Enforcement of Child Maintenance Orders made outside of England

Child maintenance disputes can be complex, particularly where a Court outside of England has made an order for a non-resident parent to pay child maintenance.  If the non-resident parent lives in England and does not comply with the child maintenance order made abroad, the resident parent may wish to take steps to pursue the non-resident parent for a breach of the child maintenance order.

The parent wishing to enforce the order will need to consider REMO.  REMO is the Reciprocal Enforcement of Maintenance Orders provision.  A significant number of countries across the world have endorsed REMO into their law which means that a county who has endorsed REMO can enforce another country’s maintenance order.  This applies to England which is party to REMO and numerous other treaties which enables the Courts in England to enforce child maintenance orders made in other countries (although not all).

However, it is not guaranteed that the Court will be able to enforce another country’s maintenance order and there are several tests and facts that the Court will apply before they accept enforcement of the order.  The most important question for the Court is where was the original order made, and do they have jurisdiction to enforce orders from that country?  The Court will, amongst other factors, want to know the circumstances under which the order was made and where the child is living at the time of the enforcement application.

Any party making an application to enforce a child maintenance order made outside of England also faces the possibility of an appeal against the enforcement of an order as the non-resident parent may wish to challenge the Court’s ability to enforce a child maintenance order.

Last year, I represented the Father in the reported case of K -v- S (appeal against the registration of an order of a member state) [2019] EWFC B43.

This case concerned the Father’s appeal against the registration of a Polish Court order regarding child maintenance payments.  The facts of the case were:

• The parties, both of whom were Polish nationals, were married in Poland in 2000.
• The parties had one child who was in their late teens at the time the Mother applied to enforce the order
• The parties separated whilst the Father was living in the UK.  The child remained living in Poland with the Mother
• By 2010, all parties were residing in England.  The parties agreed to issue divorce proceedings in Poland and a final order was made in July 2010.  The Father was ordered to pay £300 per month by way of child maintenance
• The Father paid the child maintenance in line with the Polish Order until 2012 when he applied to the Child Support Agency, in England, as it then was.  The maintenance was assessed at significantly less than that ordered by the Polish Court.  The Father commenced payments under the CSA assessment, having been told by the CSA that they had jurisdiction over the Polish order.
• In 2015, the Mother applied to the Polish Court to enforce the child maintenance element of the order.  The Polish Court refused on the grounds that they no longer had jurisdiction
• In 2017, the Mother applied to register the Polish Order in the UK to enforce.  The Father appealed.

His Honour Judge Moradifar was required to interpret the European Maintenance Regulations which govern enforcement of maintenance in Europe.  The Judge concluded that:

a. By 2012, when the Father applied for an assessment of the child maintenance, all parties were habitually resident in England.  Jurisdiction for child maintenance fell to the CSA as a result.

b. The argument that the Mother’s act of registration in 2017 should give priority to the Polish order or invalidate the CSA assessment was unjust.

The Father’s appeal was therefore successful, and the Mother was not entitled to register, or subsequently enforce, the Polish order against the Father.

This case is therefore very important when considering the issue of enforcing maintenance orders made outside of England and Wales and highlights how the Court will deal with the issue of jurisdiction.

In summary, due to the complexities of these types of disputes, any party involved with these matters is strongly encouraged to seek legal advice from a specialist, at the earliest opportunity.