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Melanie Barnes: Implications of Hague 2007 being implemented
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Aug 2, 2012, 06:30 AM
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If domestic child maintenance regulations can be described as labyrinthine then by analogy any consideration of the rules of reciprocal enforcement are similar to sinking in quicksand whilst listening to Songs of Love and Hate by Leonard Cohen. Although most practitioners have reluctantly been dragged into processing jurisdictional and other issues introduced by the Maintenance Regulation 4/2009, the 2007 Hague Convention on the International Recovery of Child Support and Others Forms of Family Maintenance may have been perceived by many as something that may happen in the distant future. That is until recently when the government introduced the International Recovery of Maintenance (Hague Convention 2007) (Rules of Court) Regulations 2012 and commenced a specialist consultation for domestic legislation in order to implement the main provisions by the end of this year in line with EU obligations.
In a nutshell, Hague 2007 will replace the provisions of the 1973 Hague Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations and UN Convention on the Recovery Abroad of Maintenance 1956, the former of which only allowed for enforcement or modification. This does depend on obligations between states but in essence Hague 2007 has been drafted to supersede those Conventions. Hague 2007 provides both for establishment of child maintenance (aged under 21) and spousal support; though a contracting state can also extend provisions to wider forms of family maintenance, for example, those similar to a claim under the Dependant Relatives Rule. This will not be the case in the EU even though the Maintenance Regulation has a wide scope in relation to family obligations or an affinity.
In terms of application, as between EU member states, cross border applications will be exclusively governed by the Maintenance Regulation. This of course, is complicated by the fact the EU is bound by Hague 2007 and that all member states opted into the Hague Protocol save for the UK and Denmark. However, it is worth separating the two regimes clearly in terms of scope as Hague 2007 will only apply in cases between the UK and Contracting States outside of the EU.
Administrative co-operation is seen as the foundation of the potential efficiency of Hague 2007 and there are provisions for data sharing that will allow Contracting States to provide financial and other information which will assist in locating the creditor or debtor or even decide whether a claim is proportionate. For example, even where there is no pending application, a Central Authority could request ‘specific measures' such as locating a debtor or creditor application or provide financial information from a government department to assess income. In trying to improve the current regime, Hague 2007 has focused on many practical matters to encourage efficiency with which international claims are pursued, such as generous legal aid provision and standardised forms. It also allows and encourages the use of new information technologies to reduce the costs and delays which are currently a problem in reciprocal enforcement cases.
But how does this affect the everyday case? Well, issues of jurisdiction and administrative co-operation are clearly relevant and will need to be digested at some point, but it is worth bearing in mind that it could perhaps be difficult explaining to a client why significant fees and disbursements have been incurred when advice and representation is offered for free in all cases for child maintenance under the Maintenance Regulation and Hague 2007, or may also be available in applications for spousal maintenance. Although this only applies for cases initiated through REMO, there are no provisions determining which court the applications should be sent (in contrast to enforcement which is dealt with at the Magistrates' Court or in the High Court if transferred under the Maintenance Orders Act 1958) and legal assistance could therefore be available for maintenance matters at all levels of court.
It is hoped that 2007 Hague will provide a much more accessible and effective regime for reciprocal enforcement and that countries will endeavour to reform domestic law in order to achieve the intended scope. Certainly, administrative co-operation and legal aid provisions reflect a high level of commitment by countries to ensure that creditors and debtors can more easily establish, enforce or modify maintenance orders without the difficulty and delay that the current regime produces. Whether this can be achieved of course remains to be seen but the global interest and support of Hague 2007 is reassuring.
Melanie Barnesis a family law solicitor for Penningtons Solicitors LLP. Her experience includes complex ancillary relief, civil claims on behalf of unmarried couples, child maintenance claims, divorce with an international element and cross border cases involving abduction.