DS v HR

A Hadkinson order is an exceptional and proportionate remedy. It may prevent a party from pursuing an appeal where that party is in clear and continuing contempt, the contempt impedes the course of justice, and no other effective means exists to secure compliance.

The doctrine is not confined to identical proceedings. It may extend to related proceedings where the breach and the litigation are intrinsically linked. The court should identify the precise default relied upon and avoid allowing disputed liabilities to obstruct the litigation. In this case, admitted non-payment of child maintenance under a consent order justified striking out the appeal unless arrears and future instalments were paid when due.

The applicant wife sought a Hadkinson order preventing the respondent father from pursuing an appeal in Family Law Act proceedings unless he paid admitted arrears of child maintenance due under a consent order made in separate financial remedy proceedings.

The father had stopped paying maintenance after a costs order arising from related litigation. He argued that the proceedings were legally distinct and that the remedy was disproportionate. The central issues were whether his default was contempt, whether it impeded the course of justice, whether any effective alternative enforcement existed, and whether the doctrine could apply between related rather than identical proceedings.

1. Hadkinson principles. The court applied the principles in Hadkinson v Hadkinson [1952] P 285. A party is ordinarily obliged to obey a court order unless and until it is discharged. Refusal to hear a contemnor is justified only where the contempt impedes the course of justice and no other effective means secures compliance. The jurisdiction must be exercised judicially, sparingly and proportionately.
2. Relevant questions. The court adopted the structured questions identified by Ryder LJ in Mubarak [2004] 2 FLR 932: whether there is contempt; whether it impedes justice; whether another effective means of enforcement exists; whether the contempt is wilful, contumacious and continuing; and what conditions are proportionate. The observations in M v M [2009] 1 FLR 790 and C v C [2011] 1 FLR 434 reinforced the need for restraint and proportionality.
3. The father admitted a clear and continuing breach. He had chosen not to pay maintenance which he could readily afford. That default impeded justice because he was seeking to pursue related litigation while refusing to support his children under a consent order. Enforcement proceedings were unlikely to be effective, particularly because the only identified UK asset was the family home intended for the children.
4. The fact that the maintenance order and the proceedings in which the appeal arose were not identical did not prevent relief. The proceedings were intrinsically linked in the father’s own conduct. The court relied on the flexibility recognised in De Gafforj [2018] EWCA Civ 2070.
5. The condition was confined to undisputed maintenance arrears and instalments, leaving disputed financial liabilities to be resolved through the ordinary appeal process. Unless the sums due on 1 June, 1 July and 1 August, and those falling due on 1 September and 1 October, were paid when due, the appeal would be struck out. The charging order application was adjourned generally with liberty to restore.