S.I. No. 594/2019 - European Union (Hague Maintenance Convention) Regulations 2019

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 3rd December, 2019.

Regulation

CONTENTS

I, CHARLES FLANAGAN, Minister for Justice and Equality, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance approved on behalf of the European Union by Council Decision 2011/432/EU of 9 June 2011¹ , make the following Regulations:

Citation

1. These Regulations may be cited as the European Union (Hague Maintenance Convention) Regulations 2019.

Interpretation

2. (1) In these Regulations -

“Convention” means the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance done at The Hague on 23 November 2007;

“decision” means -

(a) a decision within the meaning of Article 19, and

(b) a maintenance arrangement within the meaning of Article 3(e);

“declaration of enforceability” has the meaning assigned to it by Regulation 12(4) and a reference to a declaration of enforceability includes a reference to such a declaration as made or varied -

(a) on appeal from a determination of the Master under that Regulation, or

(b) on appeal from a decision of the High Court on such an appeal;

“enforceable maintenance order” shall be construed in accordance with Regulation 14(1);

“maintenance creditor” means, in relation to a decision, the person entitled to the payments for which the decision provides;

“maintenance debtor” means, in relation to a decision, the person who is liable to make a payment under the decision;

“Minister” means the Minister for Justice and Equality;

“recognition order” has the meaning assigned to it by Regulation 12(3) and a reference to a recognition order shall include a reference to such an order as made or varied -

(a) on appeal from a determination of the Master under that Regulation, or

(b) on appeal from a decision of the High Court on such an appeal;

“relevant district court clerk” shall be construed in accordance with Regulation 3(3);

“requesting Central Authority” means a Central Authority in a state bound by the Convention;

“state bound by the Convention” means a state, other than the State, in respect of which the Convention has entered into force in accordance with Article 60 and a reference to such a state shall be taken to include a reference to any territorial unit of that state in respect of which that state has made a declaration, pursuant to Article 61(1), that the Convention shall extend to that territorial unit.

(2) References in these Regulations to numbered Articles without qualification are references to the Articles so numbered of the Convention.

(3) Unless provided otherwise, a word or expression used in these Regulations and in the Convention has the same meaning in these Regulations as it has in the Convention.

District Court and district court clerk

3. (1) The jurisdiction vested in the District Court by these Regulations may be exercised by the judge of that Court for the time being assigned to -

(a) where the maintenance debtor resides in the State, the district court district in which the debtor resides or carries on any profession, business or occupation, or

(b) where the maintenance debtor does not reside in the State but is employed by a person residing or having a place of business in the State or by a body whose seat of management or control is in the State, the district court district in which the person resides or the body has its seat.

(2) For the purposes of these Regulations the Dublin Metropolitan District is deemed to be a district court area.

(3) In these Regulations, a reference to a relevant district court clerk shall be construed -

(a) where the maintenance debtor resides in the State, as a reference to a district court clerk for the district court area in which the debtor resides or carries on any profession, business or occupation, or

(b) where the maintenance debtor does not reside in the State but is employed by a person residing or having a place of business in the State or by a body whose seat of management or control is in the State, as a reference to a district court clerk for the district court area in which the person resides or the body has its seat.

Convention to have force of law

4. The Convention has the force of law in the State and judicial notice shall be taken of it.

Interpretation of Convention

5. (1) Judicial notice shall be taken of any judgments, concerning the Convention, delivered by courts of states bound by the Convention and a court shall, when interpreting and applying the Convention, take due account of the principles laid down by those judgments.

(2) Judicial notice shall be taken of the explanatory report prepared by Alegría Borrás and Jennifer Degeling on the Convention and that report may be considered by any court when interpreting the meaning of the Convention and shall be given such weight as is appropriate in the circumstances.

States bound by the Convention and declarations, reservations and denunciations under Convention

6. (1) The Minister may, by order declare -

(a) that a state specified in the order is a state bound by the Convention, or

(b) that -

(i) a declaration (the text of which shall be set out in the order), referred to in Article 2, 11, 16, 24, 30, 44, 59 or 61, has been made in accordance with Article 63,

(ii) a modification or withdrawal of a declaration (the text of which shall be set out in the order) has been made pursuant to Article 63,

(iii) a reservation (the text of which shall be set out in the order), referred to in Article 2, 20, 30, 44 or 55, has been made in accordance with Article 62,

(iv) a withdrawal of a reservation (the text of which shall be set out in the order) has been made pursuant to Article 62, or

(v) a denunciation (the text of which shall be set out in the order) has been made pursuant to Article 64,

to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

(2) An order that is in force under paragraph (1) shall be evidence -

(a) as respects any declaration by the Minister in that order under subparagraph (a) of that paragraph, that any state to which the declaration relates is a state bound by the Convention, and

(b) as respects any declaration by the Minister in that order under subparagraph (b) of that paragraph, that the declaration, reservation, modification, withdrawal or denunciation, as the case may be, was made and of its contents.

Designation of Central Authority

7. The Minister is designated as the Central Authority for the State for the purposes of the Convention and these Regulations.

Application under Article 10 to Central Authority

8. Where an application referred to in Article 10 is made by a requesting Central Authority to the Central Authority, the Central Authority shall, on behalf of the applicant, take any action which is required to be taken by it under the Convention and, in that context, references in the Convention to the applicant, the party or other analogous terms shall be construed, where appropriate, as references to the Central Authority.

Application to Central Authority for recognition or recognition and enforcement of decision given in a state bound by Convention

9. (1) Without prejudice to the generality of Regulation 8, the Central Authority shall send an application to the Master of the High Court for determination in accordance with Regulation 12 where -

(a) the application is -

(i) received from a requesting Central Authority, and

(ii) in accordance with Article 10(1)(a), for the recognition or for the recognition and enforcement of a decision made in a state bound by the Convention,

and

(b) it is satisfied the requirements of Article 25, Article 30 (in so far as the decision referred to in paragraph (a)(ii) is a decision which is a maintenance arrangement) and, where applicable, Article 26, have been complied with in respect of that application.

(2) The Central Authority shall, as soon as practicable after the making of a determination by the Master of the High Court under Regulation 12 in respect of an application referred to in paragraph (1), send the following to the requesting Central Authority:

(a) the determination of the Master of the High Court and a copy of the recognition order or declaration of enforceability made (if any), and

(b) a statement of Article 23(5), (6), (7) and (8).

(3) The Central Authority shall send a copy of a declaration of enforceability to the relevant district court clerk for the purposes of enforcement under Regulation 14 on being notified -

(a) that either -

(i) the Master has determined an application for the recognition and enforcement of a decision under Regulation 12 by making a declaration of enforceability and no appeal has been made in respect of that determination within the time allowed for an appeal under Article 23(6), or

(ii) where an appeal against a determination referred in paragraph (a) has been made, that the determination has been upheld,

and

(b) that the Master of the High Court has not made an order under Regulation 12(10).

Application to Central Authority for enforcement of decision recognised in the State

10. (1) Without prejudice to the generality of Regulation 8, and subject to paragraph (2), the Central Authority shall send an application and the documents referred to in Article 25 and, where applicable, Article 30 to the relevant district court clerk where -

(a) the application is -

(i) received from a requesting Central Authority, and

(ii) in accordance with Article 10(1)(b), for the enforcement of a decision which is the subject of a recognition order in force in the State at the date of application,

and

(b) it is satisfied the requirements of Article 25, Article 30 (in so far as the decision referred to in paragraph (a)(ii) is a decision which is a maintenance arrangement) and, where applicable, Article 26, have been complied with in respect of that application.

(2) The Central Authority may bring an application under paragraph (11) of Regulation 12 to the Master of the High Court for an order under paragraph (12) of that Regulation where -

(a) the District Court does not have jurisdiction under Regulation 14 to enforce a decision which is the subject of a recognition order referred to in paragraph (1), and

(b) the maintenance debtor has assets in the State.

Application directly to Master of High Court or District Court (Article 19(5))

11. For the purposes of Article 19(5), an application shall, in accordance with rules of court, be made -

(a) for the recognition or the recognition and enforcement of a decision made in a state bound by the Convention, to the Master of the High Court, and

(b) where no order has been made by the Master of the High Court under Regulation 12(10), for the enforcement of an enforceable maintenance order where -

(i) the decision, which is the subject of the order, relates to the payment of a lump sum (whether payable with a periodic payment or not) or where the District Court does not have jurisdiction under Regulation 14 to enforce the order and the maintenance debtor has assets in the State, to the Master of the High Court under Regulation 12(11), or

(ii) the District Court has jurisdiction under Regulation 14, to the District Court.

Determination by Master of High Court of application for recognition or recognition and enforcement of decision given in a state bound by the Convention

12. (1) The Master of the High Court shall, in accordance with the Convention, determine an application for the recognition or the recognition and enforcement of a decision made in a state bound by the Convention -

(a) sent by the Central Authority to the Master under Regulation 9(1), or

(b) made to the Master under Regulation 11(1)(a).

(2) An application referred to in paragraph (1) shall be determined by the Master of the High Court in private.

(3) Subject to paragraphs (5) and (6), where the application under paragraph (1) is for the recognition of a decision, the Master of the High Court shall by order (in these Regulations referred to as a “recognition order”) recognise the decision.

(4) Subject to paragraphs (5) and (7), where the application under paragraph (1) is for the recognition and enforcement of a decision, the Master of the High Court shall make a declaration (in these Regulations referred to as “a declaration of enforceability”) recognising the decision and declaring the decision enforceable.

(5) The Master of the High Court may refuse to make a recognition order or a declaration of enforceability on the ground set out in Article 22(a).

(6) A recognition order may provide for the recognition of all or part of the decision concerned.

(7) A declaration of enforceability may provide for the recognition and enforceability of all or part of the decision concerned.

(8) Where in accordance with the law of the state bound by the Convention, interest on a sum of money payable under a decision which is the subject of an application under paragraph (1) is recoverable under the decision at a particular rate or rates and from a particular date or time, the person liable under that decision to pay the sum of money shall also be liable to pay the interest in accordance with the particulars noted in the recognition order or declaration of enforceability, as the case may be, and the interest shall be recoverable as though it were part of the sum.

(9) Interest shall be payable on a sum payable under a decision referred to in paragraph (8) only as provided for in that paragraph.

(10) Where -

(a) the Master of the High Court makes a declaration of enforceability in relation to a decision or part of a decision, and

(b) the decision, to the extent it is the subject of the declaration, relates to a lump sum (whether that sum is payable with a periodic payment or not) which is payable but not paid before that declaration was made,

the Master shall, at the same time as making the declaration, by order declare the decision, to the extent it is the subject of that declaration, to be of the same force and effect as a judgment of the High Court which may be enforced by the High Court and proceedings taken on it as if it were a judgment of that Court.

(11) For the purposes of enforcing an enforceable maintenance order, the Central Authority, or an applicant under Regulation 11(b)(i), shall apply to the Master of the High Court for an order under paragraph (12) where -

(a) the decision, which is the subject of the enforceable maintenance order, relates to the payment of a lump sum (whether payable with a periodic payment or not), or

(b) the District Court does not have jurisdiction under Regulation 14 to enforce that enforceable maintenance order and the maintenance debtor has assets in the State.

(12) On application to him or her under paragraph (11), the Master of the High Court shall, subject to paragraph (13), by order, declare the decision, to the extent that it is the subject of the enforceable maintenance order concerned, and to the extent the decision relates to -

(a) a sum payable under that decision as a periodic payment but not paid before the enforceable maintenance order was made,

(b) a lump sum (not being a sum referred to in paragraph (a)) which is payable under the decision but not paid before the enforceable maintenance order was made,

to be of the same force and effect as a judgement of the High Court and such a decision, to the extent it is the subject of that enforceable maintenance order, may be enforced by the High Court and proceedings taken on it as if it were a judgment of that Court.

(13) The Master of the High Court shall not make an order under paragraph (12) in relation to an application referred to in paragraph (11)(b) unless he or she is satisfied that the maintenance debtor has assets in the State.

(14) Where the Master of the High Court makes a determination on an application referred to in paragraph (1)(a), he or she shall cause the determination and a copy of a recognition order or declaration of enforceability (if any), made by him or her under this Regulation to be sent to the Central Authority as soon as practicable after the making of the determination.

(15) Where the Master of the High Court makes, or refuses to make, a recognition order or a declaration of enforceability under this Regulation, he or she shall cause notice of its making or of such refusal to be served on the maintenance debtor and where the application is one referred to in paragraph (1)(b), the maintenance creditor, and that notice shall include a statement of Article 23(5), (6), (7) and (8).

(16) Service of a notice under paragraph (15) may be effected -

(a) personally, or

(b) in any manner in which service of a superior court document within the meaning of section 23 of the Courts Act 1971 may be effected in accordance with that section of that Act.

(17) Where a recognition order or declaration of enforceability is made on application under paragraph (1)(b), the Master of the High Court may provide for the payment to the applicant by the maintenance debtor of the reasonable costs of or incidental to that application.

(18) A person required to pay costs under paragraph (17) shall be liable to pay interest on the costs as if the costs were the subject of an order for the payment of costs made by the High Court on the date on which the recognition order or declaration of enforceability, as the case may be, was made.

Appeal on point of law to Court of Appeal

13. Where a determination of the Master of the High Court to make, or refuse to make, a recognition order or a declaration of enforceability under Regulation 12 has been appealed to the High Court, an appeal shall, by leave of the High Court, lie from a decision of that Court on a point of law to the Court of Appeal.

Enforcement in District Court of recognition order or declaration of enforceability

14. (1) In this Regulation, “enforceable maintenance order” means -

(a) a recognition order, or

(b) a declaration of enforceability.

(2) Subject to paragraph (3), the District Court has jurisdiction to enforce an enforceable maintenance order where -

(a) the maintenance debtor resides in the State, or

(b) he or she does not reside in the State but is employed by a person residing or having a place of business in the State or by a body whose seat of management or control is in the State.

(3) Paragraph (2) does not apply to an enforceable maintenance order -

(a) which is a declaration of enforceability in respect of which the Master of the High Court has made an order under Regulation 12(10), or

(b) to which Regulation 12(11)(a) applies.

(4) Where the District Court has jurisdiction to enforce an enforceable maintenance order that order shall be deemed to be an order, made on the date of the decision to which the enforceable maintenance order relates, of the District Court under section 5, 5A, 5B or 5C of the Act of 1976 as may be appropriate for the purposes of exercising that jurisdiction and an order for the purposes of -

(a) section 98(1) of the Defence Act 1954 (No. 18 of 1954), and

(b) subject to the Convention, the variation or discharge of that order under section 6 of the Act of 1976.

(5) The District Court has jurisdiction under this Regulation notwithstanding that an amount payable under an enforceable maintenance order exceeds the maximum amount the District Court has jurisdiction to award under an enactment referred to in paragraph (4).

(6) For the purposes of these Regulations, where paragraph (4) applies, in addition to any sum payable under an order under section 5, 5A, 5B or 5C of the Act of 1976, there shall also be payable under the order -

(a) any sum payable (including interest as referred to in Regulation 12(8)) under a decision, to the extent to which the decision is the subject of an enforceable maintenance order, and

(b) to the extent to which that sum is not paid before the making of the enforceable maintenance order.

(7) Notwithstanding anything to the contrary in a decision which is the subject of an enforceable maintenance order, the maintenance debtor shall pay any sum payable referred to in paragraph (6), to the relevant district court clerk for transmission to the maintenance creditor or, if a public authority in a state bound by the Convention has been authorised by the maintenance creditor to receive the sum, to the public authority.

(8) Where any sum payable referred to in paragraph (7) is not duly paid -

(a) the Central Authority may apply, in writing, to the relevant district court clerk for the issue of a summons under section 8 (1) of the Act of 1940, or

(b) the Central Authority may, in writing, request the relevant district court clerk concerned to make an application to the District Court respecting that sum under section 10 of the Act of 1976.

(9) For the purposes of paragraph (8)(a), a reference to an applicant in section 8(1) of the Act of 1940 shall be construed as including a reference to the relevant district court clerk.

(10) Nothing in this Regulation shall affect the right of a maintenance creditor under an enforceable maintenance order to institute proceedings for the recovery of a sum payable to a relevant district court clerk under paragraph (7).

(11) In this Regulation -

“Act of 1940” means the Enforcement of Court Orders Act 1940 (No. 23 of 1940);

“Act of 1976” means the Family Law (Maintenance of Spouses and Children) Act 1976 (No. 11 of 1976).

Requests for appropriate measures for purposes referred to in Article 6(2)(i)

15. (1) The Central Authority shall make an application to the High Court requesting any appropriate measures for the purposes referred to in Article 6(2)(i) where -

(a) an application has been made to it under Article 10 and the Authority receives a request for such measures from a requesting Central Authority and is satisfied the request comes within the scope of the Convention, or

(b) the Authority receives a request in accordance with Article 7(1) for the taking of such measures from a requesting Central Authority.

(2) The Central Authority may make an application to the High Court requesting any appropriate measures for the purposes referred to in Article 6(2)(i) where the Authority receives a request in accordance with Article 7(2) for the taking of such measures for those purposes from a requesting Central Authority.

(3) The High Court may, on application to it under paragraph (1) or (2) direct the taking of such appropriate measures as it considers necessary having regard to the Convention if the Court would have power to do so in proceedings, other than in an application under this Regulation, that are within its jurisdiction.

Taking of evidence for purposes of Article 6(2)(g) and Article 7

16. (1) The Central Authority shall refer a request for appropriate measures to the Master of the High Court where the Central Authority is satisfied the request comes within the scope of the Convention and is made to it by a requesting Central Authority -

(a) for the purposes referred to in Article 6(2)(g), or

(b) in accordance with Article 7(1), for the purposes of Article 6(2)(g).

(2) The Central Authority may refer a request for appropriate measures to the Master of the High Court where the Central Authority is satisfied the request comes within the scope of the Convention and is made to it by a requesting Central Authority in accordance with Article 7(2) for the purposes of Article 6(2)(g).

(3) The Master of the High Court shall, in accordance with paragraph (4), on receipt of a request referred to in paragraph (1) or (2), where he or she is satisfied the measures requested are necessary to satisfy the requirements of the Convention, request a judge of the District Court to take the evidence of a person residing in the State.

(4) The Master of the High Court shall make the request under paragraph (3) to a judge of the District Court for the time being assigned to the district court district in which the person to whom the request is made resides.

(5) Where a judge of the District Court is requested to take evidence under paragraph (3), a district court clerk for the district court area in which the person to whom the request is made resides shall cause notice of the time and place at which evidence is to be taken to be served on the person concerned, the Central Authority for communication to the requesting Central Authority and to such other persons as the judge thinks fit.

(6) A judge of the District Court taking evidence in accordance with this Regulation shall have the same powers in relation to compelling the attendance of persons, the production of documents and the taking of evidence as the District Court has on the hearing of an action.

(7) The judge of the District Court shall take the evidence as requested by the Master of the High Court under paragraph (3) and shall cause a record thereof to be sent to the Central Authority for transmission to the requesting Central Authority concerned.

(8) Where it is not possible to take the evidence within a reasonable period of time, not exceeding three months from the receipt of the request by the Central Authority, the judge of the District Court to whom the request has been made shall cause the reasons for the inability to take the evidence or for any delay in taking the evidence to be sent to the Central Authority for transmission to the requesting Central Authority concerned.

Proof and admissibility of decisions and certain translations

17. (1) For the purposes of the Convention and these Regulations a document, duly authenticated, which purports to be a copy of a decision within the meaning of Article 19 made in a state bound by the Convention shall without further proof be presumed to be a complete text of the decision, unless the contrary is shown.

(2) A document shall be regarded as being duly authenticated for the purposes of paragraph (1) if the document -

(a) purports to bear the seal of the judicial authority or administrative authority referred to in Article 19, or

(b) purports to be certified by a judge, officer of the court or administrative authority to be a true copy of the decision within the meaning of Article 19.

(3) A document which -

(a) purports to be a translation of a decision given in a state bound by the Convention, and

(b) is certified as correct by a person competent to do so,

shall be admissible as evidence of the text of the decision of which it purports to be a translation.

Currency of payments

18. (1) A sum of money payable under a decision, to the extent that the decision is the subject of a recognition order or a declaration of enforceability, shall be payable in the currency of the State.

(2) If the sum referred to in paragraph (1) is stated in the decision in any other currency, payment shall be made on the basis of the exchange rate prevailing between the currency of the State and the other currency on the date the recognition order or declaration of enforceability, as the case may be, is made.

(3) For the purposes of this Regulation, a certificate purporting to be signed by an officer of an authorised institution and to state the exchange rate prevailing on a specified date between a specified currency and the currency of the State shall be admissible as evidence of the facts stated in the certificate.

(4) In this Regulation, ‘authorised institution’ means -

(a) a credit institution (as defined in point (1) of Article 4(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013² ),

(b) a trustee savings bank within the meaning of the Trustee Savings Banks Acts 1989 and 2001, or

(c) An Post.

Request by Central Authority for information and documentation

19. (1) The Central Authority may, for the purposes of the performance by it of its functions under the Convention and these Regulations, request a person to provide any of the information specified in paragraph (2) or documentation specified in paragraph (3), or both, as the case may be, held by, or in the possession of, that person, within such period of time as may be specified in the request, or such period of time as may be subsequently agreed between the Central Authority and that person.

(2) The information referred to in paragraph (1) is:

(a) the address of a maintenance debtor or of a maintenance creditor;

(b) details of the income and financial circumstances of a maintenance debtor or maintenance creditor;

(c) the identity and contact details of the employer of the maintenance debtor or maintenance creditor;

(d) details of any bank account held by the maintenance debtor;

(e) details, including the location, of the assets of a maintenance debtor or maintenance creditor.

(3) The documentation referred to in paragraph (1) is:

(a) where any information referred to in paragraph (2) is or has been the subject of a request under paragraph (1), any supporting documentation considered necessary for that information;

(b) any other documentary evidence required to enable the Central Authority to comply with a request received from a requesting Central Authority for the purposes referred to in Article 6(2)(g) or received, in accordance with Article 7(1), for the purposes of Article 6(2)(g).

(4) The person to whom a request is made under paragraph (1) shall, within the period of time referred to in that paragraph, provide the information or documentation, or both, as the case may be, requested to the extent it is held by, or in the possession of, that person.

(5) Where the person to whom a request has been made fails to comply with a request within the period of time referred to in paragraph (1), the Central Authority may apply to the District Court for an order directing compliance with the request and the Court may, where it is satisfied that it is appropriate to do so, order that person to provide such information or documentation, or both as the case may be.

(6) The Central Authority may, where necessary for the performance of its functions under the Convention, send the information or documentation, or both, as the case may be, to a requesting Central Authority.

(7) For the purposes of this regulation, the jurisdiction vested in the District Court may be exercised by the judge of that Court for the time being assigned to the district court district in which the person to whom the request is made resides or carries on any profession, business or occupation.

GIVEN under my Official Seal,

25 November, 2019.

CHARLES FLANAGAN,

Minister for Justice and Equality.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

The European Union (Hague Maintenance Convention) Regulations 2019 ensures that the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance done at The Hague on 23 November 2007 (the “Hague Maintenance Convention”) has an appropriate “fit” in the Irish system. The Convention seeks to ensure that maintenance obligations are respected in cases with an international dimension by providing for a network of co-operation between central authorities and by providing for a system of recognition and enforcement insofar as relevant judgments are concerned.

1 OJ L 192 39, 22.7.2011

2 OJ L 176 27.6.2013, p.1.