In a recent family case, reviewed in this article by senior associate Fawn Wilkinson, the appellant father sought permission to appeal a Hadkinson Order made by Her Honour Judge O’Neill. A ‘Hadkinson Order’ prevents a party who has failed to comply with a court order (or is otherwise in contempt) from making an application until they have remedied their non-compliance.

In the case of BR V SN [2024] EWHC 1512 (Fam), the Hadkinson Order prohibited the father from pursuing his application for child arrangements orders (including in relation to a change of residence) in respect of his two children until he purged his contempt in relation to a legal services payment order made by His Honour Justice Peel on 18 September 2023. The Hadkinson Order required the father to pay £235,357 in legal fees funding. It did not prevent the father from making an application regarding the children’s schooling (this being a more urgent matter).

Outcome

The matter came before Mr Justice Moor on 13 June 2024. As the judge was satisfied that the father should be granted permission to appeal, he went on to consider the substantive appeal.

Mr Justice Moor examined the five requirements the court is to consider when making a Hadkinson Order, as set out in Mubarak v Mubarak [2004] FLR 932 and endorsed by the Court of Appeal in De Gafforj v De Gafforj [2018] EWCA Civ 2070, namely:

1. The respondent is in contempt,
2. The contempt is deliberate and continuing,
3. As a result, there is an impediment to the course of justice,
4. There is no other realistic and effective remedy, and
5. The order is proportionate to the problem and goes no further than necessary to remedy it.

Mr Justice Moor then specifically addressed the approach to be taken in cases proceeding under the Children Act 1989. His judgment makes clear that “there is no doubt” that a Hadkinson Order can be made in child arrangement cases (Hadkinson itself being such a case). However, in cases proceeding under the Children Act, the judge said the court must be satisfied that a sixth requirement is met: “The Hadkinson order must accord with the welfare of the children,” he said. “This is, in my view, essential, given the paramountcy principle in section 1 of the Act [ie that the children’s welfare is paramount].  In other words, a court should not make a Hadkinson order in Children Act cases unless it is in the interests of the children to do so.”

Turning to the facts of the case, Mr Justice Moor determined that while Her Honour Judge O’Neill had applied the five criteria set out in Mubarak and De Gafforj correctly, she had erred in not “directly” considering whether the Hadkinson Order was in the interests of the children. Mr Justice Moor said there was no criticism of Her Honour Judge O’Neill, given that the authorities did not require her to ask herself that question. However, had she done so, Mr Justice Moor’s view was that she would have decided that a more limited Hadkinson Order was required in the “exceptional circumstances” of the case. The Hadkinson Order made by Her Honour Judge O’Neill was, in effect, too onerous.

As such, Mr Justice Moor allowed the appeal and ordered that the father’s application should be stayed until he paid the mother £30,000 (£25,000 plus VAT) so that she could have representation at the final hearing of the father’s child arrangements application. In making this order, Mr Justice Moor sought to protect the mother’s right to a fair trial (under Article 6 of the European Convention on Human Rights) by allowing her to be represented at the final hearing while allowing the father the realistic opportunity of bringing the matter before the court.

Practice points

This case provides clear guidance to practitioners when considering a Hadkinson Order in children proceedings.

Partner Carly Kinch comments: “Hadkinson Orders will remain extremely rare in Children Act proceedings. Such orders must be in the interests of the children, taking into account the fact that the children’s welfare shall be the court’s paramount consideration. They must be proportionate and only go as far as is strictly necessary in all of the circumstances of the case.

Where the child arrangements require urgent resolution, the court will not be able to make a Hadkinson Order as that would be contrary to the welfare of the children and practitioners would therefore likely be better served in looking to the other enforcement options available to address a party’s contempt.”

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