King, R (on the application of) v Bunyon

In deciding whether to enforce maintenance arrears, the court must exercise its discretion to enforce, rather than treating remission of arrears as the starting point. As a matter of ordinary practice, arrears outstanding for more than one year before proceedings should not be enforced absent proper justification. The decision must be based on sufficient evidence of the payer’s present ability to satisfy the arrears. A past ability to pay a nominal sum does not, without more, justify enforcement of a substantial amount. Severe financial hardship and the absence of compelling evidence may justify refusing enforcement.

The appellant appealed by way of case stated from a family proceedings court decision at Totnes. A maintenance order made by a Michigan court had been registered in England. The Justices remitted part of the arrears, varied the order to £1 per annum, and ordered payment of a further £3,000 at £40 per month.

The issues were whether the Justices had been entitled to enforce arrears more than one year old, whether the circumstances justified enforcement, whether they had directed themselves on the correct discretionary question, and whether there was sufficient evidence of present ability to pay.

1. Appeal allowed. The Justices had acted wrongly in enforcing arrears which were effectively more than one year old when the proceedings and hearing were considered. The ordinary practice of the family courts, identified in Bernstein v O'Neill (1989) FCR 79, was relevant to that conclusion.
2. The proper question was whether the court should exercise its discretion to enforce the arrears. The Justices had instead approached the matter as an exercise of discretion to remit arrears. That was a misdirection, consistent with the approach identified in B v C 1995 1 FLR 467.
3. The evidence showed that the appellant was hopelessly in debt and in acute financial difficulty. Nothing compelled enforcement of the arrears in those circumstances. The approach was consistent with C v S 1997 1 FLR 298.
4. The Justices’ finding that the appellant could have paid a nominal amount when the original order was made did not rationally justify enforcing £3,000. Present ability to pay was the material question. There was insufficient evidence that the appellant could properly pay that sum, applying the principle identified in Charilaou v Charilaou.
5. The order made by the Justices on 25 January 2006 was to be discharged. The outstanding arrears were remitted, and the appellant was granted a detailed Legal Aid assessment of her costs.

• High Court (Administrative Court): The appeal by way of case stated was allowed. The decision of the family proceedings court at Totnes was set aside and the order was discharged.
• Family proceedings court at Totnes: The Justices remitted part of the arrears, varied the maintenance order to £1 per annum, and ordered payment of £3,000 by instalments.