Russell v Reilly

On an appeal concerning enforcement of maintenance arrears, the High Court will not interfere with a district judge’s discretionary decision unless it contains a significant error of law or approach, or falls outside the reasonable range of decisions available. The court’s practice of limiting enforcement of stale arrears is a practice, not a rule, and must be applied in light of the circumstances. A subsequent deterioration in the debtor’s finances may justify considering variation, but does not automatically require further remission or a reduced repayment rate. The court must balance the debtor’s means against the need to make repayment meaningful to the creditor.

The mother appealed against an order made by Deputy District Judge Simpson on 3 May 2013 concerning substantial maintenance arrears owed by the father. The order remitted most of the arrears and required payment of £23,400 at £650 per month. The father sought permission to appeal out of time, but his application was treated as an application to vary the order because of an alleged subsequent deterioration in his financial circumstances. The central issues were whether the deputy district judge had erred in remitting the arrears and whether the remaining liability or repayment rate should be reduced.

1. Appeal and variation application. The mother’s appeal and the father’s deemed application to vary were dismissed. The father’s application for permission to appeal was refused, but was treated as an application to vary on the basis of subsequent change of circumstances. The order was corrected under Family Procedure Rules 2010, rule 29.16, to record the correct date.
2. Appellate restraint. The decision under appeal contained no significant error of law or approach and fell within the band of reasonable discretionary decision-making available to a district judge. The High Court therefore declined to interfere with it.
3. Stale arrears. There is a longstanding court practice that enforcement of arrears which are more than about 12 months old may be limited. The judge expressly characterised this as a practice rather than a rule. Its application depends on the circumstances, including the age of the child, the parties’ current situations and the debtor’s realistic ability to pay.
4. Assessment of the order. The deputy district judge had rationally considered the father’s financial position, the uncertain viability of his legal-aid practice and the mother’s claim to enforcement. Remitting a substantial proportion of the arrears and fixing repayment over three years was an intelligible exercise of discretion.
5. Further variation. The father’s financial difficulties did not justify further remission or reducing the monthly instalment from £650. A lower rate would extend repayment so far into the future that the obligation would become almost meaningless to the mother. The order recorded that the enforceable arrears had reduced from £23,400 to £21,450 after three payments.

1. High Court (Family Division): Permission to appeal was granted by Mr Justice Peter Jackson. Mr Justice Holman dismissed the mother’s appeal against the order of Deputy District Judge Simpson and dismissed the father’s deemed application to vary.
2. Deputy District Judge: On 3 May 2013, Deputy District Judge Simpson remitted most of the arrears and ordered repayment of £23,400 at £650 per month.