Order, order – resolving breaches during court proceedings Image

Order, order – resolving breaches during court proceedings

Posted: 14/07/2014

The issue of non-compliance in the family courts has been highlighted by such recent proceedings as Young v Young [2013] EWHC 3637 (Fam), [2013] All ER (D) 313 (Nov) during which Mr Young was found to be in contempt of court through his failure to disclose evidence of his alleged loss of assets. The term 'contempt of court' is used to describe conduct which undermines or has the potential to undermine the course of justice or the procedures designed to deal with it. Contempt of court is seen as a serious offence and can result in a costs order, fine or even a custodial sentence being imposed on the offending party, as was the case with Mr Young.  

Draconian order?  

A further option open to the court in serious cases is a Hadkinson order, a type of 'unless' order originating from the case of Hadkinson v Hadkinson [1952] P 285, [1952] 2 All ER 567 designed to remedy something done in defiance of the court by limiting the wrongdoer’s access to the court until they rectify the breach. While the making of such an order is draconian (as it can essentially restrain or restrict the offending party from taking full part in the proceedings while the breach continues), Ryder J confirmed that such orders are compliant with the European Convention on Human Rights in Mubarak v Mubarak [2004] EWHC 1158 (Fam), [2004] 2 FLR 932 and suggested that the following questions be asked:

  • Is there contempt?
  • Is there an impediment to the course of justice?
  • Is there any other effective means of securing compliance with the court’s orders?
  • Should the court exercise its discretion to impose jurisdiction?
  • Is the contempt wilful, ie is it contumacious and continuing?
  • If so, what conditions would be proportionate?    

During the course of his judgment in Laing v Laing [2005] EWHC 3152 (Fam), [2007] 2 FLR 199, Sir Mark Potter indicated that he did not find the use of the expression 'contumacious' 'a useful addition or supplement to the threshold requirement that the contempt should be wilful'.  


It should always be remembered that the making of a Hadkinson order is discretionary and will not be granted where there are other effective methods of ensuring compliance. Having said that, such orders have proved to be a useful tool where there is a continuous and deliberate breach. This may take the form of, for example, non-payment under an order or a failure to pay capital or maintenance sums, or where a husband has deliberately attempted to place assets beyond the court’s reach by transferring them into trusts and has then claimed that he no longer has the benefit or control of such assets, disobeying court directions about filing documents and providing information to the court (see M v M [2010] EWHC 2817 (Fam), [2011] EWHC 3574 (Fam)), or simply ignoring the court process altogether.  

In her judgment in M v M [2010] EWHC 2817 (Fam), Mrs Justice King seemed to suggest that a Hadkinson application could be less likely to succeed against a respondent to the proceedings, stating that 'the situation needs even more anxious consideration where the party in respect of which it is submitted should not be heard, is the respondent to the application'. It was also of relevance that the hearing was an interim hearing and the husband could 'at any stage choose to re-engage in the process, to file an affidavit, and to make any application he may wish to vary any order [made]'. However, despite the husband being the respondent, King J made a Hadkinson order preventing the submissions from his counsel from being heard. The husband’s counsel was ordered to leave the court with his solicitor being allowed to remain to take an attendance note.  

Children cases  

While applications for a Hadkinson order are perhaps more often seen in the context of financial remedy proceedings, such applications can also be made in children cases such as the Anglo-Russian case of F v Y (abduction: acquiescence) [2014] Fam Law 406.  

Following the end of her relationship with the father in 2010, the mother returned to Russia with the parties’ daughter. The father said that she did so without his consent. The father issued proceedings in wardship in late 2012 by way of a without notice application and was granted an order restraining the mother from removing the child from the jurisdiction along with a passport order. The mother was served with the application and orders during the course of a brief visit to London (without the child who remained in Russia). At the hearing of the mother’s application to discharge the passport order, the mother contested the jurisdiction of the English court to deal with matters concerning the parties’ daughter and a hearing to determine the issue of jurisdiction was set down for a date some six months later. Pending this jurisdictional hearing, the mother’s passport was returned to her upon her giving a number of undertakings to the court, one of which was an undertaking to return to the jurisdiction together with the child to attend the jurisdictional hearing.  

In the intervening period, the mother issued an application in the Moscow courts. This Russian application resulted in an order preventing the mother from removing the child from Russia pending determination of the issue before the Moscow courts, effectively placing the mother in a position where she could not fulfil her previous undertaking to the English court without breaching the Russian order. The mother therefore returned to England to attend the jurisdictional hearing without the child. Counsel for the father argued that the mother was in deliberate breach of her earlier undertaking and that the mother’s participation in the proceedings should be restricted pursuant to Hadkinson until the child was brought to London in order that a direction relating to paternity testing could be carried out and to give greater confidence to the father on the issue of the enforcement of any order the English court may make (should it decide that it had the jurisdiction to do so).  

It was decided that the hearing should proceed despite the mother’s breach as the judge was satisfied with a proposal put forward on behalf of the mother to fly a London doctor to Moscow to progress the issue of the DNA testing. Bearing in mind the comments of King J in M v M, the fact that the mother was the respondent to the proceedings and the fact that the hearing was substantive in nature and related to child-welfare issues would surely have played a part in this decision. Also, the fact that a suitable alternative mechanism for the completion of the DNA testing was proposed on behalf of the mother and accepted by the judge, thereby circumventing any practical need for the breach of undertaking to be remedied, particularly when compliance would have meant a young child flying from Russia on an urgent basis.  


In summary, while Hadkinson orders are difficult to obtain, the family courts will not readily tolerate non-compliance with orders, or indeed, undertakings, and therefore practitioners should bear in mind the availability or risk of a Hadkinson order when faced with or representing a non-compliant party, not only in financial remedy proceedings, but in jurisdictional and children matters as well.  

This article was published in New Law Journal in July 2014.

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