Return to Contents

ENFORCEMENT AND RECOVERY ABROAD OF MAINTENANCE -

JERSEY STEPS INTO A NEW AGE

Richard Whitehead and Wendy Kinnard

INTRODUCTION

On October 11th, 2000, the Maintenance Orders (Facilities for Enforcement) (Jersey) Law 2000 (“the 2000 Law”) was registered in the Royal Court. The 2000 Law will replace the Maintenance Orders (Facilities for Enforcement) (Jersey) Law 1953 (“the 1953 Law”) with a modern scheme which will enable the extension to Jersey of the United Nations Convention on the Recovery Abroad of Maintenance, 1956, and the Hague Convention on the Enforcement of Decisions relating to Maintenance Obligations, 1973. The 2000 Law will also apply a new scheme for enforcing maintenance orders between Jersey and other Commonwealth jurisdictions and allow the States to extend that scheme to any other country, whether or not a party to the two above mentioned Conventions, and whether or not that country offers reciprocal arrangements. This will enable the Commonwealth scheme to continue to apply to countries which leave the Commonwealth[1].

POLICY BEHIND THE 2000 LAW

Defects in the 1953 Law were first drawn to the attention of the Legislation Committee by those complaining that maintenance orders made by a Jersey court could not readily be enforced in Scotland when a parent had absconded. Furthermore, such maintenance orders could be enforced under the 1953 Law only in designated reciprocating Commonwealth countries. This, obviously, did not include France or Portugal, with which significant numbers of the Island’s population have close ties. Research showed that some individuals were moving from jurisdiction to jurisdiction to avoid their responsibilities and were assisted in doing so because enforcement procedures were difficult and cumbersome.

The 1953 Law was modelled upon United Kingdom legislation drawn up in the 1920s and had not kept pace with changes in legislation elsewhere, nor with changes in society affecting issues of child support and maintenance over more than half a century. In the 1953 Law the definition of “maintenance order” did not include an order relating to a child of unmarried partners. Such a child was deprived of the benefit of enforcement when the defaulting parent would ordinarily have had to pay in the jurisdiction in which he or she resided. There was no provision to enable public bodies such as the Child Protection Agency in the United Kingdom to claim monies which were due. As the 1953 Law applied only to maintenance in periodical payments, it excluded the payment of lump sums. Thus, where an order was not strictly one for periodical payments, the obligation to pay could be escaped on a technicality.

In the view of the Legislation Committee, it was not appropriate that fundamental obligations concerning the welfare of children could be evaded in this way. The first aim of the Committee was therefore to ensure that no parent who had been ordered to pay maintenance should be able to use the fact of residence in Jersey as a shield from his or her obligations.

THE ORIGINS OF THE 2000 LAW

The 2000 Law is based on a model produced, as long ago as 1981, by the Commonwealth Secretariat. It was one of a number of models which form a series of “accession kits” for Commonwealth jurisdictions. Others have been prepared for the Hague Convention on the Service of Process and the Taking of Evidence, Legalisation of Documents, International Conventions in the field of succession and the Hague Convention on the Civil Aspects of International Child Abduction.

The accession kit on maintenance was prepared for the Commonwealth Secretariat by Professor David McLean.

The Commonwealth Scheme

The Commonwealth Scheme is the basis of Part I of the 2000 Law which deals with the enforcement of maintenance orders made in the Island and in Commonwealth countries.

In a memorandum to the Commonwealth Law Ministers Conference in 1980, the scheme was summarised as follows -

“Almost all Commonwealth countries have legislation based on a scheme devised in 1920.[2] That scheme caters for both situations encountered in this area -

(i) that in which the payer under a maintenance order leaves the jurisdiction in which the order was made, so that the payee needs to be enabled to enforce the order in the country to which the payer has gone; and

(ii) that in which a claim for maintenance is made against a defendant who has already taken up residence abroad, e.g. a claim by a wife against a husband who has travelled abroad and has now ceased to remit payments for her support.”

The 1920 scheme had shortcomings. Although it was found in almost all Commonwealth jurisdictions in the same form, it applied only to those countries specifically designated as reciprocating countries. Further, the scheme had been found to be procedurally difficult and to have certain defects. For instance, it did not apply to affiliation orders. The scheme was refined and improved in some jurisdictions, notably, Canada, Australia and the United Kingdom[3], but no similar improvements had been made to the Jersey legislation. Furthermore, as mentioned above, the scheme in Jersey, as in other Commonwealth jurisdictions, could only be applied to reciprocating Commonwealth countries. The 1953 Law only applied to any “part of Her Majesty’s dominions outside the Island” which the States were satisfied offered reciprocal arrangements.[4]

The solution arrived at by the various regional meetings of the Commonwealth Law Ministers was a model Bill, which enabled the modernisation of the Commonwealth scheme, and gave the option of adding further model provisions to enable accession to the two Conventions referred to above.

Part I of the 2000 Law therefore broadens the scope of the Commonwealth scheme so as to include affiliation orders, defines “maintenance order” very widely, and dispenses with the requirement to designate reciprocating Commonwealth countries. It will apply automatically between Jersey and all other Commonwealth jurisdictions including Scotland.

The 1956 UN Convention on the recovery abroad of maintenance

The purpose of this Convention is “to facilitate the recovery of maintenance to which a person ……. who is in the territory of one of the Contracting Parties, claims to be entitled from another person …… who is subject to the jurisdiction of another Contracting Party”[5].

The United Kingdom acceded to the convention in 1975 and it is given effect in the United Kingdom by the Maintenance Orders (Reciprocal Enforcement) Act 1972.

The Convention is based on reciprocity. It applies only between contracting States. Its scope is wide, in that, there being no definition of the term “maintenance”, it is broad enough to cover lump sums, as well as the more usual periodical payments, and it embraces most types of “dependants”, including spouses, ex-spouses and children - legitimate or illegitimate.

It applies to applications to vary maintenance orders, as well as to original orders and to revocations of such orders.

In the most simple of terms, when given effect in the Island by the 2000 Law, the Convention will enable a claimant who is in Jersey to have his or her claim for maintenance transmitted to the receiving agency in another Convention country, where under the machinery which the Convention establishes, “all appropriate steps for the recovery of the maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and execution of any order or other judicial act for the payment of maintenance” are required to be taken by the receiving agency[6].

These provisions will, of course, apply in reverse where a claim is received in Jersey, pursuant to the provisions of the 2000 Law.

The Convention would be implemented in Jersey by Part 3 of the 2000 Law. Other contracting parties include all E.C. member states.

The 1973 Hague Convention on the recognition and enforcement of decisions relating to maintenance obligations

The United Kingdom ratified this Convention in December 1979 and it entered into force there in 1980. Other countries which are also parties include, importantly, France and Portugal.

The Convention applies to maintenance orders made by the authorities of a Contracting State in respect of “a maintenance obligation arising from a family relationship, parentage, marriage or affinity, including child maintenance for an illegitimate child, between -

(a) a maintenance creditor and a maintenance debtor;

or

(b) a maintenance debtor and a public body which claims re-imbursement of benefits given to a maintenance creditor.”.[7]

This Convention is also based on reciprocity. The States will have power under Part 4 of the 2000 Law to designate other Convention countries for the purposes of the Law.

The Convention requires participating countries to recognise decisions and settlements on maintenance in other such countries and to enforce them. It applies to orders which are not subject to “ordinary forms of review” and which are made by an authority having jurisdiction for the purposes of the Convention[8].

The Convention does not only apply to orders made by courts but to decisions rendered by tribunals and government agencies, provided the decision is reached under the basic rules of natural justice[9].

It is to be noted that the Convention applies to re-imbursement by the maintenance debtor of a “public body”, enabling a government agency which finds itself having to support an illegitimate child to obtain, on its own application, an affiliation order against the putative father.

THE PROVISIONS OF THE NEW LAW IN OUTLINE

In order to explain how the 2000 Law will give effect to the two Conventions and to the full provisions of the new Commonwealth scheme, it is necessary to examine, briefly, the individual provisions of the Law.

Part 1 - Interpretation and the Commonwealth Scheme

Article 1 defines several terms used in the 2000 Law, most significantly “court” which, as permitted by the Hague Convention, includes government agencies and indeed any tribunal or person having the power to make, confirm, enforce, vary or revoke a maintenance order.

It also defines “maintenance order”. This definition is central to the entire Law. It includes affiliation orders and makes provision for the recovery of maintenance by government agencies, as permitted by the Hague Convention.

Article 2 will enable the Judicial Greffier to act to procure the registration of a final order made in Jersey in a Commonwealth country. The Greffier may take this action himself, without waiting for an application from a party, in order to save time. Article 3 enables the Jersey courts to make a provisional order where the potential payer has left the Island. The provisional order can be sent to a Commonwealth country to which the potential payer has gone, for confirmation by the courts in that country. Once so confirmed, that order is treated as if it were a final order made in Jersey and can be enforced as such, if the potential payer ever returns. Note that confirmation can take place in any Commonwealth country to which the order is sent, not just the first one, so that a potential payer who moves from one jurisdiction to another can be followed by the order.

Provision is made by Article 5 so that evidence taken in a Commonwealth country to which a provisional order has been sent, may be considered by the Jersey court which made the order. That court may rescind or vary the provisional order, but the applicant must be given an opportunity to provide further evidence or to make representations.

Article 6 makes provision for the variation and revocation by courts in Jersey of final orders or confirmed orders and enables such variation to be made by means of a provisional order which (in similar fashion to the original order) is subject to confirmation in the other Commonwealth country concerned. If the variation of an order is initiated in the Commonwealth country to which the order was sent for confirmation, Article 7 enables the Jersey court which made the order to consider a provisional order made in that Commonwealth country and to decide whether or not to confirm it.

In respect of orders which originate in Commonwealth countries, Article 8 requires their registration, if final orders, if the “payer” is resident in Jersey. If he is not resident, the order will be referred to the originating country, or the appropriate authority of another Commonwealth country, if the payer is thought to be residing there (see Article 15).

Where the Jersey courts are requested to confirm a provisional order made in a Commonwealth country, the procedure to be followed is set out in Article 10 of the new Law. This is almost identical to the existing procedure under the 1953 Law.

Once confirmed, a provisional order, or a final order which has been registered, can be enforced is the same way as if it had been made in Jersey (Article 11). Unlike the existing arrangements, payments under a confirmed order can be back-dated by the Jersey court, up to the date of the making of the provisional order in the Commonwealth country (Article 11(5)).

Final orders registered in Jersey can be varied or revoked (as can provisional orders confirmed in Jersey). Article 12 and Article 13 deal with the position where a registered or confirmed order is revoked or varied, either in the original Commonwealth country or in another to which the order was sent for confirmation.

If an overseas order is revoked, it will be cancelled by the Judicial Greffier, without prejudice to the liability of the payer for any arrears.

Article 16 contains various appeal provisions - but no appeal lies from a provisional order made overseas or against a refusal to register a final order.

If a court in a Commonwealth country requests evidence needed for proceedings in relation to maintenance, Article 17 enables the Jersey court to obtain the evidence and transmit it overseas.

Article 18 enables the Jersey court to request evidence from courts in Commonwealth countries for the purposes of deciding an application for confirmation or registration in Jersey.

A significant omission in the 1953 Law was any provision for the conversion of currency. That is now dealt with by Article 19 of the new Law which provides that any sums expressed in a currency other that the currency of the Island shall be converted in to the local currency on the basis of the rate of exchange prevailing at the relevant date. That date is the date of registration or confirmation of the order. Article 20 provides for the translation of any order of a Commonwealth court which is not in English.

Part 2 - Extension of the Commonwealth scheme to other countries.

This novel provision enables the States to apply the Commonwealth scheme to a country which is neither a Commonwealth country nor a reciprocating country. However, in practice, this provision is only likely to be used (if ever) for countries which have in fact made reciprocal arrangements and/or were members of the Commonwealth.

Part 3 – Enforcement pursuant to the UN Convention

The States may designate countries which are States Parties to the Convention for the purpose of Part 3 of the 2000 Law. The procedure for sending applications for maintenance to designated countries is set out in Article 23. The application is made through the Judicial Greffier to the Lieutenant Governor who transmits it to the appropriate authority in the convention country. Conversely, Article 24 prescribes the procedure on receipt in Jersey of an application by a person in a Convention country. The Judicial Greffier, on receipt of the request from the Lieutenant Governor, is required to institute proceedings in the Royal Court for maintenance, on behalf of the applicant. Article 25 prescribes what happens where the payer under an order made under Part 3 leaves the Island.

Article 27 enables the Jersey court to vary or revoke an order made under Part 3 and Articles 28 and 29 make provision for the taking and obtaining of evidence for the purposes of this Part.

Part 4 – Enforcement under the Hague Convention

Hague Convention countries can be designated by the States, for the purposes of this Part of the 2000 Law. Article 31 sets out the procedure for transmitting orders made in Jersey to a Hague Convention country for enforcement. There are detailed rules in the Convention, which are reflected in this Article about when the Jersey court is deemed to have jurisdiction to transmit an order. The Judicial Greffier has to satisfy himself that these requirements are met before transmitting the order.

Article 32 provides for the variation or revocation of an order which has been transmitted, on the application of the payer, to a Hague Convention country pursuant to Article 31. Article 33 provides for the registration of orders transmitted by the authorities in a Hague Convention country to Jersey. The Judicial Greffier makes an initial assessment of whether the transmitting court had jurisdiction under Article 7 of the Convention, but Article 34 enables that decision to be challenged. Article 35 gives a power to appeal against a refusal to register an order in Jersey. Article 36, like Article 11, provides for enforcement in Jersey of an order registered under Article 33 as if it were made in Jersey and Article 37 applies Articles 14 and 15 (cancellation and transfers of orders) to orders registered under Article 33. Articles 38-40 deal with obtaining evidence for the purpose of enforcement proceedings in Jersey or in a Hague Convention country and with currency conversions.

Part 5 - Supplemental

Article 41 provides that provisional orders made in Jersey under Article 3 of the 2000 Law, cease to have effect on the remarriage of the payee.

Article 42 enables certificates and other documents recovered from overseas to be admissible in evidence. Article 46 amends the Separation and Maintenance (Jersey) Law 1953 so that agencies such as the Child Support Agency can bring proceedings in Jersey for maintenance of a child. Article 45 repeals the 1953 Law.

CONCLUSION

It is hoped that the 2000 Law will put Jersey at the forefront of jurisdictions that provide facilities for the enforcement of maintenance orders. The overall objectives which the 2000 Law seeks to achieve are that no person who is legally obliged to maintain his/her spouse, partner or child, can regard Jersey as a safe haven for avoiding that obligation and that a person in Jersey who is entitled to maintenance from a person living elsewhere is provided by law with the best possible opportunity to enforce that right. The putting in place of proper arrangements for reciprocal enforcement between the Island and Scotland and Portugal in particular should, of themselves, solve many of the difficulties encountered by people in Jersey whose partners return to those jurisdictions. The reform has been long awaited, but is greatly to be welcomed.

Richard Whitehead is a barrister. He was Senior Crown Counsel in the Turks and Caicos Islands between 1981 and 1986, Attorney General for Anguilla between 1986 and 1988, and is currently employed as a Legal Adviser in the Law Officers’ Department, Jersey.

Wendy Kinnard is a senator in the States of Jersey and is the president of the Legislation Committee.

[1] The Law is expected to come into force during 2001

[2] This applied to Jersey: the 1953 Law was based on the 1920 Scheme.

[3] For example, the Maintenance Orders (Reciprocal Enforcement) Act 1972 in the United Kingdom

[4] Article 10(1) of the 1953 Law. Nearly all Commonwealth jurisdictions have been designated with the notable exception of Scotland.

[5] United Nations Convention on the Recovery Abroad of Maintenance, 1956, Cmnd 6084, Treaty Series No 85 (1975), Article 1.1

[6] Ibid, Article 6.1

[7] Hague Convention on the Recognition and Enforcement of Maintenance Obligations 1973, Article 1

[8] Ibid, Articles 4, 7 & 8. There are four bases for establishing jurisdiction

[9] Ibid, Article 6