Guidance: Enforcement of financial remedy orders.
- An order of this kind can be made at any stage of proceedings;
- The making of such an order is exceptional and therefore the following conditions must first be met:
(1) The respondent must be in contempt;
(2) The contempt is deliberate and continuing;
(3) As a result, there is an impediment to the course of justice;
(4) There is no other realistic and effective remedy; and
(5) The order is proportionate to the problem and goes no further than necessary to remedy it.Jackson LJ noted from the case law (Mubarak v Mubarik  EWHC 1260) that non-payment in breach of a maintenance order will amount to contempt of court, regardless of ability to pay. The ability to pay is only considered when the court decides whether and how to act on the contempt . The judgment in HR v DS was unique in that it had allowed for the first time the use of a Hadkinson Order in related proceedings; Cohen J himself noted:
“I accept that this may be the first time in which the Hadkinson principle has been extended to cover proceedings which are not identical, albeit related. But it seems to me that this is a remedy which is not so closely confined that it cannot be extended to this situation” .The facts of the case are particularly appalling. In June 2019, one of the parties’ children brought Family Law Act proceedings to exclude their mother’s new husband from the home. This application was backed by the former husband (the children’s father). The child’s application was held to be without jurisdiction and was dismissed. The father was ordered to pay the costs of the mother’s new husband (£37,000) given the role he had played in the litigation. In response, the father stopped paying child maintenance and appealed the costs order. The mother therefore made an application for a Hadkinson order to prevent her former husband from continuing his appeal unless and until he remedied his default in payments of child maintenance to her. The father was held to be in contempt for his failure to pay; he was a rich man who could pay, and this was a deliberate choice made by him. This action by the father had been an impediment to justice; Cohen J held that fathers cannot be allowed to choose to pay nothing towards their children, particularly when payment is the subject of a consent order. Finally, it was held that there was no effective alternative means to enforcement  – . Whilst the proceedings were not identical, it was held that they were intrinsically linked and that it was a direct result of the outcome in the Family Law Act proceedings that the father had chosen not to pay maintenance from the other set of proceedings . Cohen J therefore concluded that a Hadkinson order could be made. COVID-19 In light of the current global pandemic, enforcement of financial remedies has been brought into sharp focus. Many people will be concerned about their financial positions and even more so where their former spouse is refusing to pay up in accordance with a financial order. Despite the restrictions under COVID-19, the court is still able to conduct remote hearings, with Central Family Court guidance given by His Honour Judge O’Dwyer on 30 March 2020 indicating that enforcement applications and hearings can continue and will be classified as urgent matters. The starting point: making an application To make an application to enforce an order for the payment of money, the creditor/receiving party will need to apply to the court where the order was made and complete an application notice accompanied by a statement setting out the amount they are due and why (r. 33.3(1) FPR 2010). When making the application, the creditor can indicate whether they are seeking:
- a specific enforcement method; or
- such a method of enforcement as the court may consider appropriate, using the Form D50K procedure (r. 33.3(2)).
- Magistrates’ powers of enforcement
- To require that the debtor/paying party make a payment for the amount specified in the order plus an amount in respect of arrears (Family Court Practice, 1.95);
- To order that periodical payments be made by standing order (s. 1 Maintenance Enforcement Act 1991);
- To make an attachment of earnings order (part 39 applies (r. 33.19)); and
- Committal by way of judgment summons (NB: this requires a specific application to be made).
- Means of payment order
- Attachment of earnings
- Third party debt order
- the name and address of the paying party;
- details of the judgment or order;
- the amount of money owed;
- if the money owed is payable by instalments and the amount of any instalments owed;
- details of the relevant branch of the paying party’s bank;
- if the receiving party knows or believes that any person other than themselves has a claim to the money in the bank, their details and information known to the creditor about their claim (r. 72.3(2); PD 72, 1.1 & 1.2).
- fix a final hearing (r. 72.4);
- direct that the bank/building society must not authorise any payments that reduce the account balance below the amount owed (r. 72.4); and
- specify the amount the bank must retain in the account, to cover both the amount owed and a separate amount for the receiving party’s costs (PD 72, para 2).
- Forcing a sale in default of property transfer or periodical payments
(i) visiting estate or letting agents, developer sales offices or show homes;
(ii) viewing residential properties to look for a property to buy or rent;
(iii) preparing a residential property to move in;
(iv) moving home;
(v) visiting a residential property to undertake any activities required for the rental or sale of that property”Therefore, estate agents can now provide house viewings, however, there may be some delay in this whilst the logistics for social distancing are considered. Such a delay is likely to be short term. Whilst the housing market has reopened, it should be noted that the Land Registry has issued a notice stating that they anticipate significant disruption to transfers of property titles, with the process now likely to take longer than usual.
- s. 38 & s. 39 court signing relevant documents for transfer
- Judgment summons
a) The fact that the respondent has had, since the date of the order or judgment, the means to pay the sum due must be proved to the criminal standard of proof;
b) The fact that the respondent has refused or neglected, or refuses or neglects, to pay the sum due must also be proved to the criminal standard;
c) The burden of proof is at all times on the applicant; and
d) The respondent cannot be compelled to give evidence.(Prest v Prest EWCA Civ 714,  1 FLR 773, McFarlane LJ, paragraph 55) As part of the hearing, the court may also make a new order for payment of the amount due under the original order, together with the costs of the judgment summons, either at a specified time or by instalments (r. 33.16). Concluding remarks The recent judgment of Mr Justice Cohen has shown the flexibility and the extent to which Hadkinson orders can be used when enforcing a financial remedy, thus providing further armoury to the family practitioner when a party refuses to follow orders. However, before a practitioner reaches the stage at which a Hadkinson order may be appropriate in proceedings, a number of options are available to them, as set out in this article. Whilst the list above does not seek to be comprehensive, it does set out the starting point for the options available to clients and the impact that the current public health crisis may have on them.