The International Recovery of Maintenance (Hague Convention 2007 etc.) Regulations 2012

Regulation 9

SCHEDULE 5AMENDMENTS RELATING TO THE MAINTENANCE REGULATION

Maintenance Orders (Facilities for Enforcement) Act 1920 (c.33)

1.—(1) The Maintenance Orders (Facilities for Enforcement) Act 1920 is amended as follows.

(2) In section 3(1)(power to make provisional orders of maintenance against persons resident in Her Majesty’s dominions)—

(a)in subsection (1), after “if that person had been” insert “habitually”;

(b)in subsection (3), after “if the person against whom the order is made had been” insert “habitually”;

(c)in subsection (6), after “the order is sought to be made been” insert “habitually”.

(3) In section 4A(2) (variation and revocation of maintenance orders)—

(a)in subsection (2), for the second “residing” substitute “habitually resident”;

(b)in subsection (3), for the second “residing” substitute “habitually resident”.

Maintenance Orders (Reciprocal Enforcement) Act 1972 (c.18)

2.—(1) The Maintenance Orders (Reciprocal Enforcement) Act 1972 is amended as follows.

(2) In section 3(3)(power of magistrates’ court to make provisional maintenance order against person residing in reciprocating country)—

(a)in subsection (1)(a), for “residing” substitute “habitually resident”;

(b)in subsection (7)(a), in subsection (1)(a) as substituted by that provision, for “residing” substitute “habitually resident”.

(3) In section 17(4) (proceedings in magistrates’ courts)—

(a)in subsection (5A), for the second “residing” substitute “habitually resident”;

(b)in subsection (6), for the second “residing” substitute “habitually resident”.

(4) In section 27A(5), in subsection (2), after “Lord Chancellor.” insert —

“This subsection does not confer jurisdiction on a court in England and Wales that it would not otherwise have.”.

(5) In section 28C(6), in subsection (2), after “Lord Chancellor.” insert—

“This subsection does not confer jurisdiction on a court in Northern Ireland that it would not otherwise have.”.

(6) In section 35(7)(further provisions with respect to variation etc of orders by magistrates’ courts in England and Wales)—

(a)for subsection (1) substitute—

“(1) Subsection (1A) applies in relation to an application for the variation or revocation of a registered order registered in a magistrates’ court in England and Wales (“the registering court”) made—

(a)by the person against whom or on whose application the registered order was made, and

(b)in circumstances where the person by or against whom the application is made is residing outside England and Wales.

(1A) The registering court has jurisdiction to hear the application even though—

(a)a party to the application is residing outside England and Wales, and

(b)the requirement in section 30(1) of the Domestic Proceedings and Magistrates’ Courts Act 1978(8) as applied by section 28(2) or 28A(6) of this Act(9), is not satisfied.

(1B) But if the application or part of it relates to a matter where jurisdiction falls to be determined by reference to the jurisdictional requirements of the Maintenance Regulation(10) and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011(11), the registering court may not entertain the application or that part of it unless it has jurisdiction to do so by virtue of that Regulation and that Schedule.”;

(b)after subsection (3) insert—

“(4) In subsection (1B) “the Maintenance Regulation” means Council Regulation (EC) No 4/2009 including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark.”.

(7) In section 35A(12)(further provisions with respect to variation etc of orders by magistrates’ courts in Northern Ireland)—

(a)for subsection (1) substitute—

“(1) Subsection (1A) applies in relation to an application for the variation or revocation of a registered order registered in a magistrates’ court in Northern Ireland (“the registering court”) made—

(a)by the person against whom or on whose application the registered order was made, and

(b)in circumstances where the person by or against whom the application is made is residing outside Northern Ireland.

(1A) The registering court has jurisdiction to hear the application even though—

(a)a party to the application is residing outside England and Wales, and

(b)the requirement in Article 32 of the Domestic Proceedings (Northern Ireland) Order 1980(13), as applied by section 29(2) or 29A(6) of this Act(14), is not satisfied.

(1B) But if the application or part of it relates to a matter where jurisdiction falls to be determined by reference to the jurisdictional requirements of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, the registering court may not entertain the application or that part of it unless it has jurisdiction to do so by virtue of that Regulation and that Schedule.”;

(b)after subsection (3) insert—

“(4) In subsection (1B) “the Maintenance Regulation” means Council Regulation (EC) 4/2009 including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark.”.

Children Act 1989 (c.41)

3.  In Schedule 1 to the Children Act 1989, for the italic heading before paragraph 14(15), substitute—

“Jurisdiction in relation to matters relating to maintenance”

Recovery Abroad of Maintenance (Convention Countries) Order 1975

4.—(1) In the Schedule to the Recovery Abroad of Maintenance (Convention Countries) Order 1975(16), references to the following countries are revoked—

(a)Austria;

(b)Belgium;

(c)Cyprus;

(d)Czech Republic;

(e)Denmark;

(f)Finland;

(g)France, including the overseas departments of Guadeloupe, Guiana, Martinique and Reunion;

(h)Germany;

(i)Greece;

(j)Hungary;

(k)Ireland;

(l)Italy;

(m)Luxembourg;

(n)Netherlands (Kingdom in Europe);

(o)Poland;

(p)Portugal;

(q)Romania;

(r)Slovakia;

(s)Slovenia;

(t)Spain;

(u)Sweden.

(2) Despite sub-paragraph (1), the countries listed in that sub-paragraph are to continue to be treated as Convention Countries for the purposes of Part 2 of the Act in relation to—

(a)proceedings on an application to which section 27A, 28C(17) or 31(1) of the Act apply and which were continuing on 18 June 2011;

(b)proceedings on an application for variation or revocation of an order registered under Part 2 of the Act which were continuing on 18 June 2011;

(c)enforcement of an order registered under Part 2 of the Act before 18 June 2011 or upon the making of an order in proceedings within paragraph (a).

(3) In sub-paragraph (2), “the Act” means the Maintenance Orders (Reciprocal Enforcement) Act 1972(18).

Reciprocal Enforcement of Maintenance Orders (Designation of Reciprocating Countries) Order 1975

5.—(1) In the Schedule to the Reciprocal Enforcement of Maintenance Orders (Designation of Reciprocating Countries) Order 1975(19), the reference to Malta in column (1) and the corresponding entry in column (2) are revoked.

(2) Despite sub-paragraph (1), Malta is to continue to be treated as a reciprocating country for the purposes of Part 1 of the Act in connection with—

(a)proceedings on an application under section 3 or 4 of the Act for a provisional order which were continuing on 18 June 2011;

(b)the application of section 3(6) of the Act to an order confirmed by a competent court in Malta, where such confirmation occurred before 18 June 2011 or where the confirmation relates to an order made in proceedings within paragraph (a);

(c)proceedings on an application for variation or revocation of a maintenance order to which section 5 of the Act applies which were continuing on 18 June 2011;

(d)proceedings under section 7 of the Act for confirmation of a provisional order made by a court in Malta where the provisional order was made before 18 June 2011;

(e)enforcement in accordance with section 8 of the Act of a maintenance order made by a court in Malta where that order was registered—

(i)under section 6 or 7 of the Act before 18 June 2011;

(ii)in proceedings within paragraphs (d), (f) or (g);

(f)proceedings on an application under section 9 of the Act for revocation or variation of a maintenance order registered in a United Kingdom court where those proceedings were continuing on 18 June 2011;

(g)proceedings under section 9(6) of the Act for the confirmation of a provisional order made by a court in Malta varying a registered order, where the provisional order was made before 18 June 2011;

(h)the effect of revocation of a registered order (see section 9(9) of the Act);

(i)cancellation or transfer of the registration of an order in accordance with section 10 of the Act.

(3) In sub-paragraph (2), “the Act” means the Maintenance Orders (Reciprocal Enforcement) Act 1972(20).

Reciprocal Enforcement of Maintenance Orders (United States of America) Order 1995

6.—(1) The Reciprocal Enforcement of Maintenance Orders (United States of America) Order 1995(21) is amended as follows.

(2) In Schedule 2, in paragraph 16(3), in section 17(6) of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (as substituted by paragraph 16(3)), for the second “residing” substitute “habitually resident”.

(3) In Schedule 3, section 17 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (as it has effect as set out in that Schedule) is amended as follows—

(a)in subsection (5A), for the second “residing” substitute “habitually resident”;

(b)in subsection (6), for the second “residing” substitute “habitually resident”.

Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007

7.—(1) The Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007(22) is amended as follows.

(2) In Schedule 1, in paragraph 15(2)—

(a)in section 17(5A) of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (as substituted by paragraph 15(2)), for the second “residing”, substitute “habitually resident”;

(b)in section 17(6) of that Act (as substituted by paragraph (15(2)), for the second “residing”, substitute “habitually resident”.

(3) In Schedule 2, section 17 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (as it has effect as set out in that Schedule) is amended as follows—

(a)in subsection (5A), for the second “residing”, substitute “habitually resident”;

(b)in subsection (6), for the second “residing”, substitute “habitually resident”.

Civil Jurisdiction and Judgments (Maintenance) Regulations 2011

8.—(1) The Civil Jurisdiction and Judgments (Maintenance) Regulations 2011(23) are amended as follows.

(2) In Schedule 1—

(a)in paragraph 4(3)—

(i)the “or” in sub-paragraph (b) is revoked;

(ii)sub-paragraph (c) is revoked;

(b)after paragraph 10 insert—

“PART 5ESTABLISHMENT AND MODIFICATION OF MAINTENANCE UNDER THE MAINTENANCE REGULATION

11.—(1) This paragraph applies to an application submitted under Article 56 for establishment or modification of a decision to the Lord Chancellor, in relation to England and Wales, or to the Department of Justice in relation to Northern Ireland.

(2) Upon receipt of an application submitted under Article 56 for establishment or modification of a decision in England and Wales, the Lord Chancellor shall send that application to the designated officer for the magistrates’ court in the local justice area in which the respondent is residing.

(3) Upon receipt of the application under sub-paragraph (2), the designated officer of that court shall decide—

(a)whether the courts of England and Wales have jurisdiction to determine the application by virtue of the Maintenance Regulation and Schedule 6 to these Regulations; and

(b)if so, whether the magistrates’ court has power to make the decision or modification sought under—

(i)the Domestic Proceedings and Magistrates’ Courts Act 1978, or

(ii)section 15 of and Schedule 1 to the Children Act 1989.

(4) Where the designated officer decides under sub-paragraph (3)(a) that the courts of England and Wales do not have jurisdiction to determine the application, the designated officer shall return the application to the Lord Chancellor with a written explanation of the reasons for that decision.

(5) Where the designated officer decides under sub-paragraph (3)(b) that the magistrates’ court does not have power to make the decision or modification sought, the designated officer shall send the application to—

(a)the High Court, or

(b)a county court

as appears to the designated officer to be appropriate.

(6) Subject to sub-paragraph (7), if the designated officer decides under sub-paragraph (3)(b) that the magistrates’ court has power to make the decision or modification sought, the designated officer shall issue the application and serve it on the respondent.

(7) If the respondent does not reside in the local justice area for which the magistrates’ court acts, the designated officer shall—

(a)if satisfied that the respondent is residing within another local justice area, send the application to the designated officer of a magistrates’ court acting in that other area and inform the Lord Chancellor that it has been so sent; or

(b)if unable to establish where the respondent is residing, return the application to the Lord Chancellor.

(8) A designated officer who receives an application by virtue of sub-paragraph (7)(a) shall proceed under sub-paragraph (6) as if that designated officer had decided that the magistrates’ court has power to make the decision or modification sought.

(9) Where the designated officer has determined in accordance with sub-paragraph (3)(b) that the magistrates’ court has power to make the decision or modification sought, the application shall be treated for the purpose of establishment or modification of a decision under the Maintenance Regulation as an application under the Domestic Proceedings and Magistrates’ Courts Act 1978, or under section 15 of and Schedule 1 to the Children Act 1989, as appropriate.

(10) Sub-paragraphs (2) to (9) apply to an application submitted under Article 56 for establishment or modification of a decision in Northern Ireland to the Department of Justice in relation to Northern Ireland as if—

(a)references to England and Wales were references to Northern Ireland;

(b)references to the Lord Chancellor were references to the Department of Justice;

(c)for “designated officer” were substituted “clerk of petty sessions”;

(d)for “local justice area” were substituted “petty sessions district”;

(e)references to the courts of England and Wales were references to the courts of Northern Ireland;

(f)references to the Domestic Proceedings and Magistrates’ Courts Act 1978, and to section 15 of and Schedule 1 to the Children Act 1989 were references to the Domestic Proceedings (Northern Ireland) Order 1980 and Article 15 of and Schedule 1 to the Children (Northern Ireland) Order 1995 respectively.

(11) In this paragraph—

“respondent” means the person who is alleged in an application for establishment of a decision under Article 56 to owe maintenance, or where the application is for modification of a decision, the person against whom the modification is sought;

and a reference to an application is a reference to an application together with any documents which accompany it.”.

(3) In Schedule 2—

(a)in paragraph 1—

(i)sub-paragraph (1)(b) is revoked;

(ii)in sub-paragraph (1)(c), for “the Commissioners for Her Majesty’s Revenue and Customs” substitute “Revenue and Customs officers”;

(iii)in sub-paragraph (2), after “social security” insert “, child support”;

(iv)after sub-paragraph (2), insert—

“(3) In sub-paragraph (2), “functions relating to social security” includes functions relating to statutory payments as defined in section 4C(11) of the Social Security Contributions and Benefits Act 1992 and maternity allowance under section 35 of that Act.

(4) In this Schedule, references to the Secretary of State include a person providing services to the Secretary of State in connection with the functions mentioned in sub-paragraph (2).”;

(b)in paragraph 3(1), the words “, or by a person supplying services to a Central Authority,” are revoked;

(c)in paragraph 4—

(i)in sub-paragraph (1), for “he or she” substitute “that person”;

(ii)in sub-paragraph (2), for “he or she” substitute “the person”;

(d)after paragraph 5 insert—

“6.  In this Schedule, references to a Central Authority include persons employed by or supplying services to that Central Authority.”.

(4) In paragraph 16(a)(i) of Schedule 6, for “the Child Maintenance and Enforcement Commission” substitute “the Secretary of State”.