AM v RF
[2024] EWFC 288 (B)
BR v SN
13 June 2024
[2024] EWHC 1512 (Fam)
High Court
A dad didn't pay court-ordered money, so the judge stopped him from getting what he wanted for his kids unless he paid. A higher court said the judge should have thought more about what's best for the kids, so it made the dad pay less to continue the case.
Key Facts
- •Application for permission to appeal a Hadkinson order prohibiting the father (BR) from pursuing a Child Arrangements Order (CAO) until he purges his contempt of court.
- •Significant litigation history involving Hague Convention application, jurisdictional disputes, and non-payment of child maintenance and legal costs.
- •Father is from Country A, an entrepreneur; Mother is from Country B, a child-carer.
- •Two children, NM (nearly 12) and MM (nearly 8), are involved.
- •Expert reports (psychologist and ISW) highlight the negative impact of parental conflict on the children.
- •Father's non-payment of Legal Services Payment Order (LSPO) led to the Hadkinson order.
- •Judge O'Neill made a Hadkinson order, prohibiting the Father from pursuing his CAO application except for schooling, until he pays £235,357 in LSPO arrears.
Legal Principles
A court can prevent a litigant in contempt from proceeding with an application until contempt is purged. This is a matter of public policy, only applicable if the contempt impedes justice and there's no other way to secure compliance.
Hadkinson v Hadkinson [1952] P 285
Five requirements for a Hadkinson order: (1) Respondent in contempt; (2) Contempt deliberate and continuing; (3) Impediment to the course of justice; (4) No other realistic remedy; (5) Order proportionate.
Mubarak v Mubarak [2004] 2 FLR 932; De Gafforj v De Gafforj [2018] EWCA Civ 2070
In Children Act cases, a Hadkinson order must also accord with the children's welfare (paramount consideration).
Children Act 1989, section 1(1)
Appellate courts should be cautious when interfering with a first instance judge's discretionary decisions. Intervention is only justified if the conclusion wasn't reasonably open to the court.
Re R (Children) [2016] AC 76
Permission to appeal requires a real prospect of success or another compelling reason.
FPR 2010 Rule 30.3
Outcomes
Permission to appeal granted.
Applicability of Hadkinson orders to Children Act proceedings hasn't been considered since 1952; Peel J's dicta in CD v EF suggests a different test for Children Act cases.
Hadkinson order set aside.
Judge O'Neill failed to explicitly consider whether the order was in the children's best interests; the £235,357 payment requirement was disproportionate.
New, limited Hadkinson order imposed.
A limited order is in the children's best interests, ensuring fairness while allowing the Father to challenge findings. Requires Father to pay £30,000 for Mother's representation.