N v N (child maintenance)

A foreign judgment may create an issue estoppel where it is final and conclusive on the merits, made by a competent court, concerns the same parties, and determines an identical issue. The doctrine must be applied cautiously and is not subject to a general discretion based on broad notions of justice. However, truly exceptional circumstances may justify refusing its application where reliance on the foreign decision would produce substantial injustice, particularly where the foreign court exceeded its jurisdiction and unintentionally altered the effect of a child maintenance order.

A serious child-maintenance variation application should not be struck out without the procedural safeguards required by the Family Procedure Rules 2010, including adequate notice of an own-initiative strike-out hearing.

The wife appealed against orders made by District Judge Marin on 12 February 2014. The District Judge dismissed her applications to enforce alleged arrears of child maintenance and to vary child maintenance, holding that the issues had been determined in Illinois and that further proceedings were barred by res judicata or constituted an abuse of process.

The Illinois court had interpreted the English order as requiring payment of a fixed sum rather than 20 per cent of the husband’s net income. The English District Judge considered that interpretation wrong but binding. The appeal concerned whether the wife could nevertheless pursue enforcement in England and whether her variation application had been properly struck out.

1. Appeal allowed on enforcement. The English child-maintenance order was a percentage order, stating the then-current payment rate of £160 per child per month. The Illinois interpretation that it was a fixed-sum order unintentionally reduced the substantive effect of the English order and exceeded the Illinois court’s remit.
2. A foreign judgment may create an issue estoppel where the foreign court had competent jurisdiction, the judgment was final and conclusive on the merits, the parties were the same, and the issue was identical. The doctrine must be applied cautiously. It is not subject to an unfettered discretion to disapply res judicata whenever a court considers that result unjust.
3. Nevertheless, the particular circumstances were truly exceptional. The foreign decision concerned the meaning of an English order, altered the provision intended for the children, and prevented enforcement of admitted arrears. The wife had limited resources and had pursued enforcement in the United States because the husband lived there. It was unjust to treat her failure to appeal the Illinois decision as fatal. The enforcement claim could therefore continue in England.
4. The question whether arrears older than twelve months could be enforced under section 32 of the Matrimonial Causes Act 1973, and whether special circumstances existed, was left to the District Judge on remission.
5. Variation application. The District Judge had made factual errors in treating the wife’s withdrawn Illinois variation application as continuing and in treating her as still litigating there. In addition, an own-initiative strike-out hearing under Part 4 required at least five days’ notice under rule 4.3.3 of the Family Procedure Rules 2010. No adequate notice had been given, and striking out a child-maintenance variation application was a serious step. The appeal was therefore allowed on this issue and the variation application was remitted to proceed on its merits.

• High Court (Family Division): Allowed the appeal against dismissal of the enforcement claim and against striking out the child-maintenance variation application. The matters were remitted to the District Judge.
• Barnet County Court: District Judge Marin dismissed the enforcement and variation applications on res judicata, abuse-of-process and Part 4 grounds.