The Law Society has expressed opposition to proposals that debtors in family courts should be jailed.
Responding to a recently published consultation by the Law Commission on the enforcement of financial orders, the organisation agreed that the current system was complex and needed simplification.
Current regulations “set out in a disparate range of legislation and court rules”, it said, and “publicly accessible information on the enforcement of orders made by the family courts” was not easy to find and sometimes written in obscure language.
The Society echoed the Commission’s call for a simplified system that would make enforcement easier by allowing creditors freer access to debtors’ financial information, including bank statements relating to a period of at least three months. Responsibility shouldould be placed firmly on the debtors to demonstrate why could not make the payments ordered.
Financial orders should specify likely methods of enforcement and the potential consequences of failing to pay, the Society stressed. It argued that clear statements of effective enforcement measures could deter “potential ‘won’t pay’ debtors”.
But it questioned the use of coercive measures, as proposed by the Commission, including jail terms, restrictions on freedom of movement, driving bans and curfews.
The Society declared:
“Recent guidance and judgments show that neither the government nor the judiciary believes that imprisoning debtors is a good way to retrieve a debt, or a proportionate punishment.’
This approach would lead to a “quasi-criminal jurisdiction”, said the Society, and the measures would, in any case, rarely be imposed.
“There will be very few cases where a court will be able to impose the sanctions because the effects on a livelihood and dependants are likely to be significant.”
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The Law Society represents solicitors in England and Wales.