Hadkinson Orders and HR v DS [2019] 2425 (Fam)

If an individual is in breach of a court order, for example to pay the other party a sum of money, the court has discretion to refuse to hear them by making what is called a ‘Hadkinson order’. This means that they can be prevented from pursuing a further application until they have complied with the order that they are in breach of. On hearing an application for a Hadkinson order, the court will consider:

• whether the respondent is in contempt of court
• whether there is any impediment to justice
• if there is any other effective means of securing compliance
• whether it should exercise its discretion to impose conditions, having regard to whether the contempt is wilful
• and if so, what conditions would be proportionate

As this is such a draconian measure, a Hadkinson order should be a last resort and discretion exercised judicially, sparingly and proportionately.

 In the recent case of HR v DS [2019] 2425 (Fam), the court granted a Hadkinson order which barred the husband/father from proceeding with an appeal against a costs order made in Family Law Act proceedings, unless he discharged outstanding child maintenance payments. The judge commented that this was ‘made in the context of some of the least attractive and commercially suicidal litigation that I have seen for a long while’.

A few months earlier, there had been Family Law Act proceedings involving an application by one of the parties’ children for an order excluding their mother’s new husband from the family home. This application was supported by the children’s father. The application was dismissed and the father was ordered to pay the mother’s new husband’s costs in the sum of £37,000, the judge having seen the father’s hand behind the litigation. The father appealed the costs order and it was listed for a later hearing.

By way of background, 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 index linked.

As a direct result of the costs order being made in the Family Law Act proceedings, the father stopped paying child maintenance and told the mother that he would make her and the children homeless unless her new husband would forgo the order for costs. The mother therefore applied to the court for a Hadkinson order to bar the father from proceeding with his appeal against the costs order unless he made good the default in child maintenance payments.

The judge found that the father was in contempt as he chose not to pay child maintenance when he could easily afford it, and that this was an impediment to justice. The judge also found that there was not an effective alternative means of enforcement as the father had no assets in the jurisdiction apart from the former family home in which the mother and children were living.

The father sought to argue that the proceedings were not the same and therefore a Hadkinson order should not be made. The judge disagreed, stating that ‘it is quite clear in the father’s mind that these two sets of proceedings are intrinsically linked’, and that he had stopped paying child maintenance as a direct result of the costs order being made against him.

This case is interesting as usually a Hadkinson order will be sought in proceedings which are the same. This may have been the first time in which the Hadkinson principle has been extended to cover proceedings which are not identical, albeit related.