Recognition and enforcement of overseas orders — children

The Family Court in England and Wales makes child arrangements orders and other section 8 orders every day, which can be enforced by the same courts.

If you have an order made in another country in respect of your children, it may not necessarily be automatically enforceable in England and Wales.

Likewise, if you have an order from England and Wales, it may not be automatically enforceable in an overseas jurisdiction.

What you need to do to enforce your children order depends entirely on where the order was originally made, what has happened since that order was made, how long ago it was made, and what country your child is currently living in.

This area of law is very complex, and you should always seek expert legal advice if you have any questions.

Enforcing existing child arrangement orders of England and Wales in England and Wales

You may already have a child arrangements order of England and Wales, in which case enforcement proceedings are different again.

To enforce your existing child arrangements order, there must be a breach of the order by the other party and your existing children order needs a warning notice attached to it. If it does not have a warning notice attached to it, you will need one adding to the order before you can enforce the same.

The court cannot make an order for enforcement if the court feels that the person in breach of the order has a reasonable excuse for failing to keep to the order. You should seek advice on what may be considered to be reasonable or not. When the court is considering whether an order for enforcement should be made, they will consider the following:

• The reasons for the non-compliance;
• The effect of noncompliance on the child/children concerned;
• The welfare checklist including the best interests of the child/children involved;
• Whether advice from CAFCASS is required for moving forward;
• If the parents should attend any Separated Parents Information Programme or Dispute Resolution Programs
• Whether an enforcement order may be appropriate.

There are a number of enforcements remedies you can seek if there is a breach of a child arrangements order to include:

• An enforcement order or a suspended enforcement order
• Variation of the existing child arrangements order
• Referring parents to a course such as the Planning Together for Children programme, formally known as the Separated Parents Information Programme (SPIP)
• Order for compensation or financial loss
• Committal to prison
• A fine.

Cases that fall under the 1996 Hague Convention

The 1996 Hague Convention is the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.

The purpose is to provide a wide range of legal measures for protection concerning children, and this encompasses enforcement.

Under the 1996 Hague Convention, any interested person may apply to the court for an order that the judgment be registered, recognised or not recognised.

The measures a signatory country takes under this convention to protect a child, or their property must be recognised in all other signatory countries. Only in a limited number of cases may a country refuse recognition.

When protection measures are declared enforceable in another country, that country must enforce them as if it had taken them itself and do so in accordance with its own law.

Cases that fall under Council Regulation (EC) 2201/2003

Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.

The purpose is to provide a wide range of legal measures for protection concerning children, and this encompasses enforcement.

As of 1 January 2021, Council Regulation (EC) 2201/2003 no longer applies in England and Wales to the registration, recognition or non-recognition of judgements unless the judgement was issued before 11pm on 31/12/2020; or was issued after 11pm on 31/12/2020 but in proceedings that were instituted before 31/12/2020 as a result of Brexit.

Enforcing international child maintenance

The Child Maintenance Service of England and Wales generally does not have jurisdiction to deal with parents that live in different countries.

You cannot enforce a private maintenance agreement that you have made between you. It needs to be made into an order before you can take steps to enforce.

In some circumstances Schedule 1 of the Children Act 1989 may be relevant to your case for higher earners, children with additional needs, lump sum payments or overseas payers. Alternatively, you could have an order for child maintenance under the Matrimonial Causes Act 1973.

Reciprocal Enforcement of Maintenance Orders (REMO) is an international agreement between certain countries to help recover child maintenance from parents who live in different countries to one and other.

If you are a parent living in England and Wales and the other parent has moved abroad, you may be able to use REMO to enforce a child maintenance order.

It can also be used if you are a parent living abroad and the other parent is living in England and Wales. REMO is only used where both countries are participating REMO countries.

To start the REMO process, you must have a child maintenance order that you can enforce. The purpose of REMO is to enforce the child maintenance order you already have as if a court in that country had made the order itself. 

If you do not already have a child maintenance order to enforce, you should seek specialist advice from a family lawyer on how you can do so.