclusion. Section 2(2) of the European Communities Act 1972 permitted subordinate legislation to provide the necessary procedural interface with the directly applicable Regulation. Part 5 of Schedule 1 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 requires an article 56 application for establishment or modification to be submitted to the Lord Chancellor, acting through the Central Authority. The application must then be sent to the appropriate court officer, who determines jurisdiction and whether the Family Court has power to make the requested decision before issuing and serving the application.

6. The court declined to determine alternative arguments concerning abuse of process, FPR rule 4.4, articles 4 and 12 of the Regulation, and the alleged non-variability of the German order. Those issues could be considered if a competent modification application were later made.

First-instance decision. No prior appellate decision is stated in the judgment.