Reading the judgment in the recent case K (Remo -Power of Magistrates To Issue Bench Warrant) took me back to my days as a young solicitor attending the local magistrates’ court every week to deal with maintenance cases. Of course, the advent of the ill-fated Child Support Act swept that all away, passing most child maintenance cases to the dreaded Child Support Agency and its successors.
But the magistrates’ courts do still deal with some maintenance cases. In particular, they still deal with reciprocal enforcement cases, whereby a foreign maintenance order is registered over here for enforcement purposes, as the maintenance payer is in this country. And that was exactly what was happening in this case. A mother in Poland obtained a maintenance order in the Polish court, in 2009. No payments were made by the father and in 2014 the mother, believing the father to be living in this country, applied for the order to be registered and enforced over here, by the Family Court in Manchester.
As is the usual procedure, the Family Court want the father to attend court in order that he can be questioned about his means, so that the court can decide what action to take, for example making an attachment of earnings order. Attempts have been made on several occasions to serve notices of hearing upon him, but these have not so far been successful. Notices have been left at his address, but he has not attended court, and the court is not able to proceed until he has been personally served with the papers, so that it is proved that he has received them. As yet, personal service has not been achieved.
Meanwhile, a problem had been identified. In a number of cases like this the alleged maintenance defaulter fails to attend court, even after personal service. In that situation the court will usually want to issue a warrant for the defaulter’s arrest in order to secure his attendance at court.
However, there was a problem with this. When the Family Court was created by the Crime and Courts Act 2013 it included magistrates’ courts, and thus magistrates are judges of the Family Court. But the Act did away with the power of magistrates’ courts to secure a person’s attendance through a summons and arrest warrant, if necessary. It was therefore not clear whether magistrates sitting as Family Court judges have the power to issue a warrant for the defaulter’s arrest in order to secure his attendance at court.
The matter went before Mr Justice Peter Jackson in the High Court. He found that section 31E of the Matrimonial and Family Proceedings Act 1984, which doesn’t specifically refer to magistrates’ courts, but does refer to the High Court and the county court, provides all judges of the Family Court with the power to issue a warrant to secure attendance. He concluded:
“I would therefore hold that s.31E MFPA 1984 authorises magistrates to issue a warrant to secure the attendance of an alleged maintenance defaulter who fails to appear in response to their summons. This conclusion harmonises with the reality. Magistrates are full judges of the Family Court, performing an indispensable role, and their powers are subject only to the distribution of cases under the allocation rules. Their ability to carry out their work effectively would be stultified if they lacked the power to enforce their own orders for a party to attend before them.”
This has to be the right decision, although it is somewhat concerning that the matter had to go before the High Court to clarify. I suppose it is a result of this slightly strange situation whereby we have a Family Court that may sound like it is a separate entity, but is not physically separate from the rest of the courts system at all. A proper Family Court would surely have its own buildings, separate from other civil and (worst still) criminal courts, and would have its own separate judiciary, that was not split into tiers by reference to an older courts system.
Of course, creating an entirely separate Family Court would cost money, and there is none of that about. For now, we are left with what we have. At least now magistrates know that they have the tools that they need to deal with maintenance defaulters.
And as for the mother in this case, let’s hope that the Manchester Family Court manage to serve the father, and that she at last receives some of the maintenance that she is entitled to.
The full report of the case can be read here.