The case of BR v SN provides an unusual example of court proactively controlling litigation about child arrangements against a backdrop of pretty relentless litigation, appeals and a failure to comply with orders made.
After many earlier stages in the litigation between the parents, in 2023 the father had made an application for the child to live with him. That application was to be heard by Her Honour Judge O’Neill. However, HHJ O’Neill decided that she would deploy the little used power to make a Hadkinson order, which had the effect of blocking the proceedings. The appeal judgment of Moor J tells us the background to that order being made, and why the father’s appeal against it was allowed. However, the reason the appeal was allowed was not because such an order could never be justified, but because of an important misstep by HHJ O’Neil that undermined her decision. And if you read on you will see that HHJ O’Neill was largely vindicated in her approach, notwithstanding the headline outcome.
A Hadkinson order is one which prevents a litigant who is in contempt of court from pursuing an application until they have purged their contempt. Put simply, the court can say ‘I’m not listening to you until you do what the court order tells you to do. If you hold the court in contempt it will treat you in like manner’. Purging contempt means putting right your breach of an order. Although the original case of Hadkinson was a case about a child, these orders are almost always made in financial remedy cases.
In separated Schedule 1 proceedings (financial proceedings about the child) the father had been ordered but repeatedly failed to pay maintenance and costs orders. In those proceedings the court had made a Legal Services Payment Order (LSPO), effectively an allowance that the father was to pay to the mother to meet the costs of her being represented on the child arrangements application. He had defaulted on all of those orders, and by the time HHJ O’Neill dealt with the case, the arrears were something like £90,000 including the LSPO. This meant that whilst he was represented on his application for a change of residence, the mother was significantly out of pocket and at risk of losing her representation because of the father not complying with the order. By making a LSPO another judge had determined that it was necessary for the mother to be represented in order for there to be equality of arms, and the father’s failure to pay money (which they court had already concluded he was able to pay) was jeopardising that fairness. So, the judge made a Hadkinson order.
And, following a pattern set over many years and many appeals preceding this one (with one more still in the wings to follow) the father appealed.
In fact, the appeal judge allowed the appeal against HHJ O’Neill’s order because it was too widely made, but this was something of a pyrrhic victory for the father because the judge decided to look at matters afresh himself and reinstated the Hadkinson order, albeit in slightly more modest terms. Now the father will have to pay a sum sufficient to enable the mother to defend the application before he can proceed to run it, but he will not necessarily have to pay the full amount outstanding (which is much larger). The mother will still be able to pursue enforcement proceedings to get the rest of the funds owed, but she has done that before and it has not apparently been enormously successful. One imagines from reading the judgment that she is probably fed up to the back teeth of going back to court again and again to enforce orders she is entitled to expect are paid, and that the father knows perfectly well how exhausting and infuriating his conduct is.
The court certainly has little sympathy for him, to go by this judgment – that includes HHJ Wildblood who dealt with the matter in 2023 and was distinctly unimpressed with the father, HHJ O’Neill who made the Hadkinson order, and Moor J who reimposed it in adjusted terms.
How was it that the appeal was allowed but a similar order reimposed? Well, the judge had got everything right in terms of her application of the law to the facts, with one exception. This was a case where welfare was paramount and she had not specifically considered whether the Hadkinson order was consistent with the child’s welfare. It seems rather unlikely that the judge in fact failed to consider this issue, but it appears that the absence of any reference to it in her judgment was fatal. When Moor J went back to pick up where HHJ O’Neill had left off her analysis (which he said was unassailable apart from that one error) and applied the welfare consideration, he concluded that as long as sufficient funds were available to ensure the mother was able to be represented a fair trial could proceed, and that since it was in the child’s welfare interests for the litigation to conclude as soon as possible that order was the proportionate response to the father’s contempt, without going further than was necessary. The father was ordered to pay a much reduced sum in order to revive his application for a residence order,
It is important to appreciate that part of the reason the LSPO had been made in the first place was the mother’s ‘vulnerability’. It’s not completely clear from the judgment whether there have been any findings of domestic abuse against the father, but the issue certainly seems to be live – the Domestic Abuse Act 2021 is mentioned, the mother’s barrister asserted that the Father was pursuing the litigation ‘as part and parcel of his “high end coercive control”’, and it is recorded that Peel J had found the father’s conduct to be ‘oppressive’, when making the LSPO. The father’s approach to and use of the litigation as described in the judgment of Moor J certainly appears to be pretty relentless, punitive and controlling.
It will continue to be very rare for the court to make a Hadkinson order, particularly in children proceedings. Were it not for the breach of the LSPO, which related to the residence application, the court would most probably not have reinstated any Hadkinson order in this case at all, because the other orders didn’t directly relate to these proceedings.
Of course, zooming out a little, there are many, many cases in which neither party has sufficient funds for representation, and so the court does not have the luxury of extracting funds from one party to ensure representation for the other to level the playing field. Nobody sensible would suggest that the appointment of a QLR by the court to ask questions on behalf of a party, where the other is represented before and throughout the hearing by their own advocate, is even approaching equality of arms. And to play devil’s advocate – if it wasn’t good enough for the mother in BR v SN, why is it good enough for all the other vulnerable litigants with ex partners who behave oppressively, who are not above using the process to put pressure on their exes, but who have shallower pockets?
The other striking feature of this case is that the child has been living in the mother’s care (with the approval of the court) for many years, and the court already has the benefit of a recent report from an independent social worker which clearly recommends that the child should remain living with the mother. However, said Moor J, the father was entitled to challenge this report, although he might have an ‘uphill struggle’. Indeed.
Although it is not completely clear from the judgment (as it isn’t directly relevant to the appeal) it appears the mother has made a s91(14) application, but that it hasn’t yet been able to be dealt with (a s91(14) order requires a party to first obtain permission from the court before they are allowed to issue a fresh application about a child). Whilst a long history of repeat applications is not a pre-requisite, the history of many, largely unsuccessful applications by the father about this child, and the findings of vulnerability and oppressive conduct, suggest that such an order may well be made at the end of the proceedings, perhaps against both parents. The revised guidance around s91(14) orders contained in PD12Q certainly suggests the making of such orders requires proper judicial consideration.
We may see more of this family in due course, as the father has a pending appeal about a specific issue order relating to the child’s school, and assuming he complies with the revised Hadkinson order the court will proceed to decide his residence application before too long. It is to be hoped that the court will publish its judgments on those matters.