Don’t expect much sympathy from the court if you don’t obey its orders

family law

I believe I may have previously written a post here on this subject, but I can’t locate it. However, even if I have, I make no apologies for repeating myself, as this is an important point that all litigants should bear in mind.

When I was practising it was a sad fact that court orders, whether made in the course of proceedings such as to file evidence with the court, or final orders such as to pay money to the other party, were routinely disobeyed. Whether that situation has altered much in the last eight years I don’t know. In 2014 The President of the Family Division Sir James Munby made it clear that from then on family courts would not just expect but demand compliance with orders, although whether that has made much difference I rather doubt. In particular, the rise of the unrepresented litigant may, I suspect, have made non-compliance even more commonplace.

Now obviously there are likely to be consequences for non-compliance with court orders, even if the courts are rather more lenient than many would hope. The consequences normally take the form of penalties or enforcement action, but there is also a slightly less obvious consequence: what if the recalcitrant party then asks the court for something themselves? Is it reasonable to expect a sympathetic hearing of your own application if you are yourself in breach of a previous order of the court?

The question arose recently in the case Assoun v Assoun [No 1], in which a husband sought to reduce a maintenance order, despite not having complied with that order. The case has already been mentioned here, so I’m not going to go into its details, but rather concentrate on the issue of the non-compliance and its effect upon the subsequent application by the non-complying party.

Now the first thing I should say is that in most cases failure to comply with a maintenance order will not preclude that party from applying for a downward variation of the order. In fact, it was my experience that in the vast majority of such applications the applicant had already stopped paying the order, or at least the full amount of the order. It’s really a question of degree and intent. After all, if you are making a genuine application to reduce a maintenance order because you really can’t afford to pay it anymore, then it will not be unexpected that you haven’t been paying the full amount of the order prior to the hearing of your application. On the other hand, if you have been making no attempt to pay anything when you can clearly pay something, then the court is not going to look so favourably upon you.

The second thing to say is that what the court did in Assoun was quite unusual. It made what is known as a ‘Hadkinson Order’, which is an order saying that the applicant cannot proceed with his application at all until he complies with the earlier order. As Sir Ernest Ryder said in Assoun:

“Such an order is draconian in its effect because it goes directly to a litigant’s right of access to a court. It is not and should not be a commonplace … it is a case management order of last resort … where a litigant is in wilful contempt”

In Assoun the court found that the husband had not just failed to pay the maintenance order whilst he had the means to pay, he had wilfully disobeyed other orders of the court, in particular he had failed to give full and frank disclosure of his means, and he had “used every tactical device that he could to frustrate the wife and the English courts”. Sir Ernest Ryder found that given the husband’s “abject and continuing failure to abide by the principles upon which the court’s procedural rules are founded and his actual knowledge of the risk he took”, there were insufficient grounds to establish a procedural irregularity in the process that led to the Hadkinson Order. The Court of Appeal was not therefore prepared to allow Mr Assoun’s appeal against the Hadkinson order.

OK, so Hadkinson orders are rarely seen. That does not, however, mean that just because the court is prepared to entertain most applications made by parties who have not complied with earlier orders the court is necessarily going to be sympathetic towards the applicant. As I said above, it is a question of degree and intent. If the court considers that there is no good reason for the non-compliance (other than to thwart the will of the court) then it is obviously far less likely that the court will give favourable consideration to the application.

It’s really just a question of common sense, but it is a point that is somehow missed by many litigants who seem to consider that court orders are only to be complied with by the other party, not themselves – it is notable that Mr Assoun, whilst showing a “careless disregard” for the court’s orders himself nevertheless was determined to ensure that the wife “complied to the letter with orders made against her”.

The moral is clear: It’s not one law for them and one law for you. If you expect the court to treat you well, then you must also comply with its orders.

Photo by J E Theriot via Flickr under a Creative Commons licence.

John Bolch

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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7 comments

Paul Apreda - April 5, 2017 at 4:00pm

I’m so sorry John but again I fear this is typical of ‘Bolchism’ – a patronising perspective that sees ‘litigants’ as the problem and Courts as long suffering innocent parties dispensing justice even handedly.
Here are the facts on enforcement of Private Law orders
2011 – applications for enforcement = 2150
– orders for enforcement = 38
– percentage enforced = 1.76%
2015/16 * – applications for enforcement = 5937
– orders for enforcement = 70
– percentage enforced = 1.18%
Courts cannot be taken seriously when these are the MoJ’s own statistics. Applications for enforcement have risen almost 3 fold yet the percentage enforced has fallen – even from its sub 2% level.
The cold winds of reform are coming. The Government Green paper on Family Justice has been shared in its first draft form at the FJB meeting in March.
We are looking for a case to take HMCTS to Court under consumer legislation for failing to provide a service of sufficient quality. It would be an interesting case no doubt.
Could we interest you in coming out of retirement to take that on John? 😉

Brian - April 6, 2017 at 7:20pm

A relative of mine made an application for occupation of a tenancy which was adjourned at the directions hearing to be co-heard with a MCA 1973 s(25) hearing – the FA 1996 s (33) occupation hearing was never heard…poor service enough to do what you suggest? What you are suggesting is bringing the judiciary to account, the only thing that brings the judiciary to account is the appeal process. We all know what a lottery that is – someone today lost a case at the supreme court whose position upheld at the high court on appeal from a magistrates over the meaning of the word “regularly”. Apparently regularly has no temporal aspects – only a regulatory or rule based one and for that, that particular person is going be educated that for sure when his original case gets reheard at the magistrates with the new definition of “regularly”. I hope it’s nuanced enough to apply only in educational cases!!! It’s hard enough to get access to children regularly in the child arrangements sense without that word’s meaning muddying the water even more!!!! Jurisprudence – the ability to transcend the word of the law and apply where wishy washy opportunity arises to get the outcome based not on what was written but what is best governance for all (in other words – whatever you want)…and I though the president of the supreme court gave a speech the other week about upholding the law, not making it up – on an unwritten subject (constitutional law too)….you can’t make it up, that’s the job of the supreme court!
(*Comment moderated – please see policy here).

Andrew - April 5, 2017 at 5:49pm

It should be as dangerous to disobey an order for contact as it is to break a non mol. But it isn’t. Is it?

Stitchedup - April 5, 2017 at 8:38pm

IMHO Andrew it should be more serious. My rational for this is as follows:
The family courts claim that the welfare of the child is paramount. Therefore, abusing a child by denying contact with the father should trump “talking” to the ex or sending a harmless text.
Secondly, denial of contact, particularly through parental alienation, is a premeditated, planned, and sustained attack on the rights of the child and father. Breaches of non-mols are very often harmless, spontaneous and rarely affect any children involved.
Thirdly, non-mols are often served on men, ex-parte, and without a shred of evidence of any genuine domestic abuse / violence. Breaches are very often the result of something, which in normal circumstances, would not be considered unreasonable let alone crime. Denial of contact is often deliberate, immensely damaging, and abusive to the point of life threatening to the father who could be driven to the depths of depression and possibly suicide. I could go on….

Stitchedup - April 5, 2017 at 9:04pm

Another point that John conveniently missed is the disproportionately and absurdity of many non-mols which seek to prevent, men in general, doing something that in normal circumstances is considered a basic human right, I.e freedom of speech and expression; often on the basis of no evidence and the flimsiest of allegations. The absurdity actually makes it difficult for men to take seriously and gauge what is reasonable or not. I’ve not actually been proven to have done anything but I’m denied the basic human right of talking to the mother of my children and somebody I’ve been in a relationship with but never laid a finger on.

Brian - April 6, 2017 at 6:57pm

This is a subject related to whom the court allows to be treated as suckers. Now, a party to proceedings can and generally does treat the other party/parties like suckers. The party generally known to do that is often called the respondent, (an applicant can’t treat others like suckers, the applicant’s version is called a ‘vexatious application”). Treating an applicant as a sucker is one thing, that won’t change and I can’t see the court doing anything about that any time soon. Treating the court like a sucker is something else entirely – finally the court has cottoned on that it is being treated like an idiot and has lost it’s patience by LJ Mumby’s “zero tolerance” to being “messed around”, messing around is different from Ignorance. I can’t see courts being draconian over a misunderstanding. If they are going all out for drawing a line in the sand it’ll only ever be towards the litigant who isn’t a primary carer because of CA s(1)(1).

Brian - April 6, 2017 at 7:32pm

It’s also right that an order requiring the cooperation of two parties, both parties have a ‘line to toe’ – comes down to willingness and goodwill, something that is scarce from legal proceedings. Means one party to swallow their pride and take the losing end of the stick pill when the other party only plays women’s hockey – not cricket (I choose the metaphor of women’s hockey because if you ever watch it, women’s hockey is frighteningly ruthless!).

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