CA-2024-001698 - [2025] EWCA Civ 1136

Although the Maintenance Regulation had direct effect in English law, various consequential amendments were introduced in some haste by Schedule 7 to the CJJ(M)R 2011 so as to make existing domestic legislation consistent with the Maintenance Regulation. In a different context, Lord Wilson referred to the CJJ(M)R 2011 as an “unsatisfactory piece of legislation” (Villiers v Villiers [2020] UKSC 30; [2021] AC 838 (‘Villiers’) at [120]). Our consideration of section 15(1A) and section 16(1)/(3) of the 1984 Act in this appeal entirely tallies with that view. As I have mentioned above, the Maintenance Regulation has no current or continuing impact in domestic law. It is however agreed that it applied to the instant case at the time of the decision under review.

By the close of the argument on this appeal, there was not a great deal between the parties in relation to the application of the Maintenance Regulation to the needs element in this case. It was in particular agreed that:

First, it is reasonably clear that the wife is/was a ‘maintenance creditor’ within the meaning of the Maintenance Regulation; the regulation can apply to first time applicants (see, for example, Sir James Munby P in Re C (A Child) (Maintenance Regulation) [2021] EWFC 32; [2022] 1 FLR 543). Insofar as Lord Leggatt appeared to express a contrary view at [101] of Potanina (SC), he did so (as he made clear) having heard no argument on the point. The term ‘maintenance’ is not defined in the regulation, but it has been held to be wide enough to include payment of a lump sum and/or transfer of ownership of property (C-220/95: Van Den Boogaard v Laumen [1997] QB 759), and maintenance obligation is interpreted autonomously (see recital 11).

Secondly, in applying the inter-connecting provisions of the 1984 Act and the Maintenance Regulation, it is necessary to start with section 15(1A) of the 1984 Act. Where maintenance obligations arose under the Maintenance Regulation (i.e., ‘in Member States’), jurisdiction lay with the court identifiable by either Article 3 (a), (b), (c), or (d) ibid.; these are, in some respects similar to, but in other respects different from, the qualifying criteria in the 1984 Act. Article 3 of the Maintenance Regulation established a mandatory rule regarding jurisdiction (“jurisdiction shall lie with…”: emphasis added). If the Maintenance Regulation did not apply to a given case, then the court applied the jurisdictional test contained in section 15(1) of the 1984 Act.

Thirdly, the effect of Article 3 in a case such as this was that in matters relating to maintenance obligations in Member States the maintenance creditor had the choice of where to sue; they could sue for maintenance in the creditor’s member state or pursue the debtor in the debtor’s member state. As Lord Sales said in Villiers at [29]:

“The object of the mandatory rule of jurisdiction in article 3 of the Maintenance Regulation is to afford special protection for a maintenance creditor by giving him or her the right to choose the jurisdiction most beneficial for them out of the range of options specified in that article”.

Section 16(3) of the 1984 Act provided that if the court had jurisdiction in relation to the application or part of it by virtue of the Maintenance Regulation, the court could not dismiss the application or that part of it on the ground mentioned in section 16(1) of the 1984 Act “if to do so would be inconsistent with the jurisdictional requirements of that Regulation”. As I have said above, the Maintenance Regulation was so crafted as to make it easier for a maintenance creditor (traditionally the weaker party) to enforce his or her rights, by giving them the right to choose where to sue the maintenance debtor. Section 16(3) does not in terms disapply section 16(1) and (2) entirely where one of the qualifying criteria of the Maintenance Regulation is satisfied, but in order to give effect to its obvious statutory purpose of ensuring that the application of the Maintenance Regulation takes precedence, the court must be precluded from deciding that it was not “appropriate” (section 16(1) ibid) for the case to proceed in England and Wales if that would frustrate the maintenance creditor’s right to choose where to enforce their rights.

The scheme of this form of EU legislation is inconsistent with the court of a member state retaining any discretionary power to stay proceedings on the grounds of forum non conveniens (see the decision of the Grand Chamber of the ECJ in Owusu v Jackson (Case C-281/02) [2005] QB 801, R v P (Case C-468/18) [2020] 4WLR 8, andagain see Villiers). As Lady Black said in Villiers at [63] (drawing from the CJEU decision in R v P):

“The Maintenance Regulation must be considered “exhaustive”, … and it does not permit a court which has jurisdiction under one of the provisions of the Maintenance Regulation to decline jurisdiction on the basis that another court would be better placed to hear the case”.

And as Lord Wilson put it at [167] ibid:

“… if conferred with jurisdiction under the Maintenance Regulation, a member state could not decline to exercise it by reference to any principle of the less appropriate forum.”.

In this case, it was uncontroversial that by the time of her application the wife was habitually resident in England and Wales. She therefore satisfied Article 3(b) of the Maintenance Regulation. In addition, as she had been habitually resident for at least one year preceding the date of her application for leave, she also satisfied section 15(1) of the 1984 Act. It was not therefore open to the Judge to dismiss the ‘maintenance’ aspect of the application on essentially forum non conveniens grounds. It is clear from what he said in Potanina (FD2) at [79] that he applied a narrow construction of section 16(3) which did not reflect its proper scope. I would agree with Mr Nagpal that “connection” is irrelevant once jurisdiction is established by reason of the Maintenance Regulation; additionally, the fact that an applicant could apply for maintenance against the other party in another country (section 16(2)(f)) would be an irrelevant consideration because, as Lord Sales said in Villiers at [29], a maintenance creditor has “the right to choose the jurisdiction most beneficial for them”.

Cohen J treated section 16(3) as limited to precluding dismissal of the claim solely on the basis of an absence of connection. In my judgment, he was wrong to do so. His error was vividly exposed by his reference to attaching “weight” to the finding that the wife was habitually resident in this country, notwithstanding that this was jurisdictionally determinative. In this way, the wife was wrongly denied the choice to bring her maintenance / needs claim in this country, notwithstanding that she satisfied the jurisdictional requirements of the Maintenance Regulation. This is what section 16(3) of the 1984 Act was designed to prevent.

For the avoidance of doubt, I am satisfied (as both parties argued) that the jurisdictional issues discussed above only arose if the applicant could satisfy the test of ‘substantial ground’ for making a needs-based application under section 13 of the 1984 Act. As I have indicated above, I have concluded that she did even without reference to section 16(3). The court must therefore determine the application on its merits.

Finally, I should add that by a Respondent’s Notice dated 15 April 2020, the husband had originally sought to argue that the Maintenance Regulation is not engaged at all in the instant case because, he suggested, the wife’s claim was a sharing claim. However, by the time of this appeal, this point was no longer pursued by the husband. I further reject, for the reasons outlined at §104 above, the separate alternative ground that in a case involving the Maintenance Regulation it was enough for the court merely to “accommodate the jurisdictional requirements of the Maintenance Regulation” in its consideration of section 16(1)/(2) if that resulted in not giving proper effect to its aims.

I would allow the appeal on Ground 12.