PIL instrument(s)

Case number and/or case name

AB v JJB [2015] EWHC 192 (Fam)

Details of the court

England and Wales, First Instance

Articles referred to by the court

Date of the judgement

03 February 2015

Appeal history

CJEU's case law cited by the court

Summary

The proceedings were in respect of an application for a modification of a payment order. The application was made by the maintenance debtor, Herr B, who was German national. The maintenance creditor was Mrs B. The defendant had dual British and American nationality. The parties to the proceedings married and divorced twice. The proceedings, which were initiated under the Maintenance Regulation, clearly show that there was a level of uncertainty as to the relevant procedural steps which had to be followed. Mr Justice Peter Singer expressly stated: “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.” [27-28] The judge went on to hold that: “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.” [45-47]