Magistrates given teeth to deal with maintenance defaulters

family law

Reading the judgment in the recent case K (Remo -Power of Magistrates To Issue Bench Warrant) took me back to my days as a young solicitor attending the local magistrates’ court every week to deal with maintenance cases. Of course, the advent of the ill-fated Child Support Act swept that all away, passing most child maintenance cases to the dreaded Child Support Agency and its successors.

But the magistrates’ courts do still deal with some maintenance cases. In particular, they still deal with reciprocal enforcement cases, whereby a foreign maintenance order is registered over here for enforcement purposes, as the maintenance payer is in this country. And that was exactly what was happening in this case. A mother in Poland obtained a maintenance order in the Polish court, in 2009. No payments were made by the father and in 2014 the mother, believing the father to be living in this country, applied for the order to be registered and enforced over here, by the Family Court in Manchester.

As is the usual procedure, the Family Court want the father to attend court in order that he can be questioned about his means, so that the court can decide what action to take, for example making an attachment of earnings order. Attempts have been made on several occasions to serve notices of hearing upon him, but these have not so far been successful. Notices have been left at his address, but he has not attended court, and the court is not able to proceed until he has been personally served with the papers, so that it is proved that he has received them. As yet, personal service has not been achieved.

Meanwhile, a problem had been identified. In a number of cases like this the alleged maintenance defaulter fails to attend court, even after personal service. In that situation the court will usually want to issue a warrant for the defaulter’s arrest in order to secure his attendance at court.

However, there was a problem with this. When the Family Court was created by the Crime and Courts Act 2013 it included magistrates’ courts, and thus magistrates are judges of the Family Court. But the Act did away with the power of magistrates’ courts to secure a person’s attendance through a summons and arrest warrant, if necessary. It was therefore not clear whether magistrates sitting as Family Court judges have the power to issue a warrant for the defaulter’s arrest in order to secure his attendance at court.

The matter went before Mr Justice Peter Jackson in the High Court. He found that section 31E of the Matrimonial and Family Proceedings Act 1984, which doesn’t specifically refer to magistrates’ courts, but does refer to the High Court and the county court, provides all judges of the Family Court with the power to issue a warrant to secure attendance. He concluded:

“I would therefore hold that s.31E MFPA 1984 authorises magistrates to issue a warrant to secure the attendance of an alleged maintenance defaulter who fails to appear in response to their summons. This conclusion harmonises with the reality. Magistrates are full judges of the Family Court, performing an indispensable role, and their powers are subject only to the distribution of cases under the allocation rules. Their ability to carry out their work effectively would be stultified if they lacked the power to enforce their own orders for a party to attend before them.”

This has to be the right decision, although it is somewhat concerning that the matter had to go before the High Court to clarify. I suppose it is a result of this slightly strange situation whereby we have a Family Court that may sound like it is a separate entity, but is not physically separate from the rest of the courts system at all. A proper Family Court would surely have its own buildings, separate from other civil and (worst still) criminal courts, and would have its own separate judiciary, that was not split into tiers by reference to an older courts system.

Of course, creating an entirely separate Family Court would cost money, and there is none of that about. For now, we are left with what we have. At least now magistrates know that they have the tools that they need to deal with maintenance defaulters.

And as for the mother in this case, let’s hope that the Manchester Family Court manage to serve the father, and that she at last receives some of the maintenance that she is entitled to.

The full report of the case can be read here.

Photo of the Manchester Civil Justice Centre, home of the Family Court, by John Lord 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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16 comments

Paul - May 18, 2017 at 11:21pm

Lol I rest my case. Witch hunt continues.

John Bolch - May 19, 2017 at 9:54am

So pursuing someone who has failed to obey a court order is a ‘witch hunt’?

What about a mother who has failed to obey a contact order?

Yvie - May 19, 2017 at 10:41am

If child maintenance was set at affordable levels, most dads would pay. My son is divorced and pays the maintenance required of him, he also has a shared residence of one of the children. He earns below the national living wage and consequently he needs financial support from myself and his father. We are 80 and 76 years of age respectively. He has told us he feels a failure that he has to ask someone else to pay his bills, so I can understand that fathers without family support can feel suicidal.

I have no respect for fathers who can afford to pay for their children but refuse to do so.

John Bolch asks what about a mother who has failed to obey a contact order? What about her? She can fail to obey a contact order as many times as she wishes apparently, costing the taxpayer for repeated court attendances. I understand that the courts can take action on this, but do they? Are there any figures supporting action against mothers who fail to obey contact orders?

Can it be more lucrative for a mother to disobey a contact order? I think it can, so many do disobey contact orders. Child support should be based on both incomes so that the majority of paying parents can see that it is fair. This would be helpful to the majority of paying parents and receiving parents. Those that refuse to pay are hopeless cases and I am not going to defend them.

Stitchedup - May 19, 2017 at 10:01am

“What about a mother who has failed to obey a contact order?”
They don’t get pursued, we all know that.

Paul - May 19, 2017 at 10:41am

Thats a very bad example John. Because as we both know nothing happens when young ladys disobey court orders lol. They most certainly would not be ‘persued’

John Bolch - May 19, 2017 at 11:11am

So the courts never take enforcement action against mothers who wilfully disobey contact orders?
(Clue: Read this post: http://www.marilynstowe.co.uk/2015/01/22/enforcing-contact-orders/)

Stitchedup - May 19, 2017 at 11:21am

Yes, and read the comment on that post from Paul Apreda.

Paul - May 19, 2017 at 11:41am

Lol is that an example of courts doing a good job for fathers? After the court order was made it took a YEAR AND A HALF to get any meaningful contact going lol. How many times did she have to breach the order ? How many times did the man have to bring it back to court ? How much did it cost him ? lol an your putting that up as an example of enforcement.
Your advocating actively persueing fathers relentlessly. Taking money from their wages directly and with holding their driving licence ect after one failed payment. No due proccess just straight to enforcement. There is no trial to see if a man can pay or not. The CMS just help themselves.
There is a clear double standard in play here.

Paul - May 19, 2017 at 11:28am

Always one maveric judge deffying the national trend John. Do you really want me to start posting links ?

Yvie - May 19, 2017 at 11:59am

Well spotted John – one case out of the many many cases that are in and out of the family courts with very little action, or more likely no action. Still, every little helps, or so they say.

John Bolch - May 19, 2017 at 4:25pm

And once again we stray off topic… towards the usual ‘biased/corrupt family courts’ agenda.
*sighs*
Simple statement: Dealing with maintenance defaulters (of whichever sex – women can default too) is NOT a ‘witch hunt’.
*rolls eyes and creeps off to a darkened room*

Stitchedup - May 19, 2017 at 5:22pm

And don’t forget to put your tail between your legs.

Paul - May 19, 2017 at 4:52pm

In your opinion John.
In my opinion and a growing number of detractors it very much is a witch hunt.
Family court exploitation of men. How is that off topic ? Maintainace an family law. Are the topic.

John Bolch - May 19, 2017 at 5:47pm

No, you see this is the problem. The topic has nothing to do with men. It is to do with people who disobey court orders. You must break out of this persecution complex.

JamesB - May 20, 2017 at 1:59pm

Perhaps such efforts would be better spent trying to educate and encourage and coerce Pandas to mate.

Andy - May 22, 2017 at 10:30pm

Yet again the law works in favour of the mother who at a drop of the hat claims all sorts of domestic abuse…
I digress, I cannot blame the father not paying as prior comments have proved the courts at will dish out financial punishment and yet if the show was on the other foot what would the courts do if the mother failed to pay…very interesting case..I would most welcome any viewpoint on that one…
Back to the point..If the law gave an opportunity a payment amount would be equal to a living wage so both parents benefited then a would be good but since the incompetent CMS evolved then no wonder fathers take action not because they can’t but just don’t or believe the financial damage that has been imposed on them..and they say quality of life..one big JOKE..where is the quality now..
Hope the judges have a nice little drink after chambers without any concern for the damage they have dished out on a maintenance order…index father..

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