Recovery of foreign maintenance
The Maintenance Act 1994 and Council Regulation (EC) 4/2009
The Maintenance Act 1994 gives effect to the New York Convention which facilitates the recovery abroad of maintenance. Section 4(1)(a) of the Act enables the appointment of a Central Authority for Maintenance Recovery and gives that Authority the functions required of a Central Authority under the New York Convention.
The New York Convention provides for the recovery of maintenance abroad where no order is in place and the enforcement abroad of maintenance orders.
Both Conventions use the word "shall" rather than "may" when setting out the assistance obligations on the part of the Central Authority. On foot of section 28(5) of the Civil Legal Aid Act 1995, the Board is obliged to grant legal aid certificates to persons seeking to enforce Orders for maintenance made outside the jurisdiction and to persons seeking to initiate proceedings for maintenance in this jurisdiction. The certificates are granted without reference to the person’s means and without the requirement that a financial contribution be discharged.
Council Regulation (EC) 4/2009 applies to the enforcement and recovery of maintenance within the European Union. The provisions of the Regulation replace the provisions of the New York Convention insofar as they provide for a separate system of Central Authorities (receiving and transmitting agencies) between the member states. There are also detailed provisions regarding the automatic recognition and enforcement of orders between the member states.
As the Maintenance Regulation envisages that orders made in the member states should be treated the same as domestic orders for enforcement purposes it is appropriate to refer enforcement of EU orders to the District Court PP panel if the Law Centre is not in a position to provide the service in time for the court hearing. This can arise, for example, where the Central Authority has requested the District Court clerk to pursue enforcement and an enforcement summons has been issued returned to a particular date. As the maintenance creditor will be living abroad the law centre may have to choose the PP from the panel acting as representative of the Central Authority.
A common feature of the provisions dealing with enforcement of foreign orders is that under the various Irish provisions giving effect to the Maintenance Act 1994 and the EU Maintenance Regulation is that the foreign order is treated as an Irish maintenance order for enforcement purposes. In that context where a timely service is not available for representation on behalf of the creditor in maintenance enforcement proceedings before the District Court and the Court is likely to require representation for the creditor consideration can be given to asking a PP to deal with the moving the enforcement summons. In cases to which the EU Maintenance regulation does not apply guidance should be sought from the Director of Civil Legal Aid.
The Board does not generally regard maintenance recovery applications as matters requiring a priority service and cases referred to law centres should be placed on the applications record according to the date of receipt of the application by the Board. The Board does however need to be mindful of the State’s international obligations. Where a timely service cannot be provided by the law centre then the PP service should be used where this is permitted as above.