1. In this article I shall set out the legal background to enforcing child maintenance payments made in the courts of England and Wales when the receiving parent lives outside the United Kingdom from 01 January 2021. I shall also briefly explain the necessary applications to be made and subsequent steps to be taken. I recently shadowed a member of Chambers on a matter where a mother, who had relocated abroad with her child, born to an English father whilst she was resident in England, wanted to receive child maintenance payments in respect of the child. In the post-Brexit world, there are increasing numbers of European parents returning to their home nation with children born to British parents and applications of this type are likely to be seen more frequently in English Courts. It is therefore appropriate to give this issue some consideration.
The Legal Framework
2. First of all, it is necessary to establish whether the country in which the receiving parent and child are resident has agreed any bilateral or multilateral treaties with the United Kingdom for the enforcement of child maintenance decisions.
3. The United Kingdom is a signatory to the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance. This is intended to be a quick and simple system for the reciprocal enforcement of family maintenance between the signatory states.
4. The United Kingdom was originally a contracting state to the Hague Convention by virtue of its membership of the European Union. To ensure continuity after Brexit the UK deposited its instrument of ratification to the Convention on 28 September 2020, which came into force on 1st January 2021.
5. As such, the Hague Convention is one mechanism by which maintenance orders can be enforced outside the UK, provided that the other country is a contracting state.
6. Previously, as a member of the EU, enforcement of child maintenance payments within the Union was governed by the EU Maintenance Regulation. As a result, the Hague Convention was not relevant to enforcement of orders between EU member states. However, since Brexit, the Maintenance Regulation no longer applies, and it is the Hague Convention which provides the relevant legal framework with EU member states (except Denmark).
7. Not all nations are contracting states to the Hague Convention, but the UK has other reciprocal agreements. Countries with which the UK has any such arrangement, including Hague Convention signatories, are known as REMO (Reciprocal Enforcement of Maintenance Orders) countries.
8. The list of REMO countries should be checked (this can be done easily on the government website) before seeking to enforce any maintenance order. If the country in which the receiving parent and child are resident is not a REMO country then specific legal advice should be taken, as the process is likely to be far more complex and difficult, if indeed it is possible to enforce at all.
Obtaining An Order Which Can Be Enforced
9. The starting point is to recognise that there must be a legally binding order to enforce. It must be stressed that an informal agreement between the parties does not suffice.
10. Any application to enforce must be based on either a pre-existing order of the Child Maintenance Service or an order made under Schedule 1 of the Children Act 1989. By virtue of paragraph 14 of Schedule 1 the court has jurisdiction to make an order if:
“any of the following persons are habitually resident or domiciled in England and Wales on the date of the application —
(a) a parent of the child;
(b) a guardian or special guardian of the child;
(c) a person who is named in a child arrangements order as a person with whom the child is to live;
(d) the child.”
11. If there is no pre-existing order, the parent living abroad with day-to-day care of the child can only make an application for payment under Schedule 1, as the Child Maintenance Service will not consider new applications where the child and receiving parent live abroad.
12. This application will be heard in the Family Court, where the court will decide on the amount to be ordered by way of periodical payments. In deciding the appropriate level of payment to order the court will consider the same factors which would ordinarily be taken into account by the Child Maintenance Calculator. These are
• the income of the paying parent;
• the number of days per annum that the paying parent is to have care of the child(ren);
• the number (if any) of other children for whom the paying parent is financially responsible and to what extent;
• the number of days per annum that the paying parent has care of any other child(ren);
• the paying parent’s travel costs in having contact with the child(ren).
Enforcing a Decision
13. Once the English court has decided the amount to be paid and made the order, the receiving parent will need to take steps within the foreign jurisdiction. For Hague Convention contracting states it is imperative that a a statement of enforceability regarding the decision is completed so that it can be recognised and enforced.
14. For other REMO countries, a copy of the decision of the English court will normally suffice and it is this that should be presented to the relevant authority in the foreign jurisdiction.
A Note of Caution
15. As mentioned above there exist a number of treaties which provide for the enforcement of UK child maintenance decisions or orders under Schedule 1 of the Children Act 1989. These agreements mean only that those decisions can be enforced in the REMO countries. This is not to say that they will be.
16. The UK cannot obligate the courts in the foreign jurisdiction to enforce and therefore if any such application is not successful, appropriate legal advice should be sought in the host country to see if there are any further avenues that can be explored.
17. To summarise, the following steps can be taken as a guide for how to approach enforcement of child maintenance orders made in England and Wales outside the UK.
• Check whether you are resident in a REMO country;
• Make sure you have an enforceable court order or decision of the CMS;
• If you have no such order, make an application for periodic payments under Schedule 1 of the Children Act 1989;
• Take any order or decision to the relevant local authority for enforcement.
18. Please note that the above article is not designed to be a comprehensive analysis, but hopefully a practical and informative starting point when considering enforcing payments for child maintenance when living outside the UK. For any further enquiries in relation to recognition of child maintenance orders overseas, please do not hesitate to contact the clerks.