International Child Maintenance in Europe

Summary

INTRODUCTION

In the past few years, there has been considerable reform within Europe of how child maintenance claims are handled both at the regional and international level. Until 2007, the recovery of international child maintenance was regulated by dated and largely ineffective international conventions. This all changed when the Hague Conference on Private International Law adopted a Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and an additional Protocol on the Law Applicable to Maintenance Obligations. The main objective of this new Convention is to facilitate the enforcement of international child maintenance claims. This is achieved by building on the strengths of supranational measures previously adopted in other areas to establish a strong system of administrative cooperation in dealing with international child maintenance claims. At the same time as the Child Maintenance Convention was being developed in The Hague, parallel negotiations were being conducted within the EU on the Maintenance Regulation. This sought to achieve similar goals as the Convention but also to go a step further and take advantage of closer regional integration to abolish exequatur, or the requirement for formal recognition of foreign maintenance decisions, within the EU.

Somewhat unusually, however, it was action at the international level that prompted closer cooperation at the regional level. This is illustrated by the key innovation achieved in The Hague, namely free legal assistance for child maintenance claims, which was later mirrored in the EU. This demonstrates the advantages of coordination between developments at the international and regional level because without such progress being made in The Hague, it is unlikely that there would have been such extensive legal aid provisions within the EU.

From a British perspective, it was most welcome that negotiations with the EU were able to take account of developments in The Hague, which resulted in reference to the Hague Protocol on Applicable Law in the EU's Maintenance Regulation. Initially, the European Commission had envisaged a mandatory, autonomous applicable law regime,7 which would have been unpalatable for the United Kingdom, which does not apply foreign law in child maintenance cases, given the disproportionate costs involved. Therefore, it was integral to the success of the EU's Maintenance Regulation that it adopted the optional applicable law regime that had been developed in The Hague.