Application of the Hadkinson Order extended in the family court

12th March ‘20

A Hadkinson Order is a remedy that can be vital in the right circumstances to prevent a party pursuing an aspect of their case, or their case at all, unless they rectify their continuing and deliberate contempt. This powerful and useful measure should only be used as a last resort in substantive proceedings and exercised judiciously, proportionately and when another method of enforcement is unlikely to be effective.

The recent case of HR v DS [2019] EWHC 2425 (Fam) is believed to be the first time in which the Hadkinson Order has been extended to cover proceedings which are not identical, albeit related.

HR v DS [2019] EWHC 2425 (Fam) – The Facts

The case concerned a husband and wife who had separated some time before these proceedings. A consent order had previously been made in settlement of the parties’ financial arrangements on divorce. This included an order for child maintenance for the parties’ two children of £5,000 per month (index linked).

The former wife had gone on to remarry and lived with her new husband in the family home, which was held in trust, and was to pass to the children upon their majority.

The current application before the court was pursuant to the Family Law Act (FLA), whereby one of the children had applied to oust her mother’s new husband (her stepfather) from the family home. The child was supported in that application by her father. The application was opposed by the mother and her new husband. Ultimately that application was without jurisdiction and dismissed and the father was ordered to pay the new husband’s costs in the sum of £37,000.

From that point, the father ceased paying the child maintenance agreed and sought to appeal the costs order. The mother applied for a Hadkinson Order to prevent the father from pursuing this appeal until he had discharged the child maintenance arrears.

The father wrote to the mother on separate occasions threatening to sell the property should the new husband seek to enforce the costs order against him. In essence the father’s actions (since it was the only asset in the UK) would make the mother and the children homeless while at the same time depriving the children of the asset. Enforcement in this manner would not be effective for the mother and would not ensure the father’s payments in respect of child maintenance.

Decision

Mr Justice Cohen carried out a review of the legal authorities and concluded that it would be fair to grant a Hadkinson Order in the Family Law Act proceedings, notwithstanding that the father’s breach arose pursuant to the consent order in the financial proceedings, on the basis that the two sets of proceedings were linked: the father had stopped paying child maintenance as a direct result of the costs order being made against him. It was emphasised that a Hadkinson Order was a flexible remedy that could be applied to the current situation.

You can read the full judgment here.

If you would like advice on this article or on separation or children generally please contact Alex Anastasiou on 020 3988 2025 or email aa@calibrate-law.com. Alex is a Senior Associate who specialises in family law.

This post is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice. Please speak to a member of our team.

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