MS v PS

Where a maintenance creditor seeks enforcement in one Member State of an order made in another, the interaction between Chapter IV of the Council Regulation (EC) Maintenance Regulation 4/2009 and domestic procedural rules must be assessed in light of the Regulation’s objectives of rapid, effective and uncomplicated enforcement. Domestic rules must remain consistent with those objectives and must not unlawfully restrict rights conferred by the Regulation. Where the domestic legislation is ambiguous and the issue has wide practical ramifications, a national court may refer the question to the Court of Justice of the European Union under article 267 TFEU. The court referred, without finally determining, whether direct enforcement in the requested state is a right under Chapter IV and whether Member States must provide a procedure enabling that right to be exercised.

The applicant, resident in Germany, sought enforcement in England of a German child-maintenance order against the respondent, who lived and worked in England. The application had been transferred from the Family Court sitting in Lincoln to the High Court. The preliminary issue was whether the application could be issued directly in the Family Court or had to be lodged with the Lord Chancellor for transmission through REMO.

The issue had produced inconsistent approaches in EDG v RR [2014] EWHC 816 (Fam) and AB v JJB [2015] EWHC 192 (Fam). The central question was whether the domestic procedural requirement was compatible with the Maintenance Regulation.

1. The court decided that an authoritative ruling was required and referred two questions to the Court of Justice of the European Union. The questions concerned whether Chapter IV of the Council Regulation (EC) Maintenance Regulation 4/2009 confers a right to apply directly to the competent enforcement authority in the requested Member State, and whether Member States must provide a procedure enabling that right to be exercised.

2. The court considered that the Regulation was directly applicable and binding. Its objectives included rapid recovery of maintenance, effective protection of maintenance creditors, and enforcement without additional formalities. Article 41 required enforcement under the law and conditions of the enforcing Member State, while article 42 prohibited review of the foreign decision’s substance.

3. The domestic legislation appeared to require all applications under section 1 of Chapter IV to be transmitted to the Family Court by the Lord Chancellor. That appeared inconsistent with the alternative direct-enforcement route contemplated by Chapter IV, although the court did not finally resolve the construction or compatibility issue.

4. The court accepted that EDG v RR had identified the apparent drafting ambiguity and had treated paragraph 4 of Schedule 1 to the domestic regulations as containing an error. The court regarded the issue as unresolved despite the less decisive approach in AB v JJB. It also considered the guidance arising from Sanders v Verhaegen; Huber v Huber and the principle concerning the effects of foreign judgments stated in Hoffman v Krieg.

5. The reference was appropriate because there were many pending applications, the issue had wide ramifications, and further delay and inconsistent decisions were undesirable. The court also considered that the arrears relating to the support of young children justified requesting an expedited hearing.

The application was issued in the Family Court on 7 August 2014 and transferred by the Family Court sitting in Lincoln to the High Court on 28 April 2015. The High Court made a preliminary reference to the Court of Justice of the European Union. The judgment does not state a later appellate decision.