The International Recovery of Maintenance (Hague Convention 2007) (Scotland) Regulations 2012

Citation, commencement and extent

1.  These Regulations—

(a) may be cited as the International Recovery of Maintenance (Hague Convention 2007) (Scotland) Regulations 2012;

(b) come into force on the day on which the Convention enters into force in respect of the European Union, which day is to be notified in the Edinburgh Gazette; and

(c) extend to Scotland only.

Interpretation

2.—(1) In these Regulations—

“Contracting State” means a State bound by the Convention other than an EU Member State;

“the Convention” means the Convention on the International Recovery of Child Support and other forms of Family Maintenance done at The Hague on 23rd November 2007(1);

“court”, in relation to a maintenance decision given in a Contracting State, includes a tribunal, and any administrative authority (within the meaning of Article 19(3)) with competence to make a decision of a maintenance obligation; and

“maintenance decision” means a decision, or part of a decision, made by a court in a Contracting State, to which Chapter V of the Convention applies by virtue of Article 19(1).

(2) In these Regulations, any reference to a numbered Article is a reference to the Article so numbered in the Convention and any reference to a sub-division of a numbered Article is to be construed accordingly.

Central Authority in relation to Scotland

3.  The Scottish Ministers are designated for the purposes of Article 4 as the Central Authority in relation to Scotland.

Recognition and enforcement in Scotland of maintenance decisions made by courts in Contracting States

4.—(1) The court in Scotland to which an application for registration of a maintenance decision under the Convention is to be made is the sheriff court.

(2) Jurisdiction in relation to an application for registration of a maintenance decision lies with the courts of Scotland if—

(a) the person against whom enforcement is sought is resident in Scotland; or

(b) assets belonging to that person and which are susceptible to enforcement are situated or held in Scotland.

(3) Where jurisdiction in relation to an application for registration of a maintenance decision lies with the courts of Scotland, the Scottish Ministers are to transmit it to the sheriff court having jurisdiction in Scotland in accordance with Schedule 8 to the Civil Jurisdiction and Judgments Act 1982(2).

(4) An application for registration is to be determined by the sheriff clerk of the registering court.

(5) The determination of the sheriff clerk under paragraph (4) may be appealed to the sheriff by way of summary application.

(6) The determination of the sheriff of a summary application under paragraph (5) may be subject to a final appeal on a point of law to the Inner House of the Court of Session.

(7) For the purposes of enforcement of a maintenance decision registered under the Convention in the registering court—

(a) the decision is of the same force and effect;

(b) the registering court has in relation to its enforcement the same powers; and

(c) proceedings for or with respect to its enforcement may be taken,

as if the decision had originally been made by the registering court.

(8) Paragraph (7) is subject to—

(a) regulation 5 (interest on debts under a maintenance decision); and

(b) any provision made by rules of court as to the procedure for the enforcement of maintenance decisions registered in accordance with this regulation.

Interest on debts under a maintenance decision

5.—(1) Where a person applying for registration of a maintenance decision shows that—

(a) the decision provides for the payment of money; and

(b) in accordance with the law of the Contracting State in which the maintenance decision was given and the terms of the decision, interest on that sum is recoverable at a particular rate and from a particular date or time,

the debt resulting from registration of the decision is to carry interest at that rate and from that date or time.

(2) Interest is not recoverable under paragraph (1) unless the rate of interest and the date or time referred to in paragraph (1)(b) are registered with the decision.

(3) Debts under a maintenance decision registered in a court in Scotland under the Convention are to carry interest only as provided for in this regulation.

Currency of payments under a maintenance decision

6.—(1) Sums payable under a maintenance decision registered in a court in Scotland under the Convention, including any arrears so payable, are to be paid in sterling.

(2) Where the maintenance decision is expressed in any other currency, the amounts are to be converted on the basis of the exchange rate prevailing on the date on which the application for registration was received by the Scottish Ministers for transmission to a court.

(3) For the purposes of this regulation, a written certificate purporting to be signed by an officer in any bank in Scotland and stating the exchange rate prevailing on a specified date is sufficient evidence of those facts.

Proof and admissibility of certain maintenance decisions and related documents

7.—(1) For the purposes of proceedings relating to the Convention, a document that is duly authenticated and which purports to be a copy of a maintenance decision given by a court in a Contracting State is without further proof deemed to be a true copy, unless the contrary is shown.

(2) A document purporting to be a copy of a maintenance decision given by a court in a Contracting State is duly authenticated for the purposes of this paragraph if it purports—

(a) to bear the seal of that court; or

(b) to be certified by any person in that person’s capacity as a judge or officer of that court to be a true copy of a maintenance decision given by that court.

(3) Nothing in this regulation is to prejudice the admission in evidence of any document which is admissible apart from this regulation.

Maintenance arrangements

8.—(1) References in this regulation to maintenance arrangements are to those maintenance arrangements (as defined in Article 3(e)) which are to be recognised and enforceable in the same way as maintenance decisions by virtue of Article 30.

(2) In relation to a maintenance arrangement which is enforceable as a maintenance decision in the Contracting State of origin, these Regulations apply, subject to the modifications in paragraph (3), as if that maintenance arrangement was a maintenance decision given by a court of that State.

(3) The modifications are as follows—

(a) regulation 4 (recognition and enforcement in Scotland of maintenance decisions made by courts in Contracting States) applies to maintenance arrangements as if—

(i) in paragraph (7), for “as if the decision had originally” there were substituted “as if it were a decision which had originally”; and

(ii) after paragraph (8)(b), there were inserted—

“(c) Article 30(6) (restriction on enforcement where there is a challenge to a maintenance arrangement in the Contracting State of origin).”;

(b) regulation 5 (interest on debts under a maintenance decision) applies to maintenance arrangements as if, in paragraph (1)(b), for the word “given” there were substituted “concluded”; and

(c) regulation 7 (proof and admissibility of certain maintenance decisions and related documents) applies to maintenance arrangements as if—

(i) in paragraph (1), for “given by a court” there were substituted “formally drawn up or registered as an authentic instrument by, or authenticated by, or concluded, registered or filed with a competent authority”; and

(ii) for paragraph (2) there were substituted—

“(2) A document purporting to be a copy of a maintenance arrangement drawn up or registered as an authentic instrument by, or authenticated by, or concluded, registered or filed with a competent authority in a Contracting State is duly authenticated for the purposes of this paragraph if it purports to be certified to be a true copy of such an arrangement by a person duly authorised in that State to do so.”.

(4) Section 18 (enforcement of U.K. judgments in other parts of U.K.) of the Civil Jurisdiction and Judgments Act 1982 does not apply to maintenance arrangements.

Consequential Amendments

9.  The Schedule (which makes amendments consequential to the Convention and further amendments consequential to Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations(3) including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark(4)) has effect.

KENNY MACASKILL

A member of the Scottish Government

St Andrew’s House,

Edinburgh

6th November 2012