Sarah Hughes, Solicitor
Family Law Journal - August 2010
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Hadkinson v Hadkinson (1952) 2 All ER 567 concerned a mother who, following the conclusion of her divorce proceedings, remarried and removed the child of the family to Australia. This was in breach of an Order made during the course of the proceedings that the child not be removed without leave of the Court. The Court ordered that the mother return with the child immediately. However, instead of returning to the UK, the mother appealed against the Order. The father argued that the Court should not hear the mother’s appeal whilst she remained in Australia because she was in contempt of court and the appeal should only be heard once she returned to the UK and was no longer in contempt.
The Court of Appeal, led by Denning LJ (as he was then), found in favour of the father and held that, where a party has disobeyed an order and is in contempt of Court, the court has the discretion to refuse to hear their application.
When giving the judgement the Court laid down the following principles:
- The fact that a party has disobeyed an Order of the Court is not itself a bar to the Court hearing their application.
- The contempt will only suffice if:
- It impedes the course of justice; and
- There is no other effective means of securing their compliance with the Order.
- The Court’s power to refuse to hear the application is discretionary.
- The discretionary power can only be exercised until the impediment is removed or the party shows that there is good reason why it should not be removed. In other words, the contempt must be wilful and continuing for the discretion to arise.
An Order in these terms is now commonly referred to as a ‘Hadkinson Order’ and has since been used, not only in the family law context of a parent who has unlawfully removed a child from the jurisdiction, but also where there has been a failure by one party to meet their obligations under an Order for periodical payments and/or a lump sum payment and the paying party subsequently applies to vary the terms of the Order.
In his judgement, Denning LJ warned ‘…it is a strong thing for a court to refuse to hear a party to a cause and it is only to be jusitified by grave considerations of public policy’. So practitioners should think very carefully before applying to the Court for such an Order, particularly as the costs of such an application will be borne by the party who is unsuccessful. However, this can be a very useful tool against a willful non-payer and may need to be considered more frequently in the current economic climate, as an increasing number of variation cases find themselves at the door of Court.
One case in which a Hadkinson Order famously featured is Mubarak v Mubarik (2006) EWHC 1260 (Fam), a case which should be well known to practitioners due to the fact that it has spanned over a decade and been described as one of the longest running and most bitterly fought divorce cases in England. The ancillary relief proceedings were concluded as far back as 1999 when it was ordered that Mr Mubarik should pay Mrs Mubarak a lump sum of £4.8m, with periodical payments payable until the lump sum was paid. Mr Mubarik refused to comply with this Order. A series of applications then followed, including one by Mrs Mubarak seeking the imprisonment of Mr Mubarik for contempt of court and one by Mr Mubarik to reduce the periodical payments, and in 2006 Mrs Mubarak returned to Court to try and enforce payment of the original Order.
In 2006 the £4.8m lump sum remained unpaid and there were periodical payment arrears of £361,000. Mr Mubarik had unilaterally reduced the level of periodical payments over the years, then had stopped paying altogether. One of the preliminary applications by Mrs Mubarak was for a Hadkinson Order that debarred Mr Mubarik from participating in the 2006 proceedings until he had fully complied with terms of the original order by paying both the lump sum and the periodical payment arrears.
It was argued by Mr Mubarik’s Counsel that such an Order could not be made because the non-payment must not only be willful but ‘culpable’ and this must be proved to a criminal standard ‘beyond all reasonable doubt’. However, this argument was rejected by the Court, referring to Leavis v Leavis (1921) P.299 and Baker v Baker (No.2) (1997) 1 F.L.R 148 where the Court held that the non payment in itself was sufficient to establish a breach and that the civil standard sufficed because a finding of contempt would not mean that the non-paying party is automatically debarred from the proceedings, just that the Court is then able to use its discretion to impose conditions, as it sees fit. The fact that the payment was ‘willful’ would be considered when deciding how to exercise the Court’s discretion.
It was also argued on behalf of Mr Mubarik that a Hadkinson Order could not be made against a Respondent to an application (ie. as a sword) as this would result in the hearing taking place in the absence of the Respondent and could only be used against an Applicant (ie. as a shield) to stop the hearing taking place at all. It was argued that to do so would be contrary to Mr Mubarik’s rights under Article 6 of the European Convention. However, the Court rejected this argument citing the cases of Motorola Credit Corporation v Uzan (No.2) (2004) 1 WLR 11 and Baker v Baker (No.2) (above) in which the Court held that, providing such an Order and any conditions made were proportionate and in the public interest, the making of a Hadkinson Order against a Respondent to an application was not in breach of Article 6.
After considering the above, and finding against the husband on all arguments, the Court made a Hadkinson Order which required Mr Mubarik to take various steps before being allowed to participate in the proceedings further. These conditions included the requirement that Mr Mubarik notify the Jersey Trust to give effect to the Order of 1999 and any subsequent orders of the Court, and also that for every pound paid towards his legal team a further pound should be paid into a joint account in the names of the parties solicitors. It was considered that such conditions did no more than give effect to the original order and moderate Mr Mubarik’s ability to fund a ‘Rolls Royce legal team’ thus ensuring that Mrs Mubarak was not unduly disadvantaged by this. It was only the latter condition which required Mr Mubarik to find funds and the conditions were not intended to punish or penalise Mr Mubarik, so they were considered compliant with the European Convention.
A Hadkinson Order also featured in the case of Laing v Laing (2005) EWHC 3152 (Fam) where, after a 24 year marriage, the parties agreed in 2000 that as part of their financial settlement the husband would pay the wife joint lives maintenance in the sum of £22,500 per annum index linked. In return the wife’s further claims for capital were dismissed. A penal notice was attached to the Order and the Husband made the payments for the first four years, until his retirement. However, shortly after the husband retired in 2004 he wrote to the wife unilaterally terminating his payments and requesting a refund for the last two payments made. The termination of the maintenance left the wife in significant financial difficulties and with a mortgage to pay, whilst the husband was living in a mortgage free property and had received substantial capital and income that had not been disclosed at the time the agreement was reached. Six months later, the Husband applied to the Court for a downward variation of the maintenance. The Court held that the husband had to pay the wife arrears of maintenance in the sum of £13,000 and then make reduced periodical payments in the sum of £1,000 a month as a condition of him being able to continue his application for downward variation.
The husband appealed this decision but this was refused. The Court found that, at the time of retirement, the husband had the funds to pay the maintenance and was therefore in wilful and continuing contempt of court, which had impeded the course of justice by depriving the wife of the funds that she would need to be able to issue a judgement summons and/or defend his application for downward variation. The Court rejected the husband’s argument that Hadkinson only applied to non-capital payments. The Court also approved the approach of the Court at first instance by ordering the full arrears but only a reduced rate thereafter to be paid whilst the application was heard, as this was seen to strike a compromise between the wife’s entitlement and the possibility of a reduction in the future payments due.
The Court emphasised that its powers were discretionary and that it was up to the Court to decide the extent by which the applicant’s right to proceed with the application would be fettered and what conditions ought to be imposed. The fact that the husband may have had a legititmate argument did not mean that he was unilaterally able to vary his obligations, when he had the resources to meet them, until the Court decides otherwise. It is the Court’s decision, not the payer.
It was clear in this case, as it was in Mubarak, that the husband had the resources available to meet his obligations under the original Order and that this was a key factor for the Court when exercising its discretion. It is therefore very important to fully investigate the financial means of the wilful non-payer as far as possible before proceeding with an application for a Hadkinson Order.
What is also clear in both cases is that careful consideration should be given to the conditions to be imposed in order to ensure that they are proportionate and European Convention compliant. In Mubarak this was achieved by paying what was intended under the original order up until the present application, and for a ‘fighting fund’ for the wife to be established to ensure she was not disadvantaged by the husbands superior legal team. In Laing this was achieved again by requiring the arrears to be paid up until the date of the present application and a reduced rate thereafter. It therefore seems that the Court is keen to return the position to what it would have been had the paying party complied with their obligations but thereafter to recognise the fact that further applications are pending which may affect payments in the future.
In Laing the fact that the wife could not afford to wait until the outcome of the variation application was also an important factor, as was the fact that the wife needed a ‘fighting fund’ in Mubarik, so before issuing any applications for a Hadkinson Order the resources of the client should also be carefully considered.
One other important thing to consider is whether or not there is any ‘other effective means of securing compliance’ as the Court’s will only bar a party from proceedings, or impose conditions, if there is no other way by which that party can be forced to comply ie. enforcement of periodical payments by way of attachment to earnings.
This was seen more recently, in the case of M v M (Maintenance Pending Suit: Enforcement: On Dismissal of Suit) (2008) EWHC 2153 (Fam) where the husband applied to either discharge an Order requiring him to pay maintenance pending suit or for an Order declaring that the payments should not be enforced. In response, the wife applied for a Hadkinson Order debarring the husband’s application from being heard until he complied with the terms of the maintenance order. This case has been approved by the Court of Appeal, Moore v Moore (2009) EWCA Civ 1427 (Court of Appeal).
In this case, the husband had issued a divorce Petition in the Nigerian Courts and there had been pronouncement of Decree Nisi. The wife then issued a Divorce Petition in England and obtained an order for maintenance pending suit, which the husband never complied with. The wife later agreed to allow her Petition to be dismissed and for the proceedings to take place in Nigeria. However, there were arrears owed to the wife of over £200,000 under the maintenance pending suit order in England, so the wife obtained a Charging Order and Order for sale over an English property beneficially owned by the husband. The husband argued that he should not be required to make any payments as the Court should not have had jurisdiction. The Court rejected this argument saying that if the maintenance had already been paid, the Court would not have ordered them to be refunded. The husband was in contempt of Court. However, the Court did not allow the wife’s application for a Hadkinson Order debarring him from participating in the proceedings because the wife had other means by which she could secure the money and had already done so by obtaining a Charging Order and an Order for sale against his property.
This case is good as an example as to why practitioners should not automatically opt for a Hadkinson Order and should consider all other means of enforcement first. A Hadkinson Order can be a useful tool, but is not to be used unless the case is exceptional and unusual as in Mubarak and Laing.
In the current economic climate the availability of a Hadkinson Order is an important tool for practitioners to be aware of and one which all client’s should be advised of where there has been a breach of a previous court Order, whether for payment of maintenance, payment of a lump sum, or compliance with another term of Court Order ie. removal of a child (as in Hadkinson), and further Court proceedings are likely. It is something which client’s should be advised of whether they are the one in breach or whether they are the one affected by the breach and it is also something which, if applied for in the right circumstances, can be very effective. However, all practitioners should give careful consideration to the above before applying for such an Order and any conditions sought must be proportionate to pass the European Convention test.
Sarah Hughes is a Solicitor in Anthony Gold's Family & Divorce Law department. For further information email Sarah or call 020 7940 4000.
This article was published by Family Law (a publishing imprint of Jordan Publishing Ltd) in the August 2010 issue of the journal Family Law.
