BR v SN

A Hadkinson order may be made in Children Act proceedings, but only exceptionally and where six requirements are satisfied. In addition to contempt, deliberate and continuing breach, impediment to justice, absence of another realistic and effective remedy, and proportionality, the order must serve the children’s welfare under section 1 of the Children Act 1989. The court must balance the children’s need for a prompt welfare determination against the unfairness of conducting a trial without equality of arms. Where the children’s circumstances require urgent resolution, a Hadkinson order may be impermissible. Any order must go no further than necessary. A substantial unpaid legal-services payment may justify staying proceedings, but the condition for lifting the stay must be proportionate to the funding required for a fair hearing.

The appellant father appealed from a Hadkinson order made by HHJ O’Neill in the Family Court at Bristol on 19 February 2024. The order prevented him from pursuing his application for a Child Arrangements Order, including a change of residence application, save in relation to schooling, until he paid substantial sums due under a legal services payment order made by Peel J on 18 September 2023.

The father argued that the order was impermissible in Children Act proceedings, that the children’s welfare and the prejudice caused by delay had not been properly considered, and that enforcement proceedings provided the appropriate remedy. The central issues were whether the Hadkinson jurisdiction applied, whether an additional welfare requirement arose, and whether the order was proportionate.

1. Permission and appellate approach. Permission to appeal was granted because the application of Hadkinson orders in Children Act proceedings had not received recent appellate consideration. The appeal was by way of review. The appellate court was required to exercise caution before interfering with a discretionary decision applying correct legal principles.
2. Applicable test. The Hadkinson jurisdiction can apply in children’s cases. The five requirements identified in Mubarak v Mubarak and endorsed in De Gafforj v De Gafforj are that the respondent is in contempt; the contempt is deliberate and continuing; it impedes the course of justice; there is no other realistic and effective remedy; and the proposed order is proportionate and goes no further than necessary.
3. Additional welfare requirement. In Children Act proceedings, the court must also ask whether the order accords with the children’s welfare. This follows from the paramountcy principle in section 1 of the Children Act 1989, since a Hadkinson order may prevent the court from making welfare orders under section 8.
4. HHJ O’Neill was entitled to find contempt, deliberate and continuing non-payment, a serious impediment to equality of arms, no effective alternative remedy, and proportionality in principle. However, she had not directly considered whether the order was in the children’s welfare interests. The original order was therefore set aside.
5. On a rehearing, a limited stay was in the children’s welfare interests. The children’s home and primary care were with the mother, and an unfair trial without representation would risk a flawed welfare determination. There was no urgent safeguarding issue requiring immediate determination. The father was entitled to challenge the welfare evidence if he funded representation for the mother.
6. The condition requiring payment of £235,357 was considerably too onerous. The appeal was allowed and the order replaced by a stay of the father’s Child Arrangements Order application until he paid £30,000, comprising £25,000 plus VAT, to fund the mother’s representation at the five-day hearing. The underlying financial orders remained in force and could be enforced.

• Family Court at Bristol: HHJ O’Neill made a Hadkinson order on 19 February 2024 staying the father’s Child Arrangements Order application, save for schooling, until specified legal-services funding was paid. Permission to appeal was refused.
• High Court (Family Division): The appeal was allowed. The order was set aside and replaced with a more limited stay conditional on payment of £30,000. Permission to appeal the separate schooling adjournment was refused.