Husband’s appeal to be struck out unless he pays child maintenance

Children|February 6th 2020

Hadkinson order

I have written here previously on more than one occasion about cases involving ‘Hadkinson’ orders. As I explained before, Hadkinson orders, which are named after a 1952 case by that name, are orders that prohibit a party from taking any further court action until they comply with an earlier order of the court.

In the case DS v HR, which was decided by Mr Justice Cohen last August, but which has only recently been reported on the Bailii website, the wife sought a Hadkinson order barring the husband from proceeding with an appeal in Family Law Act proceedings, unless he made good his admitted default in his payments of child maintenance.

As an aside I would point out Mr Justice Cohen’s comment that the application was made in the context of some of the “least attractive and commercially suicidal litigation” that he had seen for a long while (the amount of the barristers’ fees alone exceeded the sum that was in issue). Sometimes I wish that I had so much money that I could afford to conduct litigation in such a way…

Moving swiftly on, the relevant facts of the case were as follows.

At some point (unless I have missed it, the judgment does not tell us exactly when) the husband consented to an order for child maintenance, in the sum of £5,000 per month for the two children, indexed linked.

In March 2019 Family Law Act proceedings took place in the Central Family Court. The applicant was one of the children of the family. She sought an order excluding her mother’s new husband from the matrimonial home. She was supported in that application by her father, the husband in the present case. The application was opposed by the mother and her husband. The application was dismissed, and the father/husband was ordered to pay to the wife’s husband’s costs, in the sum of £37,000. The father/husband sought to appeal the order for costs.

As soon as the costs order was made the husband stopped paying the child maintenance. As explained by Mr Justice Cohen, he also entered into some “astonishing communications”, effectively saying that he would make the children homeless unless the wife’s husband forewent the order for costs made in his favour.

The wife, therefore, made her application for a Hadkinson order.

Draconian remedy

Mr Justice Cohen found the husband to be in contempt of court, having failed to comply with the maintenance order. The husband admitted this. He had chosen not to pay the maintenance. He is a rich man and could pay easily.

Other than the Hadkinson order, there were no effective alternative means to enforcement. The husband effectively had no assets in this country against which the wife could enforce.

A Hadkinson order may be a very draconian remedy, denying a person the right to seek a legal remedy, but the maintenance arrears were a very small sum of money to the husband, which he agreed to pay to his children. He had no defence whatsoever to the non-payment.

Accordingly, Mr Justice Cohen ordered that unless the husband paid the maintenance that was due in June, July and August, and those sums that would become due in September and October as they fell due, his appeal would be struck out.

As stated, a somewhat draconian remedy, but it is hard to be sympathetic towards the husband, particularly when one learns that he is a solicitor, who should clearly have been fully aware of the possible consequences of his actions. Litigants should obviously not be allowed to pick and choose which court orders they should be bound by. As I have said here so many times before, orders are there to be obeyed, whether you agree with them or not (and here, we must remember, the husband did originally agree with the order).

You can read the full judgment here.

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If you would like any advice on child law, you can find further articles here or please do contact our Client Care Team to speak to one of our specialist children lawyers here. 

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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