England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 February 2015

Sir Peter Singer :

Introduction

1. The application before me concerns Herr B, Mrs B and a Form A. The first (and it might have been the last) question I have to decide is whether the Form A dated 11 March 2014 and issued on behalf of Herr B in the Slough County Court (before the Family Court was constituted) validly seises that court with competent power to make an application for a financial order: specifically an order varying a periodical payments order. The question arises because on 16 May 2014 solicitors acting for Mrs B applied to the court by way of primary relief for an order striking out the Form A for want of jurisdiction. Their application notice frames it more compendiously and on alternative bases: but at the hearing the foremost issue was recognised to be whether the process adopted by Herr B engages or fails to engage the court. That application was on 23 July 2014 transferred for hearing in the High Court and 8 and 9 December were on 31 July 2014 fixed for that hearing.
2. If this judgment is reported then may I suggest it be under the title AB v JJB (EU Maintenance Regulation: modification application procedure), as from that first question I go on to consider the procedural requirements for initiating an incoming modification application made under the European Council Regulation (EC) No 4/2009: hereinafter the Maintenance Regulation
3. In the light of their matrimonial history it seems more than usually artificial and inappropriate to refer to these parties as what in judgments such as these in conventional style are described as 'the husband' and 'the wife.' Herr B was born in Germany and Mrs B in America. He remained a German national and she has dual English and American nationality. They married first in America in December 1966. During part of their first marriage they lived in England, and their first divorce took place here in 1974. But it did not last, cohabitation resumed after some few months, and they remarried (again in America) in 1979. In 1997 (or according to German court documents dating their separation from 1994: but the discrepancy is of no consequence) their second marriage fell into disarray. In November 2000 they divorced again, this time in Germany. They have since lived apart, Herr B remarried in 2001 or thereabouts, and Mrs B still has as her companion (I choose a neutral word) the same gentleman whom she met (according to her) in 2002. They have two children, both adult. Herr B is now 78 and Mrs B is 70 years old.
4. Mrs B would have had good reason to be surprised and perplexed some weeks after the initiation of this procedure when she received as first wind of it, out of the blue, a letter dated 2 April 2014 from Stowe Family Law, solicitors acting for Herr B, who had never previously been in communication with her which notified her that the court had given standard directions in Form C requiring her to file by 2 June the compendious form of financial statement (Form E) giving full details of her property and income, in advance of a First Appointment fixed for hearing before a judge in Slough on 7 July. She was sent a copy of the Form C but was not then or previously served with the initiating Form A by Herr B's solicitors or, so it would seem, by the court as FPR rule 9.12(1) or (2) require.
5. On 29 April 2014 Penningtons Manches, having come on record to act for Mrs B, sent a considered letter suggesting reasons why Herr B should withdraw his Form A application and explaining that failing that they would themselves apply to dispose of it by striking it out, or to dismiss it for want of jurisdiction, or as an abuse of the court's process. Herr B did not and they did. And so here we are more than seven months, over 150 pages of written evidence (including exhibits and translations), about 40 pages of correspondence and of the order of £110,000 of costs expended from first to last in total on both sides, inclusive of VAT.

The Form A and its prerequisites

6. This gives notice of Herr B's intention to proceed with an application for a financial order, namely an application to vary a periodical payments order. A 'financial order' is defined within the interpretation provisions of rule 2.3 of the Family Procedure Rules 2010 (the FPR). Leaving aside for the moment 'a variation order,' each of the orders there specified is an order to make which specific jurisdiction exists under the Matrimonial Causes Act 1973 (or equivalent forms of relief in the case of applications under the Civil Partnership Act 2004). These include a pension sharing order. A variation order and a pension sharing order for their part are defined in rule 9.3 but again, and specifically, mean such orders made 'in proceedings under the 1973 Act' (or 'in proceedings under the 2004 Act' : I will hereafter for simplicity's sake make no further reference to the 2004 Act or to its broadly corresponding provisions).
7. In the 1973 Act the provision regulating variation applications is section 31. Section 31(1) applies to the orders specified in section 31(2) which include (amongst others) periodical payments and secured periodical payments orders but only (as the opening words of sub-section (1) require) 'where the court has made an order' to which the section applies.
8. On the face of it therefore the variation power in the 1973 Act which Herr B invoked (or sought to invoke) by this Form A seems as a necessary prerequisite to suppose an order made under the 1973 Act. And the power to make orders such as for periodical payments and secure periodical payments and pension-sharing in turn presupposes proceedings conducted in accordance with the same Act in England and Wales for divorce (or nullity) which have reached finality, that is to say in the case of divorce when the decree is made absolute and the marriage is terminated. (An exception to this prerequisite occurs when application is made with leave for financial remedies after foreign decree, under Part III of the Matrimonial and Family Proceedings Act 1984, not relevant for present purposes.)

The provenance of the order which Herr B seeks to vary

9. I do not need to investigate whether any and if so what orders were made at the time of these parties' first divorce in England in 1974. They apparently resumed cohabitation within months. The second marriage would have put an end to the efficacy of any orders for continuing provision and would have started time running again (as it were) against the eventuality that in subsequent divorce proceedings an appropriate court might make such orders within its domestic jurisdiction and powers as might be appropriate if the parties themselves failed to regulate their financial position by agreement.
10. This the German District Court of Leverkusen did on 29 November 2000.

The successive financial orders made in Germany

11. The Leverkusen Court divorced the parties in proceedings instituted by Herr B on the basis that their admitted separation of more than two years' duration and Mrs B's consent to a divorce demonstrated irretrievable breakdown and thus grounds for divorce pursuant to section 1(2)(d) of the Matrimonial Causes Act 1973. Although in this case I have no evidence of German law, it is apparent from the status order made on 29 November 2000 that the German court applied its own domestic rules in treating English law as applicable on the basis that England was the country of last joint residence and the country where Mrs B remained ordinarily resident.
12. When however the Court's consideration turned to financial matters it made orders which it was empowered to make under German domestic law in relation to the maintenance of Mrs B and the significantly large pension entitlements of Herr B which, having retired and reached retirement age, he then enjoyed from two of his former employers. Herr B makes the somewhat surprising suggestion that Germany was chosen as the forum for their second divorce because it was approximately equidistant between what he describes as his 'primary base' in Switzerland at the time, and her address at the former matrimonial home in England. What on the face of it would have made a German court a much more obvious choice would have been its ability to make the orders in relation to Herr B's pensions upon which they were agreed: but that is supposition and is not germane, at least not at this stage of the discussion.
13. The Court in its orders of that day recognised the parties' agreement that German law should apply to the consequences of divorce 'set out below,' namely its financial consequences. No orders of a capital nature were made to reflect increases in asset value (Zugewinn) during the marriage as would normally have been the case in a country which, as I understand it, operates a system based on matrimonial acquest: for the good reason that the parties waived such a claim. Mrs B suggested in her evidence that this was because, according to her husband's representations to her, they had already satisfactorily divided up the assets in their ownership. This recital in the order does however suggest to me that the German court regarded itself as entitled if not indeed obliged to apply a domestic law approach to the financial consequences of this divorce.
14. Next, the order recites an undertaking on the part of Herr B to pay Mrs B half of the two company pensions in question, and his assignment of that proportion of his pensions to her. (There were provisions relating to tax which, although they gave rise to confusion and conflict at a later stage, are not relevant for present purposes.) That was to be the régime for maintenance provision during the lifetime of Herr B. But the ingenious twist in what was agreed (and which would work to his advantage without detriment to her) was that the order then went on to provide that should he predecease her then that 50% provision should become the subject of what (in translation) is described as a 'pension-splitting settlement'. Thus were she to die first the life-time maintenance arrangement would obviously cease, but he thereafter would have the benefit of 100% of his pensions; whereas were he to die first she would become as it were beneficially entitled to continue to receive 50% direct from the pension providers.
15. The Court thus recorded the arrangements agreed by the parties in an 'in Chambers' judgment/order and then, on the same day, made a public order dealing with their divorce.
16. In 2007 Herr B initiated an application to the District Court in Regensburg, Germany. He wished to reduce his ongoing commitment to Mrs B. It would seem that what gave rise to his primary ground for seeking variation was his assertion that the developed relationship between Mrs B and her companion should be reflected in a reduced award. There clearly was a dispute of fact whether and if so to what extent they were cohabiting and whether in the circumstances Mrs B was deriving, or should be expected to derive, financial benefits which should reduce her maintenance dependence: a situation reflecting several shades of Grey v Grey [2009] EWCA Civ 1424, [2010] 2 FLR 795, CA and Grey v Grey (No 3) [2010] EWHC 1055 (Fam), [2010] 2 FLR 1848.
17. But these issues remained unresolved in the German court because the parties reached an accommodation which was recorded in a judgment/order made on 7 April 2008 (the 2008 Decision). Each of them had legal representation. The essence of the agreement reached was that during the husband's lifetime the proportion of the two pensions payable to her by way of maintenance should be reduced from 50% to 33% of the amounts receivable by Herr B at any one time, but then (as before) that a court order should come into effect should he predecease her entitling her to a full half those pensions. If, contrariwise, she was the first to die then he would as a result thereafter be entitled to the whole amount of those pensions. In addition the parties agreed that he would discharge by monthly instalments half the not inconsiderable arrears of €76,000 by then accrued. The document furthermore provided that 'the above provisions may not be varied.'
18. All did not run as smoothly as it might thereafter, but seemed to do so once in September 2012 Mrs B obtained an order in the Cham District Court in Germany providing for direct payments to be made to her lawyers in Germany by the pension providers. By now it would seem the formerly relatively congenial relationship between the parties had come to an end, and they no longer communicated directly with each other.

Events leading up to the issue of the Form A

19. In setting these out I shall simply recite the sequence of events without at this point any more than outline comment on the regulatory background, whether European (because required under the Maintenance Regulation) or domestic (within Schedule 1 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, SI 2011/1484: the CJJ(M)R).
20. On 27 September 2013 Herr B's solicitors wrote to the East Berkshire Magistrates Court in Maidenhead requesting that the 2008 Decision (of which a copy and translation were enclosed) be registered in this country, and that his application for downward variation be transferred to the Principal Registry of the Family Division (the PRFD) as it raised international law issues. This led to a telephone call a week later from a person employed in a Regional Reciprocal Enforcement Unit, saying that such an application was not within the court's direct jurisdiction but would need to be channelled through the Central Authority established in Germany for the purpose of the Maintenance Regulation. That advice, as I shall decide, was sound.
21. Next, on 9 October 2013 the solicitors sent a Maintenance Regulation application and the orders to the Reciprocal Enforcement of Maintenance Orders Unit at the Official Solicitor's Office. The Lord Chancellor is (by virtue of paragraph 2 of Schedule 1 to the CJJ(M)R) the person designated under Article 49 of the Maintenance Regulation as the Central Authority in relation to England and Wales, but delegates his operational responsibilities as the transmitting and receiving agency and Central Authority to the REMO Unit located and staffed within the Office of the Official Solicitor and Public Trustee.
22. The only partially-completed application (Annex VII to the Maintenance Regulation) accompanied a request that the matter be dealt with at the PRFD. It is to be noted that the application showed Herr B's address as Zug in Switzerland; and that the sole change of circumstance relied upon in the application form was that 'he believes that Mrs B is cohabiting with her new partner.' None of the information required as to the means of each party 'relevant for the purpose of … modifying a decision' was vouchsafed.
23. The REMO Unit returned the application because 'the order is not being enforced by REMO Unit and therefore we would not be involved in the variation/modification,' and pointed out that EU Regulations do not apply to Swiss residents. The first contention is somewhat Delphic. It might be taken to mean that such an application must come to the Central Authority in London via the German Central Authority, rather than directly from a litigant. Whether Herr B was then habitually resident in Switzerland (which he disputes) and if so whether (as was submitted to me) he could nevertheless take advantage of the Maintenance Regulation are questions which I perceive that I will not have to decide in order to dispose of this application in its current form.
24. Undeterred the solicitors in mid-November resubmitted to REMO a freshly drawn but in the same respect incomplete Maintenance Regulation application, this time crossing out the Swiss address and showing an address in Germany for Herr B. They emphasised that they were not seeking to enforce the order through REMO, but to register it with a view to seeking variation in the PRFD. The response in December was specific and (as I shall find) spot on: Part A of the application would need to be completed by and to come via the Central Authority for Germany, of which the contact details were provided.
25. The letter however continued thus:

'Your client alternatively may wish to apply for modification of the decision through a court to court basis which of course he is entitled to do. However, I am unable to advise you of the required procedure should your client wished to pursue this method.'

A central question for me is whether indeed any alternative to a Central Authority to Central Authority transmission of an application is available where the relief sought is modification of the decision, in this case by downward variation; as opposed to the alternative procedures which are envisaged by the Maintenance Regulation for the recognition and enforcement of a decision.

26. The essential lack of legal and procedural clarity confounding the situation were not dispelled when in mid February 2014 Mr Arndt, the then partner of Stowes at that point dealing with the matter, had a further discussion with a representative of the REMO Unit. He was given the undoubtedly correct information that if the application was sent to the German Central Authority it would then be forwarded to REMO who would then forward it to the appropriate court where the request for modification would be considered. But the alternative was said to be to make application directly to the UK court, supposedly a course provided for by the Maintenance Regulation: but suffering the disadvantage that 'the UK courts do not yet have a process in place to facilitate direct applications (not via REMO) under the Regulation.'
27. For whatever reasons the route via the German Central Authority and our own, and then onto an English court (the route mapped by Chapter 7 of the Maintenance Regulation) was not followed, but instead the Form A with which I am concerned was on 11 March 2014 launched into what had been clearly advertised as uncharted and indeed choppy waters. Two days later Mostyn J delivered judgment, so far as I can tell the only one of any direct application to this situation, in EDG v RR [2014] EWHC 816 (Fam): of which more below.
28. I interject to observe that one must have significant sympathy for lawyers grappling with the complexities which arose in this case. I do not know and have neither need nor power to enquire why the Chapter 7 option was rejected in favour of something so clearly more problematical. But of course, looking at it from the point of view of Mrs B, if the procedure adopted proves ineffectual then it is hard to contemplate that she should be out-of-pocket in respect of the costs to which she has been put along the way.

The Maintenance Regulation and the modification of decisions

29. The first point I should make is that analysis demonstrates that this directly enforceable Regulation (one therefore which did not require domestic legislation to render it operative when it came into force on 18 June 2011) is far and away primarily concerned with cross-border enforcement between member states of the European Union of maintenance obligations, rather than their modification. So indeed its long title would suggest: Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. Subject to the transitional provisions contained in its article 75, the Maintenance Regulation has superseded the earlier Regulation (EC) No 44/2001 (the Brussels I Regulation) so far as maintenance matters are concerned.
30. The Maintenance Regulation does not make easy reading nor are its application or its procedural requirements for 'incoming' applications (those from another Member State to England and Wales) free of complexity and devoid of lacunae. In what follows I will attempt to avoid generalisation and concentrate on the set of circumstances with which this case is concerned, namely the desire to institute in relation to an order made in Germany a modification procedure in this country where the creditor habitually resides.
31. But a somewhat wider perspective is necessary if one is to fit the regulatory framework to that narrower context. For this purpose I believe that it is instructive to analyse key references to recognition and enforcement within the Regulation, and to modification, to see how disparately they are reflected.
32. First, as to the frequency with which applications reach the REMO Unit: an informal enquiry which I have made of the Unit produced the tally that in the year to 1 November 2014 1,426 applications for recognition and enforcement had been received, but only 11 for modification. (It is possible that there may also in addition have been an unknown number of applications for recognition and enforcement which did not pass through the Central Authority.)
33. The other category of application envisaged by article 56 as available is for 'establishment of a decision in the requested Member State where there is no existing decision, including where necessary the establishment of parentage; or where the recognition and declaration of enforceability of a decision given in a State other than the requested Member State is not possible.' During that same one-year period I was informed that there had been 147 applications for establishment, and a further 696 for specific measures which the Central Authority is enjoined to take (usually to assist in tracing a respondent under article 51(2)(b)).
34. Thus it can be seen that in terms of frequency modification applications are comparatively scarce and indeed made up only about 0.5% of that year's applications reaching the REMO Unit.
35. The emphasis given to enforcement is underscored by the fact that the goal of the Maintenance Regulation and the method whereby the Regulation seeks to achieve it are stated in preambles (9) and (10) as follows:

(9) A maintenance creditor should be able to obtain easily, in a Member State, a decision which will be automatically enforceable in another Member State without further formalities.

(10) In order to achieve this goal, it is advisable to create a Community instrument in matters relating to maintenance obligations bringing together provisions on jurisdiction, conflict of laws, recognition and enforceability, enforcement, legal aid and cooperation between Central Authorities.

36. The word 'enforce' and its cognates make 180 appearances in the Regulation (including the Forms which comprise its Annexes): 'modify' and 'modification' feature only 26 times. Modification is first mentioned in preamble (17). Only the first sentence is relevant for present purposes, and immediately suggests one limiting filter on the generality of the circumstances in which an application to modify an existing maintenance decision can be made:

(17) An additional rule of jurisdiction should provide that, except under specific conditions, proceedings to modify an existing maintenance decision or to have a new decision given can be brought by the debtor only in the State in which the creditor was habitually resident at the time the decision was given and in which he remains habitually resident.

37. Preamble (17) finds expression in article 8(1) which provides, under the cross-heading 'Limit on Proceedings':

Where a decision is given in a Member State or a 2007 Hague Convention Contracting State where the creditor is habitually resident proceedings to modify the decision or to have a new decision given cannot be brought by the debtor in any other Member State as long as the creditor remains habitually resident in the State in which the decision was given.

As the editors of Family Court Practice (Jordans, 2014 edn. at 3147) comment 'article 8 provides a restrictive jurisdiction for applications to vary, reflecting the philosophy of protection of the creditor.' That is not to suggest, however, that it is only in those circumstances that modification applications fall within the purview of the Maintenance Regulation's operation.

38. Article 3 determines which court has jurisdiction for the purposes of the Maintenance Regulation:

In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:

(a) the court for the place where the defendant is habitually resident, or

(b) the court for the place where the creditor is habitually resident, or

(c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or

(d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.

39. An application to modify Herr B's maintenance obligation under the Maintenance Regulation can thus be entertained by an English court as England is where Mrs B is habitually resident, and as it happens where she qualifies both on the basis that she is the 'creditor' as well (for the purposes of this application) as the 'defendant.'

Is direct application to a domestic court for a Maintenance Regulation modification permissible?

40. Herr B sought by the Form A issued on his behalf to empower the English court to deal with his modification application by direct approach to the court, and without invoking the assistance or intervention of the Central Authority either in Germany or in London. I have reached the conclusion that in the case of a modification application such a direct approach is neither envisaged nor authorised by the Maintenance Regulation. Furthermore, and in any event if I am wrong about that, such a direct approach does not comply with the procedural requirements for a modification application which are imposed as a matter of English domestic law.
41. Chapter IV of the Maintenance Regulation is entitled 'Recognition, Enforceability and Enforcement of Decisions' and is divided into three Sections. Section 1 and Section 2 deal respectively with the recognition etc. of decisions given in a Member State bound by the 2007 Hague Protocol, and of those given in a Member State not so bound. Section 3 contains provisions of general application in each situation. Germany is a 2007 Hague Protocol State, so Sections 1 and 3 would apply. But all the provisions of Chapter IV relate specifically to the procedure to be adopted in relation to 'recognition, enforceability and enforcement of decisions.' The word 'modifying' (alone of its cognates) occurs but twice in the entirety of this Chapter, on each occasion as to the effect which a modification already made to an earlier decision has on the availability of recognition: see articles 21(2) and 24.
42. The thrust of the Chapter is all about steps the payee must take to achieve enforcement of an existing decision, and not at all about the process whereby decisions may at the behest of either party be varied by the appropriate court in an appropriate country.
43. Contrast Chapter VII, headed Cooperation between Central Authorities. Their general responsibility mutually to cooperate, to exchange information and to seek solutions to difficulties which arise in the application of the Maintenance Regulation is imposed by article 50. Article 51(2) requires them to take all appropriate measures to perform what might be described as a wide range of supportive functions in relation to applications under article 56. Article 51(1) is however for present purposes the key one of these provisions:

Central Authorities shall provide assistance in relation to applications under Article 56 and shall in particular:

(a) transmit and receive such applications;

(b) initiate or facilitate the institution of proceedings in respect of such applications.

44. Articles 55 and 56 set out the applications which can be made under Chapter VII and how they are to be made via the Central Authorities of the Requesting and the Requested States. They read insofar as material:

Article 55

Application through Central Authorities

An application under this Chapter shall be made through the Central Authority of the Member State in which the applicant resides to the Central Authority of the requested Member State.

Article 56

Available applications

1. A creditor seeking to recover maintenance under this Regulation may make applications for the following:

(a) recognition or recognition and declaration of enforceability of a decision;

(b) enforcement of a decision given or recognised in the requested Member State;

(c) establishment of a decision in the requested Member State where there is no existing decision, including where necessary the establishment of parentage;

(d) establishment of a decision in the requested Member State where the recognition and declaration of enforceability of a decision given in a State other than the requested Member State is not possible;

(e) modification of a decision given in the requested Member State;

(f) modification of a decision given in a State other than the requested Member State.

2. A debtor against whom there is an existing maintenance decision may make applications for the following:

(a) recognition of a decision leading to the suspension, or limiting the enforcement, of a previous decision in the requested Member State;

(b) modification of a decision given in the requested Member State;

(c) modification of a decision given in a State other than the requested Member State.

3. …

4. Save as otherwise provided in this Regulation, the applications referred to in paragraphs 1 and 2 shall be determined under the law of the requested Member State and shall be subject to the rules of jurisdiction applicable in that Member State.

45. Herr B's intended application therefore falls within article 56(2)(c). Article 57 specifies that 'an application under Article 56 shall be made using the form set out in Annex VI or in Annex VII,' and stipulates the minimum requirements to be included in the form. Annex VI is headed 'application form with a view to the recognition, declaration of enforceability or enforcement of a decision in matters relating to maintenance obligations' and contains no reference to modification. Annex VII however is entitled 'application form to obtain or have modified a decision in matters relating to maintenance obligations' and is plainly intended to initiate applications either to establish an original or to modify an existing decision by way of the Maintenance Regulation. It is of note that both the Annex 6 and 7 forms require their opening section, Part A, to be completed by the Central Authority of the Requesting Member State, in this case Germany.
46. All these factors cumulatively lead to my conclusion that in relation to modification applications there is only one route laid down by the Maintenance Regulation, via Central Authorities: and no permissible short-circuit option by application direct lodged by the applicant in any court in the Member State where the respondent to the application (or the creditor) is habitually resident.
47. That conclusion of itself would suffice to determine the issue before me: this Form A did not have the power to seise the Slough County Court (or indeed any court in England and Wales) with the jurisdiction to determine a modification application under the Maintenance Regulation nor, as requested, to transfer that application to the PRFD.

To what extent, and how effectively, have domestic law provisions affected the operation, in relation to incoming applications, of the Maintenance Regulation

48. There is a second, domestic (by which I mean English and Welsh) layer of established procedure which lays down positively how such modification applications are to reach court, compliance with which is mandatory, and which requires the involvement of the Lord Chancellor as Central Authority for England and Wales, operating through the REMO Unit.
49. The Maintenance Regulation is directly applicable by virtue of section 2(1) of the European Communities Act 1972 with the consequence that it took effect on 18 June 2011 without any necessary interposition of domestic legislation. However section 2(2) and Schedule 2 of the 1972 Act make provision (inter alia) for any designated Minister or department by order, rules, regulations or scheme to make provision:

(a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or

(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above;

and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the EU and to any such obligation or rights as aforesaid.

50. Whereas therefore a directly applicable EU Regulation does not require domestic legislation to take effect, neither does it preclude it (as is made plain in the case of the Maintenance Regulation by article 56(4), reproduced above). Contemplated and validated by the 1972 Act is such subordinate legislation as may be necessary or desirable to supply connecting links and to construct an interface between the autonomous language in which the Maintenance Regulation is expressed and the procedural and other requirements of existing or projected domestic law in England and Wales.
51. These connective functions are performed by the CJJ(M)R, made pursuant to section 2(2) of the 1972 Act, and twice amended since their introduction in 2011. These Regulations supply the necessary cement to form that interface. The context and the intent appear plainly from the Explanatory Memorandum^[1] which accompanied the Regulation when it was laid before Parliament, paragraph 2 of which sets out the purpose of the instrument:

2.1 This statutory instrument makes provision to remove legislation inconsistent with the Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (the Maintenance Regulation) and to make necessary provision to operate it in England and Wales, Scotland and Northern Ireland.

2.2 The provisions will facilitate the reciprocal enforcement of maintenance decisions under the Maintenance Regulation, access to and the transmission and use of information for the purposes of the Regulation and provision for authentic instruments and court settlements to be recognised and enforced in the same way as maintenance decisions. The statutory instrument also makes provision for allocation of jurisdiction in maintenance matters between the different parts of the United Kingdom. The Maintenance Regulation has direct effect and will be applicable in the UK (and throughout the European Union) on 18 June 2011.

Paragraph 4.1 recognises:

4.1 This statutory instrument makes regulations under s2(2) of the European Communities Act 1972 (s2(2) regulations) to make the necessary changes to domestic law to ensure appropriate application of the Maintenance Regulation in the UK. …

52. By virtue of CJJ(M)R regulation 3, Schedule 1 'contains provisions relating to the enforcement of maintenance decisions pursuant to the Maintenance Regulation.' That Schedule originally contained only four Parts.
53. The only reference in the Explanatory Memorandum to modification applications relates to the Maintenance Regulation article 8 restrictions (see [37] above), and similarly the only reference to modification applications in the CJJ(M)R as originally promulgated was to the provision made expressly for article 8 by paragraph 9 of Schedule 6.
54. The CJJ(M)R have been twice amended since they first came into force contemporaneously with the Maintenance Regulation on 18 June 2011. To the original four Parts contained in CJJ(M)R Part 5 was added in 2012 by reg 9 of and paragraph 8 of Schedule 5 to the International Recovery of Maintenance (Hague Convention 2007 etc.) Regulations 2012, SI 2012/2814. The new Part, entitled Establishment and Modification of Maintenance under the Maintenance Regulation, establishes a distinct procedure to be adopted in an application such as Herr B wishes to advance^[2].
55. The most recent amendments to Schedule 1 of CJJ(M)R were introduced by the Crime and Courts Act 2013 (Family Court: Consequential Provisions) (No 2) Order 2014 (SI 2014/879) to make way for the introduction on 22 April 2014 of the Family Court. This disposed of what Mostyn J at [18] of EDG v RR described as the 'slight fin de siècle quality' of the 2011 Regulation as it was when he dealt with it on 13 March 2014, some days before that instrument introducing these Family Court compliant amendments was made on 31 March.
56. In this fashion incoming Maintenance Regulation applications are, as envisaged and permitted by virtue of article 56(4)) to be 'determined under the law of [England and Wales]' and are 'subject to the rules of jurisdiction applicable in [England and Wales].'
57. Whereas paragraphs 4 and 6 of Schedule 1 (which deal with enforcement in Parts 2 and 3 of Schedule) refer to enforcement under Chapter IV of the Maintenance Regulation, paragraph 11 in Part 5 'applies to an application submitted under article 56 for establishment or modification of a decision to the Lord Chancellor.' This differentiation of treatment again is consistent with the proposition that Chapter IV of the Maintenance Regulation does not encompass modification applications within its ambit.
58. Before I turn to the detail of the single paragraph 11 which comprises the whole of Schedule 1 to CJJ(M)R I will complete the picture of the domestic procedural framework erected to facilitate the entry into force of the Maintenance Regulation, contained in the FPR.
59. Perhaps somewhat unusually, PD 34C is not referred to at all in FPR Part 34 to which it is appended and which it supplements. PD 34C is entitled 'Applications for Recognition and Enforcement to or from European Member States.' Paragraph 1.1 explains:

The Maintenance Regulation (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations) ('the Maintenance Regulation') applies across the European Union from 18 June 2011. It applies to all cases for recognition and enforcement in or from a European Union Member State from that date. The domestic legislation facilitating the application of the Maintenance Regulation is the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 ('the CJJMR').

60. PD 34C also contains general provisions of which those presently relevant are contained in paragraphs 3.1 and 3.2 under the heading 'Application of the Maintenance Regulation rules to recognition, registration and enforcement in England and Wales of an order from another Member State.' They refer one on to FPR rule 34.36C and PD 34E (or, in the case of applications emanating from Denmark, to Section 1 Chapter 3 of FPR Part 34) where provision for such cases is to be found.
61. The title to FPR Part 34 is 'Reciprocal Enforcement of Maintenance Orders.' It is a complex provision dealing variously with a collection of domestic statutes, Conventions, the Judgments Regulation and this Maintenance Regulation. It contains reference to modification powers under the Maintenance Orders (Facilities for Enforcement) Act 1920 (in rule 34.5), and contains rule modifications (in rule 34.13) in relation to the application of the similarly entitled Act of 1972 to Hague Convention Countries and to the USA. Part 34 nowhere contains any reference to a modification application under article 56 of the Maintenance Regulation. Indeed the only passage in Part 34 which has relevance to the Maintenance Regulation is that rule 34.36C which provides simply:

34.36C. Practice Direction 34E makes provision regarding—

(a) an application for enforcement of a maintenance decision to which section 1 of Chapter IV of the Maintenance Regulation applies; and

(b) an application by a debtor under Article 21 of the Maintenance Regulation for refusal or suspension of enforcement.

62. As for PD 34E, this is headed 'Reciprocal Enforcement of Maintenance Orders – Designated Family Judge Areas.'
63. Nowhere in the FPR provisions referred to in the preceding 4 paragraphs is there any explicit reference to that Maintenance Regulation power to modify. They are solely concerned with recognition, registration and enforcement. That analysis in my opinion supports the conclusion that modification applications can only be pursued in England and Wales in accordance with the article 56/Annex VII/Central Authority route and must comply with Part 5 of Schedule 1 to CJJ(M)R.
64. Part 5 comprises a single paragraph, paragraph 11 of Schedule 1 which 'applies to an application submitted under Article 56 for establishment or modification of a decision to the Lord Chancellor ...' (para 11(1)). The parts of the paragraph which relate to procedure and are relevant to a modification (or an establishment) application are these:

Part 5 Establishment and modification of maintenance under the Maintenance Regulation

11(1)    …

(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 court officer of the family court in the Designated Family Judge area in which the respondent is residing.

(3) Upon receipt of the application under sub-paragraph (2), the court 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 family court has power to make the decision or modification sought under the law in force in England and Wales.

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

(5) (revoked)

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

(7) If the respondent does not reside in the Designated Family Judge area to which the application has been sent, the court officer shall –

(a) if satisfied that the respondent is residing within another Designated Family Judge area, send the application to the court officer of the family court 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 court officer who receives an application by virtue of sub-paragraph (7)(a) shall proceed under sub-paragraph (6) as if that court officer had decided that the family court has power to make the decision or modification sought.

(9)  Where the court officer has determined in accordance with sub-paragraph (3)(b) that the family 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 law in force in England and Wales.

(10) [… applies to applications submitted in Northern Ireland]

(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.

65. The references to the Lord Chancellor in paragraph 11 clearly are to him in his capacity as the Central Authority and, as noted, he performs his functions through the REMO Unit. Equally clear, in my judgment, is the conclusion that it is only via submission through the Central Authority for England and Wales in London of an Annex VII application that an application for modification under article 56 of the Maintenance Regulation can be directed to the designated Family Court.
66. Since submissions were concluded the relatively recent decision of the CJEU in Sanders v Verhaegen; Huber v Huber C 400/13 and C 408/13 (18 December 2014)^[3] has come to my attention. In each of the cases under scrutiny a German court had reached conclusions as to the appropriate domestic court by which a Maintenance Regulation application should be determined, by reference to German domestic regulations governing such questions. These German rules were intended to centralise jurisdiction, and the courts competent thereunder (the Appeal Courts) were accordingly less localised than those (far more numerous) for which article 3(b) of the Maintenance Regulation provided. The question raised in each case was whether the domestic provision contravened the requirements of the Maintenance Regulation; and the issue therefore raised at [15] was 'if Article 3(a) and (b) [are] in fact to govern both international jurisdiction and territorial jurisdiction, the Member States would be prohibited from adopting rules on venue which deviate from those laid down in the Regulation.'
67. After fully considering that issue the ruling of the court was as follows:

Article 3(b) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, must be interpreted as precluding national legislation such as that at issue in the main proceedings which establishes a centralisation of judicial jurisdiction in matters relating to cross-border maintenance obligations in favour of a first instance court which has jurisdiction for the seat of the appeal court, except where that rule helps to achieve the objective of a proper administration of justice and protects the interests of maintenance creditors while promoting the effective recovery of such claims, which is, however, a matter for the referring courts to verify.

68. In the result therefore it is for the court of the Member State in question (but only, I suppose but in no way go so far as to decide, if challenge is launched) to decide whether the objectives of the proper administration of justice, the protection of the interests of the maintenance creditor and the effective recovery of enforcement claims are on balance promoted rather than hindered by their domestic law's departure from Maintenance Regulation provisions as to venue. Any such balancing exercise is not however one which I am called upon to conduct in the context of this strike-out application.
69. The effect of paragraph 4 in Part 2 of Schedule 1 fell for consideration by Mostyn J in EDG v RR. I find myself at variance with the approach he adopted at [13] and [14] of that case, which (I emphasise) concerned the validity of an application made by a maintenance creditor in France to enforce a foreign maintenance decision against the English resident debtor. Mostyn J expressed the view that:

13 Given that, under the European Communities Act 1972, European law has direct applicability in the United Kingdom, it should not be necessary for Parliament or the Secretary of State to make any secondary legislation in order to give effect to the rights expressed in the Maintenance Regulation.

?? However, notwithstanding that, in a sense, the step is otiose, the Secretary of State has made regulations, which were approved by Parliament under the Negative Resolution Procedure in June 2011. These are The Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011 No. 1484). …

70. That approach is inconsistent with the analysis which I have adopted above, although it resonates somewhat with the question considered by the two German courts in Sanders v Verhaegen; Huber v Huber. But as I am concerned with a modification application, rather than an enforcement application to which a quite distinct set of provisions are applied by CJJ(M)R, I will refrain from expressing my view about the 'ambiguity' which Mostyn J at [15] descried, or upon the outcome at which he arrived in [16] and [17] that direct application by the applicant creditor to the PRFD (without involvement of the Central Authority in the person of the Lord Chancellor/REMO Unit) was permissible rather than (as paragraph 4 since the establishment of the Family Court now mandates) to 'the court to which an application for enforcement is to be made, … in England and Wales, the family court,' with 'the application for enforcement … to be transmitted to the family court … ('the enforcing court') … in England and Wales, by the Lord Chancellor.'

Conclusion

71. It follows that the Form A sent on behalf of Herr B to the Slough County Court was not effective to seise that court with power to determine his intended modification application. That court had no power to make the orders which it did, and the proceedings purportedly thus commenced and pursued must now be struck out.
72. A primary submission made by Mr Tyzack therefore succeeds, that the only route for such an application is via Chapter VII of the Maintenance Regulation and no approach direct to a court without involvement of Central Authorities is permissible. Mr Tyzack advanced submissions by way of fall-back that the proceedings should be brought to a halt on consideration of common law abuse of process principles and/or by virtue of FPR rule 4.4. With all the deference that is due to his careful submissions I nevertheless conclude that I should not lengthen this judgement by entering into such extraneous and (while the ruling of the Supreme Court as to the scope of rule 4.4 on the appeal from Vince v Wyatt [2014] 1 FLR 246 is still pending) contentious areas. Nor do I intend to contend with the rival arguments fully advanced on each side as to the relevance, if any, of articles 4 and 12 of the Maintenance Regulation. Similarly the effect of the non-variability of the 7 April 2008 order is a hurdle that need only be crossed if and when raised in response to any competent modification application which Herr B may hereafter pursue. All this notwithstanding, I am very grateful to both Counsel for the erudition which went into their respective submissions.

Note 1   Accessible at EXPLANATORY NOTE    [Back]

Note 2   It is of course possible that the belated addition of this Part 5 relating specifically to establishment and modification applications resulted from an appreciation of the distinct treatment afforded them by the Maintenance Regulation, but I have not attempted to establish what led to what might be regarded as a correction of the 2011 Regulations as originally promulgated where no distinction is apparent between enforcement applications and modification (and indeed establishment) applications. The note 'Scope of Schedule 1' at page 2731 of the 2014 edition of the Family Court Practice should be updated to include reference to Part 5.     [Back]

Note 3   Accessible at [2014] EUECJ C-400/13     [Back]