Court Extends Application Of Hadkinson Orders

The recent case of HR v DS [2019] EWHC 2425 (Fam) appears to have extended the availability of the Hadkinson order in the family court.

The basics of a Hadkinson order application

A Hadkinson order prevents a party pursuing an aspect of their case, or their case at all, unless they remedy their continuing and deliberate contempt.

In the case of Hadkinson v Hadkinson [1952] 2 All ER 567, a mother had removed the parties’ son from the jurisdiction without the father’s consent and in breach of a prior order. She was ordered to return to the jurisdiction upon the father’s application. She failed to do so and instead applied to appeal the return order. The father’s position was that the appeal should not be heard as the mother had been at all times, and still was, in contempt by failing to return to the jurisdiction. The court of appeal accepted the father’s position although made clear that:

1. refusing to hear a party to a cause could only be justified by great considerations of public policy;
2. it is a step that a court would only take where the party impedes the course of justice; and
3. there is no other effective means of securing compliance.

Lord Denning made clear in his judgement that the fact that a party had disobeyed an order was not of itself a bar to being heard. However, if the disobedience was such that, so long as it continued, impeded the course of justice in the proceedings, by making it more difficult for the court to ascertain the truth or to enforce the orders which it might make, then the court might in its discretion refuse to hear from that party until the impediment was removed.

The questions that need to be considered by a court before which a Hadkinson application is made were set out in Assoun v Assoun [No 1] [2017] EWCA Civ 21 (endorsing the earlier decision in Mubarak v Mubarik [2004] EWHC 1158 (Fam)):

(a) Is the [respondent] in contempt?

(b) Is there an impediment to the course of justice?

(c) Is there any other effective means of securing compliance with the court’s orders?

(d) Should the court exercise its discretion to impose conditions having regard to the question:

(e) Is the contempt wilful (i.e. is it contumacious and continuing)?

(f) If so, what conditions would be appropriate?

The wife in this case was seeking to restrict the husband from applying to vary down or discharge a periodical payments order until arrears which had accumulated were discharged.

The court also made clear in Assoun that a Hadkinson order is draconian in its effect because it goes directly to a litigant’s right of access to a court. Orders are not, and should not, be commonplace and it is a case management order of last resort in substantive proceedings (for example for a financial remedy order) where a litigant is in wilful contempt rather than a species of penalty or remedy in committal proceedings for contempt.

HR v DS [2019] EWHC 2425 (Fam)

The facts of the case were that the parties’ daughter, supported by her father, had applied for an occupation order under the FLA 1996 to exclude her mother’s new husband from the family home. That application failed and the father, who was a party to the proceedings as trustee of the trust in which the family home was held, was ordered to pay the new husband’s costs in the sum of £37,000. The consequence of this was that the father ceased paying the mother child maintenance agreed in the sum of £5,000 per month. He also sought permission to appeal the costs order.

The mother applied for a Hadkinson order preventing the father pursuing his appeal until he had discharged the child maintenance arrears.

Cohen J described the wider context of the father’s case as “some of the least attractive and commercially suicidal litigation that I have seen for a long while.” Not a great start for the father.

The correspondence from the father, who lived in the UAE, showed that the only UK asset against which enforcement of the costs order, or indeed the maintenance, could be made was the home in which the ex-wife and the children lived, which was to pass to the children upon their majority. As a consequence, there was no other effective method of enforcement without depriving the children of their asset in order to meet the husband’s default.

The husband argued that the proceedings were not the same. The Hadkinson order was sought in Family Law Act proceedings and the maintenance order was made in financial remedy proceedings. It was argued that the Family Law Act proceedings were a case brought by the daughter against her stepfather and the proceedings which the mother was seeking to restrict arose out of an order made against the father in favour of the new husband.

However, Cohen J found that it was quite clear in the father’s mind that the two sets of proceedings were intrinsically linked, and it was directly as a result of the outcome in the FLA 1996 hearing that he had chosen not to pay the money due pursuant to an order in the financial remedy proceedings.

The case is believed to be the first time in which the Hadkinson principle has been extended to cover proceedings which are not identical, albeit related. While, by their nature, successful Hadkinson applications will be rare, they remain a useful weapon in the family court’s arsenal which, following HR v DS have a broader application to related proceedings.