I am no expert upon family law in other jurisdictions, but my understanding is that it is usual in many other countries for child maintenance orders to be made as a matter of course in divorce proceedings. The divorce court in that country has a duty to ensure that proper arrangements are made for any dependent children, including for their maintenance before it allows the divorce to go through.
Normally, of course, that would be the end of the story regarding the child’s maintenance, subject to any future variations in the amount to be paid. But what if the parents are not residing in that country? What if, for example, the parents moved to this country before the divorce, and only divorced in their ‘home’ country as a matter of convenience? Would the court of the home country continue to have jurisdiction over the issue of child maintenance, or would jurisdiction pass to the child support authority in this country (currently the Child Maintenance Service, or CMS)? That was the (I suspect, not unique) question to be answered in the recent case K v S (appeal against registration of an order of a member state).
The background to the case was, in chronological order, as follows:
- The parties, both Polish nationals, married in Poland in 2000.
- They have one child, who is now in her late teens.
- In 2003 the father moved to the UK.
- The parties separated in 2005, the child remaining with the mother.
- In 2009 the mother and child also moved to the UK.
- It is agreed that by 2010, the parties and child were all habitually resident in the UK.
- The parties agreed to issue divorce proceedings in Poland. By an order dated the 28th of July 2010 the Polish court dissolved the marriage, ordered that the father should pay the sum of £300 each month by way of maintenance for the child, that the mother should be the primary carer for the child, and that the father should have weekly contact with her. It is common ground that it is customary that the courts in Poland routinely deal with matters of child maintenance and custody, as part of the divorce proceedings.
- The father continued to pay the child maintenance pursuant to the order until 2012 when he applied to the Child Support Agency (as it then was) for a child support assessment. The Agency assessed his child support liability as “significantly less than £300 per month” (the report does not tell us how much). The father then stopped paying the amount due under the Polish order, and began paying the amount required under the assessment, having been told by the Agency that the assessment would override the Polish order.
- During 2015 the mother appears to have made an application to the Polish court for enforcement of the Polish order. It appears the Polish court refused the Application, on the basis that it did not have jurisdiction.
- In October 2017 the mother took steps to register the Polish order in the UK so that she could enforce it here. The father appealed against the registration.
The matter eventually went before His Honour Judge Moradifar in the Family Court, last month.
Now, the case turned upon the interpretation of the European Maintenance Regulations, which govern issues relating to jurisdiction, recognition and enforcement of maintenance obligations in Europe. As the Regulations are quite technical, I will not go into them in detail. Suffice to say that Judge Moradifar found that, on any construction of the Regulations, by 2012 when the father applied for an assessment, and by when all of the parties were habitually resident in the UK, jurisdiction in relation to child maintenance was in England, and consequently the CMS.
Further to that, any argument that the act of registration in 2017, by when all of the parties had been habitually resident in England for more than seven years (the report says eleven years, but that cannot be correct, as the mother and child had not then been in this country that long), should give priority to the Polish order or invalidate the child support assessment was unsustainable and contrary to the Regulations.
Accordingly, the father’s appeal was allowed.
You can read the full report here (note that it contains a few typographical errors).