In our work as family lawyers, we are generally focused on getting our client the outcome they want, or as close to it as is reasonably possible. We do this by whatever means are most appropriate in the circumstances of our client’s individual case: we commence the collaborative process, we negotiate for them, we support them through mediation, we arrange arbitration or we conduct litigation. In financial cases, the result is almost always a court order, ideally achieved by consent after the client has reached an agreement with their former spouse or partner, but if not, made by the court of its own accord. In most cases, this is the end of the matter: both people can move on, and our job is done. Sometimes, however, the final order is not the end.
Occasionally, one of the people involved will disobey the terms of the court order and fail to make payments as required. The law provides for appeals against court orders only in rare circumstances, for example where circumstances change dramatically soon after an order is made, if there has been any sort of fraud, or if there has been a mistake made by the court. Later, if circumstances change it may be possible to vary an ongoing order. If someone genuinely can’t pay, there are ways to deal fairly with that. However, if there are no good reasons for a failure to fulfill the terms of the court order – if someone just won’t pay – our job is then to enforce it on behalf of our client, using the provisions of the law to make the other person comply.
It has long been the belief of many family lawyers that the powers of the family court to enforce orders in these most difficult of circumstances aren’t quite fit for purpose. They don’t give us the what we need to be able to pursue the most stubborn defaulters on our client’s behalf, and they’re complex and outdated. Ineffective enforcement causes genuine hardship, results in costs to the state and undermines confidence in the justice system. These concerns founded the basis of a project by the Law Commission, the government body that comprehensively reviews and suggests changes to the law, which came to fruition in a report released just before Christmas.
A focus of the Commission’s report is how complicated enforcing financial orders currently is, which has a big impact on those forced by financial circumstances to represent themselves now legal aid is not generally available for family court legal proceedings. As specialist family lawyers, even we acknowledge that the law related to enforcement proceedings is difficult, and we are used to the complex language and disparately situated provisions; for a litigant-in-person, the task is daunting. The Commission has suggested a package of measures aimed at making the whole system “more effective, more accessible and fairer”. This will assist the courts in assisting those without legal representation and ensure it is easier to reach the right answer, sooner.
The Commission has recommended significant upgrades to the current law. Its key recommendations are that:
- the rules be put into one place with the other rules that relate to family court proceedings, rather than being spread out among many different pieces of legislation as is currently the case;
- they will be supplemented by a practice direction that will provide an accessible ‘route map’ for those using the system;
- there be more information available to litigants in person about how to navigate their way through the courts. This would include making information on methods of enforcement available at the time the order is made, maybe even on the back of the order, to focus minds earlier both on ways to ensure compliance and about the consequences of failing to comply;
- a new ‘enforcement financial statement’ be introduced for use when one person makes an application for enforcement of an order;
- that a specific provision in earlier legislation allowing the courts to access information held by other agencies (eg HMRC, DWP) about the debtor should be brought into force, and that there be easier tracking of employment status and use of the NI number in family proceedings;
- provisions should be introduced allowing for enforcement using pension assets and assets in joint accounts, which is not currently allowed;
- third party debt orders – ways of recovering a lump sum owed by someone else – would become periodic, enabling the regular recovery of maintenance/instalments directly from a debtor’s bank account;
- improved coercive orders which would act to persuade debtors to pay up: specifically, the introduction of the power to order disqualification from driving (surrender of driving license) and a ban from overseas travel (surrender of passport).
The Law Commission is confident that these measures would achieve the objective of a fairer, more accessible and more effective system of enforcement for family financial orders. We wait with interest to see whether the government is willing to devote the short-term resources to make the recommended changes, which we think would have positive and cost-effective longer-term impact both on the workings of the family court, and on the lives of vulnerable adults and children. In the meantime, we’re all stuck with the current system: but you can be sure that we know our ways around it. If there’s anything we can help you with, please give us a call on 01223 443333 and make an appointment to speak to Sue, Adam, Gail, Simon or Tricia.