The Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) Order 1993

Orders made by courts in Hague Convention countries U.K.

Registration in United Kingdom court of maintenance order made in Hague Convention country. U.K.

6.—(1) This section applies to a maintenance order made whether before, on or after 5th April 1993 by a competent court in a Hague Convention country.

(2) Where a certified copy of an order to which this section applies is received by the Lord Chancellor or the Secretary of State from a Hague Convention country, and it appears to him that the payer under the order is residing in the United Kingdom, he shall send the copy of the order and the accompanying documents to the prescribed officer of the appropriate court.

(3) Where the prescribed officer of the appropriate court receives from the Lord Chancellor or the Secretary of State a certified copy of an order to which this section applies, he shall, subject to the following subsections, register the order in the prescribed manner in that court.

(4) Before registering an order under this section an officer of a court shall take such steps as he thinks fit for the purpose of ascertaining whether the payer under the order is residing within the jurisdiction of the court, and if after taking those steps he is satisfied that the payer is not so residing he shall return the certified copy of the order and the accompanying documents to the Lord Chancellor or the Secretary of State, as the case may be, with a statement giving such information as he possesses as to the whereabouts of the payer.

(5) (a) The prescribed officer of the appropriate court may refuse to authorise the registration of the order if the court in the Hague Convention country by or before which the order was made did not have jurisdiction to make the order; and for these purposes a court in a Hague Convention country shall be considered to have jurisdiction if–

(i) either the payer or the payee had his habitual residence in the Hague Convention country at the time when the proceedings were insti tuted; or

(ii) the payer and the payee were nationals of that country at that time; or

(iii) the respondent in those proceedings had submitted to the jurisdic tion of the court, either expressly or by defending on the merits of the case without objecting to the jurisdiction; or

(iv) in the case of an order made by reason of a divorce or a legal separation or a declaration that a marriage is void or annulled, the court is recognised by the law of the part of the United Kingdom in which enforcement is sought as having jurisdiction to make the order.

(b) In deciding whether a court in a Hague Convention country had jurisdiction to make an order the prescribed officer shall be bound by any finding of fact on which the court based its jurisdiction.

(6) The prescribed officer of the appropriate court may refuse to authorise the registration of the order–

(a) if such registration is manifestly contrary to public policy;

(b) if the order was obtained by fraud in connection with a matter of procedure;

(c) if proceedings between the same parties and having the same purpose are pending before a court in the same part of the United Kingdom and those proceedings were the first to be instituted; or

(d) if the order is incompatible with an order made in proceedings between the same parties and having the same purpose, either in the United Kingdom or in another country, provided that the latter order itself fulfils the conditions necessary for its registration and enforcement under this Part of this Act.

(7) Without prejudice to subsection (6) above, if the payer did not appear in the proceedings in the Hague Convention country in which the order was made, the prescribed officer of the appropriate court shall refuse to authorise the registration of the order unless notice of the institution of the proceedings, including notice of the substance of the claim, was served on the payer in accordance with the law of that Hague Convention country and if, having regard to the circumstances, the payer had sufficient time to enable him to defend the proceedings.

(8) If the order is registered under subsection (3) above, the prescribed officer of the appropriate court shall serve notice in a prescribed form on the payer and give notice to the payee that the order has been registered.

(9) The payer may, before the end of the period of one calendar month beginning with the date of service of the said notice, appeal to the court in which the order is registered to set aside the registration of the order on one of the grounds set out in paragraphs (5), (6) and (7) above.

(10) If the payer appeals to the court in which the order is registered to set aside the registration of the order, the prescribed officer of the court shall give notice to the payee of the appeal and of the date of the hearing of the appeal.

(11) If the prescribed officer refuses to register the order, he shall give notice to the payee in a prescribed form that registration has been refused.

(12) A payee to whom notice has been given by the prescribed officer of any court under subsection (11) above may, before the end of the period of one calendar month beginning with the date when notice was given, appeal to that court against the refusal to register the order.

(13) If the payee appeals to the court against the refusal to register the order, the prescribed officer of the court shall give notice to the payer of the appeal and of the date of the hearing of the appeal.

(14) In the application of this section to Scotland–

(a) in subsection (8), for the words “serve notice in a prescribed form on” there shall be substituted the words “intimate to in the prescribed manner”;

(b) in subsection (9), for the words “service of the said notice” there shall be substituted the words “the said intimation”;

(c) in subsections (9), (10), (12) and (13) for any reference to an appeal there shall be substituted a reference to an application and cognate expressions shall be construed accordingly; and

(d) in subsection (11), for the words “in a prescribed form” there shall be substituted the words “in the prescribed manner”.

(15) In the application of this section to Northern Ireland, in subsection (5), for the word “respondent” there shall be substituted “defendant”.

Commencement Information

I1 Sch. 3 para. 6 in force at 5.4.1993, see art. 1

Enforcement of maintenance order registered in United Kingdom court. U.K.

8.—(1) Subject to subsections (2), (2A) and (2B) below, a registered order may be enforced in the United Kingdom as if it had been made by the registering court and as if that court had had jurisdiction to make it; and proceedings for or with respect to the enforcement of any such order may be taken accordingly.

(2) Subsection (1) above does not apply to an order which is for the time being registered in the High Court under Part I of the Maintenance Orders Act 1958(1)or to an order which is for time being registered in the High Court of Justice in Northern Ireland under Part II of the Maintenance and Affiliation Orders Act (Northern Ireland) 1966(2).

(2A) Where in a maintenance order made in a Hague Convention country there are provisions which are not enforceable under this Part of this Act, this section shall apply only to the remaining provisions of the order.

(2B) The payee under a registered order may request the partial enforcement of that order.

(3) Any person for the time being under an obligation to make payments in pursuance of a registered order shall give notice of any change of address to the clerk of the registering court, and any person failing without reasonable excuse to give such a notice shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(4) An order which by virtue of this section is enforceable by a magistrates' court in England and Wales shall, subject to the modifications of sections 76 and 93 of the Magistrates' Courts Act 1980(3)specified in subsections (4A) and (4B) below, be enforceable as if it were a magistrates' court maintenance order made by that court.

In this subsection, “magistrates' court maintenance order” has the same meaning as in section 150(1) of the Magistrates' Courts Act 1980.

(4A) Section 76 (enforcement of sums adjudged to be paid) shall have effect as if for subsections (4) to (6) there were substituted the following subsections–

“(4) Where proceedings are brought for the enforcement of a magistrates' court maintenance order under this section, the court may vary the order by exercising one of its powers under subsection (5) below.

(5) The powers of the court are–

(a) the power to order that payments under the order be made directly to the clerk of the court or the clerk of any other magistrates' court;

(b) the power to order that payments under the order be made to the clerk of the court, or to the clerk of any other magistrates' court, by such method of payment falling within section 59(6) above (standing order, etc.) as may be specified;

(c) the power to make an attachment of earnings order under the Attachment of Earnings Act 1971(4)to secure payments under the order.

(6) In deciding which of the powers under subsection (5) above it is to exercise, the court shall have regard to any representations made by the debtor (within the meaning of section 59 above).

(7) Subsection (4) of section 59 above (power of court to require debtor to open account) shall apply for the purposes of subsection (5) above as it applies for the purposes of that section but as if for paragraph (a) there were substituted–

“(a) the court proposes to exercise its power under paragraph (b) of section 76(5) below, and”.”

(4B) In section 93 (complaint for arrears), subsection (6) (court not to impose imprisonment in certain circumstances) shall have effect as if for paragraph (b) there were substituted–

“(b) if the court is of the opinion that it is appropriate–

(i) to make an attachment of earnings order; or

(ii) to exercise its power under paragraph (b) of section 76(5) above.”.

(5) The magistrates' court by which an order is enforceable by virtue of this section, and the officers thereof, shall take all such steps for enforcing the order as may be prescribed.

(6) In any proceedings for or with respect to the enforcement of an order which is for the time being registered in any court under this Part of this Act a certificate of arrears sent to the prescribed officer of the court shall be evidence of the facts stated therein.

(7) Subject to subsection (8) below, a sum of money payable under a registered order shall be payable in accordance with the order, or such part thereof as the payee may have requested should be enforced, as from the date on which the order took effect.

(8) Where a registered order was made by a court in a Hague Convention country before the date of the entry into force of the Hague Convention between the United Kingdom and that country, no sum of money falling due before that date shall be payable in accordance with the order.

(9) In the application of this section to Scotland–

(a) subsections (2) to (5) shall be omitted; and

(b) in subsection (6), for the word “evidence” there shall be substituted the words “sufficient evidence”.

Commencement Information

I2 Sch. 3 para. 8 in force at 5.4.1993, see art. 1

Variation of maintenance order registered in United Kingdom court. U.K.

9.—(1) Subject to the provisions of this section–

(a) the registering court shall have the like power, on an application made by the payer or payee under a registered order, to vary the order as if it had been made by the registering court and as if that court had had jurisdiction to make it;

(b) the jurisdiction of a magistrates' court to vary a registered order shall be exercisable notwithstanding that the proceedings for the variation of the order are brought by or against a person residing in a Hague Convention country.

(1ZA) Where the registering court is a magistrates' court in England and Wales, section 60 of the Magistrates' Courts Act 1980(5)(revocation, variation etc. of orders for periodical payment) shall have effect in relation to the registered order–

(za) as if in subsection (1) for the words “by order on complaint” there were substituted “on an application being made, by order”;

(a) as if in subsection (3) for the words “paragraphs (a) to (d) of section 59(3) above” there were substituted “subsection (3A) below” and after that subsection there were inserted–

“(3A) The powers of the court are–

(a) the power to order that payments under the order be made directly to the clerk of the court or the clerk of any other magistrates' court;

(b) the power to order that payments under the order be made to the clerk of the court, or to the clerk of any other magistrates' court, by such method of payment falling within section 59(6) above (standing order, etc.) as may be specified;

(c) the power to make an attachment of earnings order under the Attachment of Earnings Act 1971(6)to secure pay ments under the order.”;

(b) as if in subsection (4) for paragraph (b) there were substituted–

“(b) payments under the order are required to be made to the clerk of the court, or to the clerk of any other magistrates' court, by any method of payment falling within section 59(6) above (standing order, etc.)”,

and as if after the words “the court” there were inserted “which made the order”;

(c) as if in subsection (5) for the words “to the clerk” there were substituted “in accordance with paragraph (a) of subsection (3A) above”;

(d) as if in subsection (7), paragraph (c) and the word “and” immediately preceding it were omitted;

(e) as if in subsection (8) for the words “paragraphs (a) to (d) of section 59(3) above” there were substituted “subsection (3A) above”;

(f) as if for subsections (9) and (10) there were substituted the following subsections–

“(9) In deciding, for the purposes of subsections (3) and (8) above, which of the powers under subsection (3A) above it is to exercise, the court shall have regard to any representations made by the debtor.

(10) Subsection (4) of section 59 above (power of court to require debtor to open account) shall apply for the purposes of subsection (3A) above as it applies for the purposes of that section but as if for paragraph (a) there were substituted–

“(a) the court proposes to exercise its power under paragraph (b) of section 60(3A) below, and”.”.

(2) The registering court shall not vary a registered order unless–

(a) the payer under the order had his habitual residence in the United Kingdom at the time when the proceedings to vary the order were instituted; or

(b) the respondent in those proceedings had submitted to the jurisdiction of the registering court, either expressly or by defending on the merits of the case without objecting to the jurisdiction.

(3) Where an application is made to a registering court in England and Wales or Northern Ireland by the payer for the variation of a registered order, and the payee is residing in a Hague Convention country, the prescribed officer of the court shall send to the Lord Chancellor notice of the institution of the proceedings, including notice of the substance of the application, with a view to its being transmitted by him to the appropriate authority in the Hague Convention country for service on the payee.

(4) Where an application is made by the payer to a registering court in England and Wales or Northern Ireland for the variation of a registered order–

(a) the court, in considering whether or not to vary the order, shall take into account any representations made and any evidence adduced by or on behalf of the payee;

(b) a copy of any such representations and evidence shall be served on the payer by the prescribed officer of the court before the hearing;

(c) the prescribed officer of the court shall give the payee notice in writing of the date fixed for the hearing by sending the notice by post addressed to his last known or usual place of abode.

(5) Where an application is made by the payer to a registering court in England and Wales or Northern Ireland for the variation of a registered order and the payee is residing in a Hague Convention country, the order shall not be varied unless the document mentioned in subsection (3) above has been served on the payee in accordance with the law for the service of such a document in the Hague Convention country not less than six weeks previously.

(6) Where an application is made by the payee to a registering court in England and Wales or Northern Ireland for the variation of a registered order, the prescribed officer of the court shall serve the document mentioned in subsection (3) above on the payer.

(7) Where a registered order is varied by a registering court in the United Kingdom the prescribed officer of the court shall send the following documents, that is to say–

(a) a certified copy of the order of variation;

(b) a certificate signed by that officer certifying that the order of variation is enforceable and that it is no longer subject to the ordinary forms of review;

(c) a written statement signed by that officer as to whether or not the respondent or, in Scotland, the defender appeared in the proceedings for the variation of the order, and, if he did not appear, the original or a certified copy of a document which establishes that notice of the institution of the proceedings has been served on the respondent or, as the case may be, the defender; and

(d) a written statement signed by that officer as to whether or not the payer or the payee received legal aid in the proceedings,

in the case of a court in England and Wales or Northern Ireland, to the Lord Chancellor, or, in the case of a court in Scotland, to the Secretary of State, with a view to their being transmitted by the Lord Chancellor, or, as the case may be, the Secretary of State, to the appropriate authority in the Hague Convention country for recognition and enforcement of the order of variation.

(8) Where a registered order has been varied by the registering court or by a court in a Hague Convention country, the prescribed officer of the registering court shall register the variation order in the prescribed manner.

(9) Where a registered order has been varied by the registering court or by a court in a Hague Convention country, the registered order shall, as from the date on which the variation order took effect, have effect as so varied.

(10) In the application of this section to Northern Ireland, in subsections (2) and (7), for the word “respondent” in each place where it occurs, there shall be substituted “defendant”.

Commencement Information

I3 Sch. 3 para. 9 in force at 5.4.1993, see art. 1

Cancellation of registration and transfer of order. U.K.

10.—(1) Where a registered order is revoked by an order made by a court in a Hague Convention country and notice of the revocation is received by the registering court, the prescribed officer of the registering court shall cancel the registration; but any arrears due under the registered order at the date on which the order of revocation took effect, other than, in the case of a registered order made by a court in a Hague Convention country before the date of the entry into force of the Hague Convention between the United Kingdom and that country, arrears due before that date, shall continue to be recoverable as if the registration had not been cancelled.

(2) Where the prescribed officer of the registering court is of opinion that the payer under a registered order has ceased to reside within the jurisdiction of that court, he shall cancel the registration of the order and, subject to subsection (3) below, shall send the certified copy of the order to the Lord Chancellor.

(3) Where the prescribed officer of the registering court, being a magistrates' court, is of opinion that the payer is residing within the jurisdiction of another magistrates' court in that part of the United Kingdom in which the registering court is, he shall transfer the order to that other court by sending the certified copy of the order to the prescribed officer of that other court.

(4) On the transfer of an order under subsection (3) above the prescribed officer of the court to which it is transferred shall, subject to subsection (6) below, register the order in the prescribed manner in that court.

(5) Where the certified copy of an order is received by the Lord Chancellor under this section and it appears to him that the payer under the order is still residing in the United Kingdom, he shall transfer the order to the appropriate court by sending the certified copy of the order together with the related documents to the prescribed officer of the appropriate court and, subject to subsection (6) below, that officer shall register the order in the prescribed manner in that court.

(6) Before registering an order in pursuance of subsection (4) or (5) above an officer of a court shall take such steps as he thinks fit for the purpose of ascertaining whether the payer is so residing, and if after taking those steps he is satisfied that the payer is not residing within the jurisdiction of the court he shall send the certified copy of the order to the Lord Chancellor.

(7) The officer of a court who is required by any of the foregoing provisions of this section to send to the Lord Chancellor or to the prescribed officer of another court the certified copy of an order shall send with that copy–

(a) a certificate of arrears signed by him;

(b) a statement giving such information as he possesses as to the whereabouts of the payer; and

(c) any relevant documents in his possession relating to the case.

(8) In the application of this section to Scotland–

(a) in subsection (2), for the words “within the jurisdiction of that court” there shall be substituted the words “in Scotland”;

(b) subsections (3) and (4) shall be omitted; and

(c) for the words “Lord Chancellor”, in each place where they occur, there shall be substituted the words “Secretary of State”.

Commencement Information

I4 Sch. 3 para. 10 in force at 5.4.1993, see art. 1

Steps to be taken by Lord Chancellor or Secretary of State where payer under certain orders is not residing in the United Kingdom. U.K.

11.—(1) If it appears to the Lord Chancellor or the Secretary of State that the payer under a maintenance order, a certified copy of which has been received by him from a Hague Convention country, is not residing in the United Kingdom or, in the case of an order which subsequently became a registered order, has ceased to reside therein, he shall send to the appropriate authority in that country–

(a) the certified copy of the order in question and a certified copy of any order varying that order;

(b) if the order has at any time been a registered order, a certificate of arrears signed by the prescribed officer;

(c) a statement giving such information as the Lord Chancellor or the Secretary of State possesses as to the whereabouts of the payer; and

(d) any other relevant documents in his possession relating to the case.

Commencement Information

I5 Sch. 3 para. 11 in force at 5.4.1993, see art. 1

(1)

1958 c. 39.

(2)

1966 c. 35 (N.I.).

(3)

1980 c. 43; section 76 was amended by the Criminal Justice Act 1982 (c. 48), Schedule 16 and by the Maintenance Enforcement Act 1991 (c. 17), section 7. Section 93 was amended by the Family Law Reform Act 1987 (c. 42), Schedule 2 and by the Maintenance Enforcement Act 1991, Schedule 2.

(4)

1971 c. 32.

(5)

1980 c. 43; section 60 was substituted by section 4 of the Maintenance Enforcement Act 1991.

(6)

1971 c. 32.