Published: 8 May 2015
(Article first published on Family Law Week)
James Roberts, barrister of 1 King’s Bench Walk, and Catherine Silwal , Senior Solicitor with KJ Smith Solicitors, analyse the law relating to variation of foreign maintenance orders and the effect of the EU Maintenance Regulation (Council Regulation (EC) No 4/2009).
The mere mention of the words "Maintenance Regulation" can cause even the most enthusiastic of family lawyers to experience disquiet because of its reputation for being highly technical, if not, impenetrable. In this article we hope to demystify the EU Maintenance Regulation (Council Regulation (EC) No 4/2009) (the "Maintenance Regulation") and to bring it to life by outlining some scenarios where it comes into play and offering our suggested outcomes to those scenarios.
We make no apology for starting with a detailed description of the genesis of the Regulation because understanding the context of how it came about will, we suggest, assist the family lawyer who has to advise a client whose circumstances are such that the Regulation may come into play.
As the full title of the Maintenance Regulation suggests, its purpose is to assist in the "recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations". In this article we will consider in what circumstances, if any, the English court has jurisdiction to vary a foreign maintenance order and, if so, how such an application should be made, whether the applicant is the maintenance creditor or maintenance debtor.
We shall start by explaining (briefly) the background to how the Maintenance Regulation came about.
The Brussels Convention
In order to understand the current position it is necessary to look at the instruments that preceded the Maintenance Regulation. Jurisdiction to enforce and to vary foreign maintenance orders in certain circumstances arose under the original Brussels legislation, the Convention on Jurisdiction and Judgments in Civil and Commercial Matters signed on 27 September 1968 ("the Brussels Convention"). The United Kingdom was not a signatory to the Brussels Convention but on joining the European Union became (eventually) party to the amended instrument. It was brought into English law by the Civil Jurisdiction and Judgments Act 1982. Maintenance was included within the scope of the Convention but it excluded rights in property arising from a matrimonial relationship.
The Jenard Report, which is the explanatory report on the Brussels Convention, which amongst other things governs maintenance obligations, highlights the fact that the aim behind the Brussels Convention was to break new ground in terms of jurisdiction and enforcement and that, in order to aid effective enforcement, it was felt necessary via rules of jurisdiction to strengthen the role of the court of the State in which a judgment was given. This was because the role of the court that had jurisdiction under the Convention became of prime importance as a result of the provisions of the Brussels Convention, which provided for a court to declare it did not have jurisdiction if the rules of exclusive jurisdiction gave jurisdiction to the courts of another State (Article 19), and the provisions that ensured that the court must declare it has no jurisdiction if the defendant did not enter an appearance or in the absence of proof that the defendant had been able to arrange for his defence (Article 20). It follows from these provisions, Jenard says, that,
"… the intervention of the court in which enforcement is sought is more limited than is usual under enforcement conventions. That court has in practice only two points to examine: public policy and whether the defendant has had the opportunity of defending himself. The other reasons for refusal - conflicting judgments, preliminary questions, review of jurisdiction in relation to certain specific topics – can in fact, be regarded as akin to public policy."
In relation to maintenance, jurisdiction was specifically conferred on the forum (domicile) of the judgment creditor, as a Convention which did not do so would be of "limited value" since the creditor would be obliged to bring the claim before the court having jurisdiction over the defendant and the court of the domicile of the maintenance creditor was thought to be in the best position to know whether the creditor is in need and to be able to determine the extent of such need. In addition, jurisdiction was also to be conferred on the place of habitual residence of the maintenance creditor in order, as an example, to enable a wife who was deserted by her husband to sue for the payment of maintenance in the courts of the place where she was habitually resident rather than to have to go to the place of her legal domicile.
The Jenard Report also dealt with the potential issue of conflicting judgments and looked at the proposal that it should only be the court that had originally fixed the amount of maintenance that should have jurisdiction to vary that order. This idea was not adopted as it would potentially have obliged parties who both had no further connection with that original court to bring proceedings before courts that might be very far away. In addition, the report stated that any judgment of a second court which varied the decision of the first court would have to be based, in any event, on changed facts, and in those circumstances it could not be maintained that such judgments would be in conflict.
On the accession of the UK the Brussels Convention was reviewed and amended. The amended instrument eventually became Council Regulation (EC) No 44/2001 on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters ("Brussels I"). The initial review and proposed modifications prior to the accession to the EU by the UK were the subject of an explanatory report. That report looked at the differing approaches in the original Member States and in the new Accession States to the issues of the setting of the quantum of maintenance and to the issues of enforcement and variation. The Schlosser Report 1979, No C 59 / 72 comments that in relation to the original Member States which were signatories to the Brussels Convention there was a similar legal position pertaining to all of those States; in the case of proceedings for the adjustment of a maintenance order the jurisdiction of the court has to be examined afresh. In looking at the jurisdiction to vary orders in the United Kingdom the report stated that,
"…the Court may revoke or vary maintenance orders, or revive them after they have been revoked or varied. In addition, the court in whose district the applicant is now resident also has jurisdiction in such matters. In principle, the court's discretion is unfettered in such cases, but an application for variation may not be based on facts or evidence which could have been relied on when the original order was made …. A divorce court can vary or discharge an order it has made with regard to maintenance irrespective of whether the original basis for its jurisdiction still exists or not…."
This position was contrasted with the position in the original Member States. In those States the courts of the State of origin lost their competence to adjust maintenance orders within the original scope of the Brussels Convention if the conditions upon which the original jurisdiction was based no longer existed. Thus, in Germany, which the report gives as an example, a foreign maintenance order could be adjusted by a German court provided the latter had jurisdiction. The mechanisms of the Brussels Convention would not be able to operate consistently if the courts of the UK were to continue to be able to claim jurisdiction to adjust decisions irrespective of the continued existence of the facts upon which that original jurisdiction was based. Thus in the amended instrument and in the provisions of Brussels I:
"107. Applications for the adjustment of maintenance claims can only be made in courts with jurisdiction under Article 2 or Article 5 (2), as amended, of the 1968 Convention. For example if the maintenance creditor claims adjustment due to increases in the cost of living, he may choose between the international jurisdiction of the domicile of the maintenance debtor and the local jurisdiction of the place where he himself is domiciled or habitually resident. However, if the maintenance debtor seeks adjustment because of a deterioration in his financial circumstances, he can only apply under the international jurisdiction referred to in Article 2, i.e. the jurisdiction of the domicile of the maintenance creditor, even where the original judgment (pursuant to Article 2 where it is applicable) was given in the State of his own domicile and the parties have retained their places of residence."
It will be readily apparent that much of the above is derived from the explanatory reports and not from the Brussels Convention or its later incarnations as amended. It is, to say the least, unfortunate for the family lawyer that the issue of variation is not made explicit in any of the European Conventions or Regulations. Unfortunately, the Maintenance Regulation itself does not clarify matters and, arguably, in terms of the enforcement of maintenance decisions and the procedure for variation, it actually further complicates matters.
What is required is clarity in terms of the nature of an application for variation. It seems clear that it was always intended that there should be the jurisdiction to vary an order in a State other than the original State, provided that the jurisdictional requirements of the governing jurisdictional provisions are met.
When does the Maintenance Regulation apply?
Although, again, not obvious from an initial reading of the Regulation, it applies to cases in which ANY foreign maintenance order (i.e. not just those from Member States of the EU) was made after the Maintenance Regulation came into force in the UK, which was on 18 June 2011 (Article 75(1)). Article 75(2) states that the transitional provisions will apply to cases where the decision in the Member State preceded the Maintenance Regulation, but where enforcement is sought thereafter.
Step 1: Jurisdiction
Under the principal jurisdictional provisions of Article 3 there are 4 potential limbs under which jurisdiction may be established. It follows from the Schlosser report quoted above that jurisdiction must be established afresh upon the commencement of any application (including any application for variation):
1. Article 3 of the Maintenance Regulations states that jurisdiction will lie with the court:
(a) Where the defendant is habitually resident;
(b) Where the creditor is habitually resident;
(c) Where the application is ancillary to proceedings concerning status, unless that jurisdiction is based solely on the nationality (or, in an English/Irish context, domicile) of one of the parties; or
(d) Where the matter is ancillary to parental responsibility proceedings, unless that jurisdiction is based solely on the nationality (or, in an English/Irish context, domicile) of one of the parties.
A "creditor" is defined in Article 2.10 as someone "to whom maintenance is owed or is alleged to be owed". This term also includes any applicant for an order (see Farrell v Long  1 FLR 559). Article 2.11 also defines the term "debtor" as meaning "any individual who owes or who is alleged to owe maintenance".
An attempt to vary a foreign maintenance order is most likely to take place following divorce proceedings overseas, which means that the applicant for a variation will seek to establish the jurisdictional ground in either category (a) or category (b).
It will be seen that Article 3 does not employ the term "debtor" in Article 3 (a). It uses the term 'defendant". Elsewhere in the Maintenance Regulation, e.g. Article 56, the term "debtor" is used as being the opposite of "creditor". It seems to us therefore that the use of the word "defendant" is quite specific. "Defendant" and "debtor" are not synonymous. The effect of this is that an applicant for a variation who is also a "creditor" can seek a variation in the State in which (we will assume) she is habitually resident under Article 3 (b), and she can also seek a variation under Article 3(a) in the State in which the defendant to the application, the "debtor", is habitually resident. In contrast, if the applicant for a variation is also the "debtor" then on this construction of Article 3 there is only jurisdiction in the State of the "creditor's" habitual residence under both Article 3 (b), as before, and under Article 3 (a). Both mean the same thing in this scenario.
2. Article 4 provides for the parties to be able to choose the Member State which will have jurisdiction, provided that the parties have agreed and previously chosen such a State to have jurisdiction and provided that the chosen State has a sufficient link with the parties or the proceedings in accordance with the menu of grounds set out in the Article. This will be unlikely to apply to the majority of cases, where no such pre-existing agreement will have been made. The Article may become of crucial significance over time.
3. Article 5 provides that, apart from the jurisdiction derived from other provisions of the Regulation, a court of a Member State shall have jurisdiction if the defendant enters an appearance there (provided that the appearance was not entered solely to contest the jurisdiction).
In other words an unwary defendant may very well find himself deprived of any argument as to jurisdiction in circumstances where the applicant has issued proceedings and the defendant has taken part in those proceedings and has failed to raise the jurisdictional question at the earliest opportunity. The caveat in this article means that an appearance to contest jurisdiction will not count as "entering an appearance". But query the position of a defendant who refuses to concede jurisdiction but continues nevertheless to meet the requirements of the applicant's application, such as filing required court documentation.
4. Article 6 provides for jurisdiction arising from "subsidiary jurisdiction" where no other Member State or Lugano Convention state has jurisdiction AND where both clients have the nationality (or domicile) of such a Member State.
5. Article 7 provides the final option for establishing jurisdiction: on the basis of forum necessitatis. This would have to be something quite extreme, like, for example, a civil war taking place in the State where the original judgment was given.
Step 2: Establishing that the court has the power to vary a decision given in another Member State
The Maintenance Regulation, and in particular Article 3, does not explicitly provide a basis for the variation of an existing decision. There is no provision headed "variation" in the Regulation. Article 42 of the Maintenance Regulation states that there shall be "no review as to substance in the Member State in which recognition, enforceability or enforcement is sought". On the other hand, variation is not the same as review and the Regulation does specifically use the word "modification".
A careful reading of the rest of the Maintenance Regulation together with the extracts set out above from the Jenard and Schlosser explanatory reports clearly indicates that it is was always intended that the variation of a foreign order would be permissible. For example:
1. The only specifically limiting provision in relation to "modification" in Article 8(1) states that (subject to some limited exceptions) "proceedings to modify the decision….cannot be brought by the debtor in any other Member State as long as the creditor remains habitually resident in the State in which the decision was given". The corollary of this must be that proceedings to "modify the decision" can be brought by the debtor in a State other than that in which the decision was given if the creditor is no longer habitually resident in the State in which the original decision was given. Further, the Article is only limiting in terms of the proceedings a debtor can bring. It is not limiting of proceedings a creditor can bring. Note, again, that "modification" is not the same word as "review", which is used in Article 42 in dealing with an original order.
2. Article 21(2), paragraph 3 (for Hague Protocol countries), and in similar wording Article 24(d), paragraph 2 (for non-Hague protocol countries and for cases in which the transitional provisions apply), deal with the circumstances where, upon application by the debtor to refuse enforcement, the court in the Member State of enforcement may refuse to enforce in whole or in part a decision of the court of origin, if it would be irreconcilable with a decision given in that State or in another Member State or in a third State where that first decision itself would fulfil the conditions necessary for enforcement. The Article goes on to provide that a decision which has the effect of modifying an earlier decision on maintenance on the basis of changed circumstances shall not, for these purposes, be considered to be irreconcilable. Again, it is clearly envisaged that there can be an application for variation because the Regulation refers to later decisions in Member States which are not "irreconcilable" if the circumstances have changed since the earlier decision.
3. Article 56(1) of Chapter VII (which is headed "Cooperation Between Central Authorities") sets out the available applications for a creditor seeking to recover maintenance, while Article 56(2) deals with applications by a debtor. Article 56(1)(e) and (f) and Article 56(2)(b) and (c) relate to applications to "modify" a decision from another Member State. This is unambiguous. Clearly, it is possible for there to be applications for "modification" by either a creditor or a debtor in a different Member State from that in which the decision was originally given. However, the procedure under Chapter VII is, in effect, a procedure for transmission of an application from a requesting Central Authority to a requested Central Authority. Applications under Chapter VII "shall" be made via the Central Authority (per Article 55) and "shall" be made using the specific Forms in Annex VI or Annex VII.
Prior to 22 April 2014 and the creation of the single family court, the Family Procedure Rules 2010 at Rule 9.22 (3) (which allowed the court to consider Article 11, which provides for the court not to proceed without it being clear that the defendant has had time to prepare a defence to the application to enforce), and indeed the Civil Jurisdiction and Judgements (Maintenance) Regulations 2011 and the other secondary legislation consequential upon the coming into force of the Maintenance Regulation, specifically removed the traditional power of the Magistrates Court to vary an order that was sought to be enforced, or to remit arrears, by, in the former case, providing that the Rule did not apply to variations, and in the latter case, removing the power to vary or remit on an application to enforce. The snappily entitled Magistrates' Courts (Enforcement or Variation of Orders made in Family Proceedings and Miscellaneous Provisions) Rules 2011 Magistrates Rules, Part 7, section 71(2) specifically adds the words "the variation" to Rule 9.22(1) of the Family Procedure Rules 2010. The purpose of Part 7 of these Magistrates Rules is to deal with an application for variation under the Maintenance Regulation and other European instruments.
Step 3: How should an application to vary be made?
Article 57 of the Maintenance Regulation states that any application under Article 56, which we have already shown would include an application to vary an order made in another Member State or another State, shall be made in the prescribed form set out at Annexes VI or VII to the Maintenance Regulation.
This format is mandatory. It involves the transmission of a standard application through the Lord Chancellor (in fact REMO), who is the Central Authority for England and Wales to the Central Authority of the other relevant country, i.e. the country where the defendant resides. This is set out in Article 58 of the Regulation.
In the recent case of EDG v RR  EWHC 816 (Fam) Mr Justice Mostyn was dealing with the enforcement in this country of an order made in France. He examined the procedural requirements surrounding applications in this country to enforce such a foreign order. He considered that there were, for the purposes of enforcement, two alternative routes under the Maintenance Regulation. The first was under Chapter IV and is a route of direct enforcement. The direct enforcement route is set out in Article 41 which provides that a decision given in one Member State which is enforceable in another Member State shall be enforced there under the same conditions as a decision given in the Member State of enforcement and that the procedure for the enforcement of decisions given in another Member State shall be governed by the law of the Member State of enforcement. He considered that if this route is employed then, by virtue of Article 41, the foreign order is to be treated as if it is a domestic order. There was no requirement for any special or additional procedural steps to be taken on an application for enforcement of a foreign order. He was fortified in this (it is submitted, correct view) by the wording of Article 17 which states that a decision given in a Member State bound by the 2007 Hague Protocol shall be recognised in another Member State without any special procedure being required and without any possibility of opposing its recognition.
The second route available is an application under Chapter VII, which is the transmission via Central Authority route set out above. Chapter VII, as we have set out, also includes applications to "modify".
Mostyn J expresses the view that specific procedural regulations in the context of a Chapter IV application are otiose. Further, the provisions that Parliament has (unnecessarily) made in the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, which require the transmission, seemingly of a Chapter IV application (as opposed to a Chapter VII one) to the Magistrate's Court via REMO contain a mistake in that it could never have been intended by Parliament to limit Chapter IV enforcement in this way.
In his judgment, Mostyn J takes the view that a simple application to enforce could have been made to the Principal Registry (as it then was) under Chapter IV, rather than through the Central Authorities of both countries (the Lord Chancellor and REMO for England and Wales)(as under Chapter VII). He reasons that, given that the aim of the Maintenance Regulation is supposedly to assist in the automatic recognition of foreign judgments in other Member States, the applicant creditor should be able to apply for enforcement in the county court or High Court, as she would have done with an original order made in England and Wales (and the foreign order should be treated as such), without it being transferred to the Magistrates. The judgment calls for the Ministry of Justice to look at the Regulations to ensure that they provide for any enforcement which takes place via the Lord Chancellor to be by way of transmission to the new single Family Court. It does, in fact, seem that the legislation implementing the single Family Court has provided for the applications to be dealt with by the single Family Court by the replacement of "magistrate's court" with "the family court" by reason of the amendment brought in by the Crime and Courts Act 2013 (Family Court: Consequential Provision) (No 2) Order 2014. Thus it seems that, whatever the history may have been under the Rules, there is now the ability to enforce an order either under Chapter IV or under Chapter VII and that the enforcement procedures of what was the County Court under the Family Procedure Rules 2010 are available to all those seeking to enforce by whatever route.
In terms of how one actually makes the application, though, it seems that the view still prevails within the Ministry of Justice that all applications for enforcement should be via REMO. Given that "modification" in Article 56 also appears alongside enforcement as one of the available applications under the reciprocal procedure it would seem that variation applications may suffer the same impediment. What then is the procedure for varying an order? On one view, if the foreign order is directly enforceable in this jurisdiction, then there seems to be no logical reason why that order should not also be capable of variation as an Order of the Family Court, provided always that there is jurisdiction under the Maintenance Regulation and that under UK law there is the jurisdiction to make an order. It seems to be a completely unnecessary step to have to make an application to REMO in this jurisdiction which is in fact then sent by them to the Family Court to deal with, even if an application to vary may only be made under Chapter VII of the Maintenance Regulation. Mostyn J does not go any further than this in his judgment, which deals only with the subject of enforcement.
In order to consider the subject of variation, we turn now to the most recent case concerning the Maintenance Regulation, which is Sir Peter Singer's judgment in AB v JJB (EU Maintenance Regulation: modification application procedure)  EWHC 192 (Fam). In that judgment, Sir Peter Singer deals specifically with the subject of variation, as opposed to just enforcement. He notes that there is no mention of modification or variation under Chapter IV. Chapter VII, on the other hand(Article 57),mandates that the application under Article 56 (of Chapter VII) shall be in the form set out in Annex VI or VII. These annexes also refer to "modification" in their title. Part A of these forms is to be completed by the Central Authority of the requesting State. Thus Sir Peter Singer concludes that (i) all application for variation must be made using Chapter VII, not Chapter IV, and (ii) that there is therefore "no permissible short-circuit option by application direct…".In fact, he implies that it is unlikely that even an application for enforcement could be done without the involvement of REMO/the Lord Chancellor.
He places great importance on the secondary legislation supporting the introduction of the Maintenance Regulation into domestic law. The relevant legislation is the twice amended Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, SI 2011/1484 ("the CJJ(M)R"). He notes that paragraphs 4 and 6 of Schedule 1 refer to enforcement under Chapter IV, whereas paragraph 11 in Part 5 refers to "modification" and Article 56 (i.e. Chapter VII only) of the Maintenance Regulation. The subject of variation is not, he notes, even mentioned in Part 34 of the Family Procedure Rules 2010, which is, he says, another reason to conclude that the only available route for variation is via Chapter VII.
In paragraph 26 of his judgment, Sir Peter Singer states that the REMO unit told the applicant husband's solicitors that his application could either (i) be made to the German Central Authority, which would forward it to REMO, which in turn would forward it to the appropriate court (i.e. the Chapter VII method), or (ii) be made direct to the domestic court. The representative of the REMO unit said that this latter course was provided for by the Maintenance Regulation, but suffered the disadvantage that the UK courts had no process in place to facilitate such a direct application, i.e. not via REMO. Sir Peter Singer disagrees. In this case, the applicant opted for option (ii) and his application was dismissed on jurisdictional grounds. Sir Peter Singer insists that the only method available for variation applications is via Chapter VII.
What he does not need to consider in this part of his judgment, though, is Article 55, which states that the requesting State should be the one where the applicant resides. If the application had instead been made by the creditor wife in this case (who was resident in England) how could she have made the application to the German Central Authority (being the requesting State), so that they could then send it to England (as the requested State and on the basis that the application is heard in the requested state, as per Article 56(4), providing there is jurisdiction there)? On the other hand, for herto be forced to litigate in Germany would be unnecessarily onerous and, above, all costly. Again, one wonders how this can reflect the aims of the Maintenance Regulation, which were supposedly to aid direct enforcement. On Sir Peter Singer's view, even an application for enforcement should be made via REMO, which still adds a layer of complication and expense.
Step 4: In which country should an application to vary be made and heard?
Article 55 of the Regulation states that an application shall be made "through the Central Authority of the Member State in which the applicant resides to the Central Authority of the requested Member State." A maintenance creditor living in the UK would have the choice of beginning an application to vary via this procedure or alternatively beginning an application directly in the relevant court of the Member State in which the defendant is habitually resident (Under Article 3(a)).
Article 56(4) provides as follows:
"Save as otherwise provided in this Regulation, the applications referred to in paragraphs 1 and 2 shall be determined under the law of the requested Member State and shall be subject to the rules of jurisdiction applicable in that Member State."
A requested Member State is one that receives an application through its Central Authority (see the definitions section of the Regulation).
Let us imagine the following four scenarios:
(i) W had a maintenance order made in her favour in France. W now lives in England but H still resides in France;
(ii) As above, but H has now left France and returned to England, so that both parties now reside in England;
(iii) As above, but H has moved to Germany and left France. W resides in England;
(iv) W has remained in France, but H has returned to England.
In each case we will consider an application by W to vary maintenance upwards and an application by H to vary maintenance downwards.
Scenario (i) – Application by W
W is the maintenance creditor and so the English court has jurisdiction under Article 3(b) of the Maintenance Regulation. Article 55 provides for an application "under this Chapter" (i.e. Chapter VII) to be made through the Central Authority in the Member State in which the Applicant resides, which is the UK. Article 56(4) provides that the application shall be determined under the law of the requested Member State and shall be subject to the rules of jurisdiction in that Member State. France is the requested Member State. The application would be transmitted to the French Central Authority and would be dealt with there. Article 3(a) gives jurisdiction in the place where the defendant is habitually resident. If H still lives in France, then the application would be transferred there and dealt with there. This seems uncontroversial. But what if W wishes to have the application dealt with here?
Potentially, it is submitted, W could apply for a variation of the French Order in this jurisdiction on the basis of directly applicable law. The French Order, borrowing Mr. Justice Mostyn's argument, based upon Articles 41 and 17, is directly enforceable here and should be treated as though it were an Order of the Family Court, provided that there is domestic jurisdiction. Such jurisdiction could either be under Part III of the Matrimonial and Family Proceedings Act 1984 or under Schedule 1 of the Children Act 1989. The jurisdictional gateway under Part III is the same as the requirements of Article 3 of the Maintenance Regulation. The Maintenance Regulation also provides the jurisdictional basis of applications under Schedule 1 to the Children Act 1989 (see O v P (Jurisdiction under Children Act 1989 Sch. 1)  EWHC 2425 (Fam),  1 FLR 329). The Magistrates' Courts (Enforcement or Variation of Orders Made in Family Proceedings and Miscellaneous Provisions) Rules 2011, by Rule 71, apply the FPR 2010 to an application to vary a maintenance order in relation to which the court has jurisdiction under the Maintenance Regulation and where the Respondent is outside the jurisdiction, by amending FPR 2010 Rule 9.22 (1) by inserting the words "the variation or" into the rule (as set out above). The Rule provides that, on an application for a variation where the respondent does not enter an appearance and is not represented, the court will apply Article 11 (adequate time to prepare a defence) and will take into account any written representations made and any evidence given by the Respondent. Employing this route then, it seems to follow that an application would have to be in accordance with the requirements of the domestic statute, including an application for leave under Part III, MFPA 1984. An alternative jurisdictional basis might be under Article 56 itself as founding the power to make a substantive order. The Rules provide that where an application is made under Article 56 of the Maintenance Regulation then the Form at Annex VII is to be used rather than Form A (FPR 2010 Rule 9.3(3)). This would be going beyond what Mostyn J considered, as he was only dealing with the subject of enforcement. Certainly, in the view of Sir Peter Singer, what we have suggested above would not be permissible, but one cannot help but wonder if this is not a more sensible route, in line with the stated aims of greater EU legal integration.
If it is thought that the Maintenance Regulation Part VII procedure is the only procedure by which modification can be secured (which seems to be the current view of the Ministry of Justice) then there seems no reason why it would not be possible to comply with the procedure by making application to the French Central Authority, as the requesting authority, for the transmission of the French Order to the Lord Chancellor, being the requested Central Authority, in order for that Order to be recognised here and thereafter to be varied once transmitted here. Could there be a problem here, though, in that the requesting State would not be the one where the Applicant resides under Article 55?
Scenario (i) – Application by H
H would need to make his application through the Central Authority where he resides (i.e. France, under Article 55) to the Central Authority in the UK. The UK would be both the requested Member State and the place where jurisdiction would lie under Article 3(a) or (b) as the place where the creditor (W) and the defendant (W) is habitually resident. This is consistent with the aim of allowing the debtor to litigate only where the creditor is habitually resident.
Scenario (ii) – Application by W
If W is resident in the UK then either she would employ the directly applicable law method set out above or, if she has to make an application under Chapter VII, she could probably go through the French Central authority for transmission to the UK of the French Order for modification under the Annex VII procedure. In fact, an application through the UK Central Authority would produce the same result as it is unlikely that there is any jurisdiction in France, meaning that the requested state could not retain jurisdiction. France would not be the appropriate jurisdiction under either Article 3 (a) or (b) if everyone resides in England. There may also no longer be jurisdiction in France under Article 3 (c) or (d) but there is jurisdiction in the UK under Article 3(a) and (b). It would seem that the Annex VII Form itself would be a sufficient basis for the variation procedure but, again, there would need to be domestic jurisdiction (unless Article 56 itself provides that).
Scenario (ii) – Application by H
In this situation H is not the defendant and so Article 3(a) becomes irrelevant in relation to him. As before, any application by H will be made to the UK. It is believed that such an application under the Chapter VII procedure could be to France with transmission to the UK for modification in the Form at Annex VII (but H would risk falling foul of Article 55 and so this is unlikely to succeed), or to the UK for transmission to France but with the UK retaining jurisdiction because France would no longer have it. Alternatively, if the directly applicable law method is permissible, he could make application based upon the French Order being effectively a domestic order without the necessity of using the Part VII procedure. Again, jurisdiction here in the UK would be based upon both Article 3(a) and (b).
Scenario (iii) – Application by W
If H had moved to Germany, that could then become the requested Member State, rather than France. Germany would potentially have jurisdiction on the basis of Article 3(a) (being where the defendant is habitually resident). The application would be determined under the law of the requested State and be subject to the rules of jurisdiction of that State (Article 56(4)). As in our other examples, W may be able to apply to Germany to transmit the application to the UK, which would then have jurisdiction under Article 3 (b) and on the basis that it would be the requested State (as per Article 56(4)), but, again, W would risk falling foul of Article 55.
Scenario (iii) – Application by H
If H is the applicant then he cannot rely upon Article 3 at all in relation to his own residence, as he is neither the creditor nor the defendant and Germany is unlikely to have jurisdiction based upon Article 3 (c) or 3(d). The UK is likely to be the only appropriate forum. H would make his application through the German Central Authorities to the UK, which would be the requested State and have jurisdiction in relation to W under both Article 3 (a) and (b).
Scenario (iv) – Application by W
W's application could be made in France based upon her continuing habitual residence there. Jurisdiction could also lie in the UK where H, the defendant, is habitually resident. W would seek transmission of the Order for recognition and modification via the French Central Authority to the UK Central Authority under the Chapter VII procedure in Form Annex VII. She may also be able to make an application to the UK Central Authority for the case to be transferred to France, but, again, note the rule in Article 55.
Scenario (iv) – Application by H
H's application would be made through the Central Authority in the UK to France under the Chapter VII procedure. The restriction under Article 8(1) also applies here, so that the "debtor" cannot apply for the case to be heard anywhere other than where the decision was given if the creditor remains habitually resident there.
The above scenarios are set out on the basis that the court of no Member State has jurisdiction decided on the basis of Articles 4, 5, 6 or 7.
What does other recent case-law on this subject tell us?
The earlier case of EA v AP  EWHC 2344 (Fam) is interesting because Mrs Justice Parker forms the firm view that the Maintenance Regulation is designed to assist the maintenance creditor. In that case the wife's Schedule 1 CA 1989 claim was stayed pending the hearing of an appeal in Italy as to whether the Italian court had jurisdiction in respect of child maintenance matters. Her Ladyship was reluctant to recognise the first instance decision in Italy (that the English courts have jurisdiction in respect of child maintenance) pending the appeal because of the risk of there then being "irreconcilable judgments" (see Article 12 of the Maintenance Regulation).
It is clear from considering both the Maintenance Regulation itself and other legislation that variation of a foreign maintenance order was clearly envisaged. It is clear that this is likely to be limited to cases where a change of circumstances can be shown (as was also the case under the Brussels Convention). It is therefore likely that any revised award is likely to be based, as a starting point, on the quantum of the foreign order.
The procedural routes for variation are unclear. There is indeed an attraction to the argument for automatic recognition on the basis of directly applicable law but such application may be vulnerable to challenge and appeal. In circumstances where the creditor is habitually resident here and she wishes to vary here then it may be that the route that fits with the Maintenance Regulation is the route which deploys a request to France to transmit to the UK the French Order for modification here (on the basis that the application is heard in the requested State, as per Article 56(4)). The problem, as we have set out, is that Article 55 of the Maintenance Regulation sets out that the requesting State shall be the one where the applicant is resident. We can only conclude that this must be an error. For it to be otherwise, would fly in the face of the aim set out in the Jenard/Schlosser Reports, which is that the country of residence of the maintenance creditor is best placed to decide what her needs may then be. Equally, if the aim is also to reduce the cost of litigation for the applicant creditor, then it cannot be that she should need to return to another Member State, where she no longer resides, to litigate.