(Family Division; Hogg J; 31 July 2009)
The French mother and the father lived together briefly in England and had a child together; when the relationship broke down the mother and child went to live in France. When the child was about 5 the mother obtained a French order for child maintenance, requiring the father to pay 3,000 francs a month. The mother asserted that the father had made no payments under the order; the father alleged that he had paid some money.
In any event, after the father was declared bankrupt, when the child was about 15 years old, the mother issued an English application under Children Act 1989, Schedule 1 for orders for a lump sum and periodical payment. The father failed to take part in the English proceedings, but at the final hearing the judge ordered the father to pay a lump sum of £42,219, which was equivalent to the total arrears, and thereafter periodical payments of €767 pm until the child ceased full-time education. The father failed to make any of the payments, although a charging order against the father's London property in respect of the lump sum and the mother's costs was eventually made absolute.
Almost 2 years after the English order the mother applied to increase the periodical payments order, for secured periodical payments, and for a property adjustment order. The father sought to appeal the original order.
The appeal was allowed. The English court had had no power under the Children Act 1989 to make an order for either a lump sum or a property adjustment order for the child's benefit. Under Schedule 1, para 14 of the 1989 Act, which was the applicable paragraph when one parent lived in England and Wales and the child lived outside England and Wales with the other parent, the court could make a periodical payments order, or a secured periodical payments order, but not a lump sum or a property adjustment order.
The court should ensure that it had jurisdiction in a specific context before making any orders, and it was obvious from the transcript that the judge had not considered the court's jurisdiction, whether under the 1989 Act or under the common law.
In any event, while a foreign debt could be enforceable at common law, to do so it must be final and conclusive, not subject to variation by the foreign court. Arrears of maintenance calculated to a specific sum might be enforceable, provided the foreign court could not vary those arrears. The English court could not assume that the French court operated under laws similar to the English court, and that the French court could not vary accrued sums prior to the date of any application to vary. Even if the accrued sums were non-variable, the mother had adopted the wrong procedure; she should have sought recognition and enforcement of the order as a foreign maintenance order, under Brussels I. Under Brussels I the French court continued to be seized of the issue concerning the child's maintenance, and the English court should have declined jurisdiction in favour of the French court, as the court first seized.
The order providing for monthly maintenance should not have been made and was unsustainable, as it was in conflict with the pre-existing French order and flew in the face of the provisions of Brussels I.