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Little Dorritt and the Human Rights Act

Date:19 NOV 2014
There’s contempt of court, and then there’s contempt for those who don’t pay maintenance for their families. And it’s this category of miscreant who seem to be caught in a Dickensian time warp.

Contempt of court is a relatively well known remedy and we’ve all used it at some time in our careers when our well behaved clients have turned to us for the fourth time in their divorce and said: Yes, but how do we get my wife/husband to do what they’ve been ordered to do? Why are we letting them run rings round us – again? And we mumble something about contempt proceedings, and our hearts sink as we check the very exacting procedure and get on the phone to the process server.

Never mind those well publicised cases like Young v Young [2013]EWHC 34 (Fam), [2014] 1 FLR 269 contempt proceedings are still alive and well in this jurisdiction. And rightly so if our whole legal structure is not to be brought into disrepute.

Look at the recent case of Button v Salama (No 2) [2013] EWHC 2972 (Fam), [2014] 1 FLR 479 where the father refused to comply with an order directing him to disclose the whereabouts of a child. A just and appropriate outcome, particularly when the high stakes are factored in. But then the court has to be prepared for litigants who refuse to comply with the orders even from the discomfort of their prison cells. Once it’s been demonstrated that coercion is not going to work, how does the court respond?

Scott Young didn’t 'give in' to the pressure and eventually there was a financial trial where Mr Justice Moor pieced together the financial evidence before him and made an order requiring Mr Young to pay £20m. An order that Mr Young has yet to obey but, because this was a lump sum order and not an order for maintenance, Mrs Young and her advisers do not have the option of threatening Mr Young with a return to prison. All she can do is keep a watchful eye on his movements and pounce on any assets that may come to light or that he may acquire in the future. Recently she’s sought the help from an ex-CIA man, so far with no success.

So contempt proceedings are not unknown in family courts although judges are careful not to send litigants to prison on a whim. Taking away someone’s liberty is a very serious issue causing much prior judicial scrutiny of proper process, and second chances.

Incidentally, the benighted souls who do end up in prison never seem to be the mothers in breach of contact order after contact order, notwithstanding the enormously damaging consequences to the children that simply cannot be measured in monetary terms. Why is that viewed entirely differently from, say, the behaviour of the father in Button v Salama (No 2) where children’s welfare was at the heart of the case and viewed so seriously? Welcome to the double standards that operate in the family court.

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What about judgment summonses?

They have survived the Victorians’ realisation that debtors’ prisons such as the fictional Marshalsea described in Dickens’ Little Dorrit, are simply not civilised. The Debtors Act of 1869 significantly limited the ability of creditors to see debtors put in prison for non-payment of debts. There were still exceptions but these were further limited by section 11 of the Administration of Justice Act 1970. So what’s left? In effect some State imposed debts (taxes, unpaid fines) and orders for maintenance in family cases.

So prison is only an option now for those who are in breach of maintenance orders, not other civil debts. Not someone who’s taken a vulnerable person’s savings and refused to repay them. Not a large successful business that’s forced another into liquidation by refusing to pay its debts. But arrears of maintenance have been put in an entirely different category.

Until the Human Rights Act 1998 came into force, debtors served with a judgment summons were in the unenviable position of being imprisoned if they failed to attend to be cross-examined as to their financial position, yet the evidence could then be used against them to establish whether they had, or had had at the time the order was made, the means to comply. Now debtors in those circumstances can no longer be forced to incriminate themselves and the creditor (usually the wife) has to prove her case to the criminal standard. The prison sentence cannot exceed 6 weeks but, of course, if the debtor is unable to pay the arrears that post-date the judgment summons, the wife can start the procedure all over again.

So what if he cannot afford to pay, notwithstanding a judgment in the financial proceedings saying that he can? He then comes up against the rule in Hadkinson v Hadkinson [1952] 2 All ER 567 which creates another conundrum for the debtor.

In that case Lord Denning said:

'… it is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by great considerations of public policy … I am of the opinion that the fact that a party to a cause has disobeyed an order of the court … then the court may, in its discretion, refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.'
So an order has been made by the court whereby a husband (as it usually is) has been ordered to pay maintenance to the wife and is also in breach of other court orders. This can block an appeal or application to vary the original maintenance order if Hadkinson is invoked. So we’re looking at a situation where an order has been made by the judge on the balance of probabilities that the husband should pay a sum of money. The husband says that he can’t afford to do so but is unable to appeal the original decision. The arrears build up, the wife takes out a judgment summons and he ends up in prison. William Dorrit back in the Marshalsea and it’s 2014 not 1855.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.