International Child Support: Legal Basis, Country Overviews, and Enforcement

1. Barry Brooks, Susan Paikin, Hannah Roots Our International Partners

2. Introductions • Overview • Legal Basis for Child Support • Country Overviews • Legal and Practice Issues • Establishment • Enforcement • Modification • Other Issues

3. Foreign Reciprocating Countries (FRCs) • State reciprocal arrangements • UIFSA – “substantially similar” finding • Comity • Direct application THE LEGAL BASIS FOR U.S. INTERNATIONAL CHILD SUPPORT

4. Section 459A of the Social Security Act • Foreign Reciprocating Countries (FRC) • Declared by the Secretary of State, with concurrence of Secretary of HHS • FRC must meet the mandatory requirements of subsection (b) • Procedures for establishment of paternity and support for children and custodial parent • Procedures for enforcement of support order, collection and distribution • Cost-free services • Central Authority

5. Foreign Reciprocating Countries (FRCs) • The US currently has bilateral reciprocity arrangements with 14 countries and 12 Canadian Provinces. • FRC country-specific information, including forms • Caseworker’s Guide to Processing Cases with FRC • International Dear Colleague Letters (IDCLs) to assist FRCs in doing child support business with the U.S. • Locate services for FRCs searching for the state location of an individual in the US who is involved in a child support case. http://www.acf.hhs.gov/programs/css/international

6. Section 459A of the Social Security Act (cont’d) • State reciprocal arrangement, subsection(d): • “State may enter into reciprocal arrangements for the establishment and enforcement of support obligations with foreign countries that are not the subject of a declaration pursuant to subsection (a), to the extent consistent with Federal law.” http://www.acf.hhs.gov/programs/css/irg-state-map

7. Working Cases When No Reciprocity • UIFSA – state finding that a foreign country has “substantially similar” laws • Comity – case by case determination as to whether a foreign order will be enforced • Courts may recognize the judicial decisions of another country out of deference and mutual respect, even if no obligation exists to do so. • State law process

8. Working Cases When No Reciprocity • Direct application for services to a IV-D agency • OCSE PIQ-99-01 • Section 454(4)(A)(ii) of the Social Security Act (the Act) imposes a literal requirement that State agencies must provide Title IV-D services to anyone who has filed a proper application for services with the agency. • OCSE has consistently interpreted the language, now found under section 454(4)(A)(ii), as imposing no residency or citizenship requirement as a precondition for Title IV-D services under the Act.

9. COUNTRY OVERVIEWS

10. Canada

11. Reciprocal Agreements All Provinces except Quebec are FRCs with United States

12. Divorce Some enforcement (passports, airline/ marine licences) All child support enforcement All non-divorce family breakdowns Interjurisdictional cases (ISO) Federal or Provincial Law ? 4

13. Similarities • What the provinces/territories have in common • Similar child support guidelines for divorce and non-divorce matters • All use Court based processes for establishment and modification • IV-D type agencies for enforcement only • Enforcement is largely administrative and carried out by government programs • Similar range of enforcement mechanisms • Similar Interjurisdictional processes (recognition, enforcement and modification of foreign orders)

14. Differences • What is different between provinces/territories • Court rules and processes • Civil law is used in Quebec • Different threshold arrears for some enforcement remedies (credit bureau reporting; driver’s licence withhold) • Extent of locate services • Enforcement program procedures and documents • Reciprocal agreements with other countries (other than US; except Quebec)

15. Canada • Child support is always payable for children born/conceived during marriage • Paternity determined through DNA testing but accounts for relatively few cases • Dis-establishment is rare • Generally “parent” will still have to pay child support under loco parentis rules • Liability for step-children if the NCP acted as a parent (loco parentis) • despite involvement of biological parent, and continuing after termination of relationship • All Canadian programs enforce spousal only cases as well as child support, and child support+spousal support

16. Jurisdiction - Child Support • Jurisdiction to award child support is based on residence of child and CP • Marital status determines which legislation can be used • Child support guidelines based on NCP income only • Extraordinary expenses may be awarded in addition to monthly amount • No medical support orders

17. Resources • Maintenance Enforcement Websites (see Handout) • OCSE Caseworkers Guide • NCSEA, ERICSA and WICSEC resources

18. United Kingdom

19. U.S. has declared the United Kingdom of Great Britain and Northern Ireland (UK) an FRC. UK includes England, Wales, Scotland, and Northern Ireland. • England and Wales are treated as a single jurisdiction with a common legal system • Scotland and Northern Ireland each have their own legal system.

20. UK Central Authority • There are 3 “central authorities” in the UK. These offices are the UK’s transmitting and receiving agencies for international child support cases: • England and Wales – the Reciprocal Enforcement of Maintenance Orders (REMO) unit at the Official Solicitor’s Office in London; • Scotland - the Civil and International Justice Directorate of the Scottish Government in Edinburgh; and • Northern Ireland – the Northern Island Courts and Tribunals Service. • Central authority* staff reviews outgoing and incoming papers, and can help with some problems, but they do notdecide case outcomes. *All referred to as “REMO” for this presentation.

21. REMO – Contact Info • England and Wales (correspondence*) Official Solicitor and Public Trustee Reciprocal Enforcement of Maintenance Orders Unit Victory House 30-34 Kingsway London WC2B6EX 011 44 0 20 3681 2757 011 44-0 20 3681 8764 (FAX) remo@offsol.gsi.gov.uk https://www.gov.uk/child-maintenance-if-one-parent-lives-abroad * REMO does not process payments! Please send funds collected as directed by the court (to CP/court).

22. REMO – Contact Info • Scotland (correspondence*) Scottish Gov’t Central Authority & Intl Law Team 2nd Floor West St Andrews House Regent Road Edinburgh EH1 3DG 0131 244 4829 (direct phone) 0131 244 4848 (FAX) bill.galbraith@scotland.gsi.gov.uk and gregor.nimmo@scotland.gsi.gov.uk (case worker) http://www.scotland.gov.uk/Topics/Justice/law/17867/fm-children-root/maintenance • Scotland’s Central Authority does not distribute money. State agencies should send child support payments according to the instructions in the order. If you cannot send the money directly to the custodial parent, send it to the Scottish central authority with the custodial parent’s name included.

23. REMO – Contact Info • Northern Ireland (correspondence*) REMO Unit at Central Business Unit Northern Ireland Courts and Tribunals Service 4th Floor, Laganside House 23-27 Oxford Street Belfast BT1 3LA 011 44 28 9049 5884 011 44 2890 728 945 (FAX) businessdevelopmentgroup@courtsni.gsi.gov.uk http://www.courtsni.gov.uk/en-GB/pages/default.aspx *REMO unit for Northern Ireland does not distribute money. State agencies should send child support payments directly to the custodial parent or if so directed, to a specifically named Court Office in Northern Ireland for onward transmission to the custodial parent (checks should be made payable to the custodial parent).

24. REMO – Contact Info • OCSE maintains contact and payment processing information for FRCs on its website at https://extranet.acf.hhs.gov/irg/contact.html • Contact information for the UK was most recently certified by OCSE on 3/20/14

25. REMO • Once received and reviewed, the appropriate REMO unit will file the application or request with the appropriate court in its jurisdiction. • Only the local courts rule on cases and are responsible for enforcement.

26. REMO • For outgoing UK cases, REMO is the central point of communication between the UK applicant and/or applicant’s court and the US IV-D agency. Foreign Authority REMO UK Courts • REMEMBER: UK applicant/court is not required to use UIFSA forms when sending a case to the US • UK applications to the US generally prepared by the court • There are no agreed bilateral forms for US-UK cases • IV-D agencies may not require UIFSA forms in a UK case • REMO will accept UIFSA forms on incoming US cases

27. REMO • The new FIPS code for each jurisdiction are found in DCL 14-04: Updated Locator Data Code data Standards. Please update your automated system. United Kingdom Sub-jurisdictions Locator Code England/Wales 81826 Northern Ireland 82826 Scotland 83826 http://www.acf.hhs.gov/sites/default/files/programs/css/dcl_04_04a_coding_scheme_for_locator_codes.pdf

28. Germany Overview

29. Germany Overview Two Agencies – Outgoing: Two Agencies: Heidelberg - DIJuF Bonn – Federal Office of Justice One Agency - Incoming: Bonn – Central Authority

30. ESTABLISHMENT

31. Incoming cases • Paternity establishment • If paternity establishment is required, the government program will assist and pay costs • Costs can be recouped by order if the person is found to be a parent • Very few cases in BC • Other cases • No requirement to establish parentage before making an order • Child support order • Made under Provincial guidelines • Amount expressed in Canadian dollars

32. Outgoing cases • ISO Forms package sent to jurisdiction where NCP lives • ISO Forms are (somewhat) similar to UIFSA forms • Request to your court to make an order • If paternity is challenged, sending agency will assist in getting CP and child tested

33. Locate issues • No Canadian equivalent of US Postal search • No federal search agency for direct requests • Requests must be made to a Province / territory • Province may search federal data banks • Some differences between Provinces as to whether they can do locate for establishment • Provinces differ as to whether NCP’s address will be given or whether requesting agency will simply be advised that NCP is in the Province

34. Incoming cases from the • Paternity establishment • If paternity establishment is required (paternity not previously determined under UK law): • UK court/REMO will help coordinate testing, if needed (US labs may gather genetic material without assistance) • Equivalent of paternity affidavit may be needed from mother* *If any information is missing from the application, please do not send the entire application back. Instead, please contact the REMO unit with a description of the missing information and every effort will be made to obtain the information for you.

35. Incoming cases from the • Child support order • UK application will provide*: • a testimony affidavit [application and formal written evidence, including the applicant’s financial circumstances and whatever is known about the payor’s circumstances]; • a statement giving such information as the officer possesses as to the whereabouts of the payor and the nature and location of his assets in the U.S.; • a description of the payor; and • where available, a photograph of the payor. • Child support guideline, duration, retroactivity of support governed by law of issuing US state *If any information is missing from the application, please do not send the entire application back. Instead, please contact the REMO unit with a description of the missing information and every effort will be made to obtain the information for you.

36. Outgoing cases to the • Paternity establishment - UK court may establish paternity in accordance with its laws: • Remember, dealing with three legal systems with different laws and procedures • While there will be differences, the law in each system authorizes the court with jurisdiction to: • obtain a declaration of parentage • deal with aspects pertaining to legitimacy and legitimization of children, • order testing to determine parentage in a civil proceeding • Contact the appropriate REMO agency or designated court, if known, for details

37. Outgoing cases to the • Child support order • An application for support may be made for child under 18 by parent or guardian • The amount of support is determined based on the resources of the obligor and the needs and circumstances of the obligee, including: • whether or not the child receives any income • any physical or mental disability of the child • the manner in which the child was being, or was expected to be, educated or trained • Support amount, duration and other terms set by UK law • Remember, dealing with three legal systems ; there will be some (generally minor) difference in laws and procedures

38. Establishment DNA if needed Guidelines = Düsseldorf Table Duration – BOW?

39. Establishment Bi-Lingual Forms Not a “State” Resident Long Arm (Submit) Jurisdiction

40. Establishment DNA if needed Guidelines = US State Duration = US State

41. ENFORCEMENT

42. Incoming Cases • Orders are registered with the Court and enforced through enforcement programs • Enforcement mechanisms are very similar to those used in the United States • Wage garnishment • Garnishment of bank accounts, other monies payable to NCP • Income Tax refund interception • Interception of employment insurance and pensions • Drivers licence withholding • Passport suspension • Liens on personal and real property • Repayment orders from Court (with incarceration for default)

43. Duration of Support • Duration of Support • Under BC and federal law child support is payable beyond the age of majority • Requirement that child be dependent upon the CP (unable to withdraw) • Dependency may be by reason of illness, schooling, inability to find work • Enforcement will continue • Until age 22 (Alberta) • Until child no longer dependent (BC) • Until further Court order or parties agree (Ontario)

44. Currency Conversion • Currency Conversion • Foreign orders are converted to $Can for enforcement • 2 approaches • BC and Manitoba (new) - converted at date of registration and updated periodically (annually) • Elsewhere – converted at date order made or varied and never updated • With 2nd approach – possibility of large “exchange rate arrears” because amount collected unlikely to match amount owing under foreign order • Solution – obtain new order setting arrears

45. Currency Conversion (2) $ KEY POINT • Conversion from foreign currency to Canadian dollars is for enforcement purposes only . • It is not a modification. • NCP responsible for payment of full amount owing under original order. • Good communication about account balances is critical

46. Other points • Some provinces (BC) will collect interest • Either interest under order or interest as provided under provincial legislation • Few programs are allowed to email • Enforcement Program websites provide secure access for reciprocating jurisdictions • Secure messaging and account statements

47. Incoming cases from the UIFSA Registration for Enforcement • Obligor may challenge registered UK order on due process grounds: • Jurisdiction and/or notice • UK court has jurisdiction based on residence of CP and child • If valid order, state may not modify • Terms, duration governed by UK law • Statute of limitations – longer of UK or enforcing state

48. Outgoing cases to the • Enforcement in UK done by court – not REMO • Main types of enforcements currently in place for maintenance orders in the UK: • payment via the court • attachments of earnings orders (wage withholding) • seizure of goods • charging order on properties • bankruptcy proceedings for amounts over £750 • the court can impose a period of imprisonment or remove the driver’s licence of the non payer.

49. Outgoing cases to the • UK law requires the termination date be in the order • UK Court generally accepts payment from obligor and forwards it to the state SDU for disbursement • Child support paid in the UK does NOT pass through REMO • MAKE SURE application and supporting documents provide SDU address and payment instructions

50. Outgoing cases to the Limitations on enforcement in UK • A magistrates court which is enforcing an order for maintenance has discretion under its statutory powers to remit arrears: • Case law has the effect that the court will not enforce arrears which arose under a maintenance order more than 12 months before enforcement proceedings were commenced, unless exceptional circumstances exist • Akin to raising a statute of limitations/laches defense • Describe attempts to enforce arrears • Remember: remitting arrears does not change the sum due in the US under the order