A consent order was in made in France following the divorce between the wife and the husband. The wife applied to enforce the financial provisions of the French order through the English courts, but did so under the wrong procedure in the wrong court. Rather than the application being made under Council Regulation (EC) No 4/2009 (“the Maintenance Regulation”) in the Family Court it was made in the High Court on Form C 69 which provided for a procedure for the recognition and registration of parental responsibility under Council Regulation (EC) No 2201/2003 (“the Brussels IIA Regulation”) and FPR Part 31. By the time the mistake came to light, an order for registration of parental responsibility had been made. The wife made an application in the Family Court to “rectify” that order, relying upon FPR r 4.1(6), which provided that “a power of the court under these rules to make an order includes a power to vary or revoke the order”. The judge held that the court had the power under FPR r 4.1(6) to rectify the erroneous order, but refused the application on the evidence.
On the wife’s appeal—
Held, appeal dismissed. Prior to making an order under FPR r 4.1(6), the court had to be satisfied that the rule was in fact engaged: the proposed order had to be made under a “power of the court under [the] rules” and the order sought had to be one to vary or to revoke the earlier order. Once satisfied that the rule was engaged, the court then moved on to decide whether the power should, on the facts of the particular case, be exercised bearing in mind the desirability of a “principled curtailment of an otherwise apparently open discretion”. In the present case, the order sought was a wholesale replacement of the order made by the judge with a fresh order aimed at achieving something wholly different from the original valid order and backdated by approaching three years, which could not be categorised as variation (no matter how broadly interpreted), revocation or rectification. Accordingly, since FPR r 4.1(6) was not engaged, the judge had no jurisdiction to make the order sought by the wife substituting, with retrospective effect, an order for enforcement under the Maintenance Regulation for the existing order for the recognition and registration of parental responsibility under the Brussels IIA Regulation (paras 43, 53–56, 64, 66, 67, 68).
Rebecca Bailey-Harris and Sassa-Ann Amaouche (instructed by Sears Tooth) for the wife.
James Turner QC and Katherine Dunseath (instructed by Michelmores LLP) for the husband.