England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT
SITTING AT MANCHESTER

		12 May 2017

Mr Justice Peter Jackson:

Introduction

1. This judgment addresses the question of whether magistrates sitting in the Family Court have the power to issue a warrant for the arrest of an alleged maintenance debtor who has failed to obey an order to attend for questioning as to his means. It is an issue that particularly arises where magistrates have the responsibility to enforce maintenance orders made in other jurisdictions under the Reciprocal Enforcement of Maintenance Orders (REMO) process, but it has wider ramifications for the powers of magistrates generally.
2. The authors of the Family Court Practice 2016 and of the Financial Remedies Practice 2016 consider that the magistrates do have the power to issue an arrest warrant in these circumstances by virtue of s.31E Matrimonial and Family Proceedings Act 1984 (below). Having reviewed the matter in detail, I agree. I will describe the circumstances of the present case and then set out the legislative and procedural framework.

The present case

3. In 2009, on the application of the mother of his child, the court in Poland ordered Mr K to make monthly payments. No payments appear to have been made, and in 2014, the mother, believing Mr K to be living in this country, made formal application to the Polish Central Authority for the enforcement of the order under EU Council Regulation 4/2009. This application was transmitted by REMO office at the Official Solicitor's Department (the UK Central Authority) to the Family Court in Manchester.
4. A large number of efforts have been made to trace Mr K, who has indeed been living and working in England. Attempts have been made on several occasions to serve notices of hearing, but these have not so far been successful. Notices have been left at his address, but personal service has not yet been achieved. Meantime, the matter was transferred to me for clarification of the extent of the magistrates' powers. Mr K did not in the event attend the hearing before me, and I shall transfer the matter back to the magistrates for continued efforts to be made to serve him. The jurisdiction of the magistrates to issue a warrant if Mr K is served and fails to attend has therefore not yet directly arisen, but I consider that it may nonetheless be helpful for me to clarify the extent of their powers in this case and others like it.

The legislative and procedural framework

5. In what follows, I am indebted to Simon Dodgshon, the Deputy Justices' Clerk (Family) to the Manchester bench.

The problem

6. The experience of the court at Manchester is that there are now a small but growing number of cases in which the alleged maintenance debtor has failed to attend in response to an order requiring him to do so. This presents the magistrates with the practical problem of how to proceed without information as to his current financial and other circumstances.

Enforcement action before the magistrates

7. Historically, magistrates have dealt with a large number of these cases. The Affiliation Proceedings Act 1957, the Guardianship of Minors Acts of 1971 and 1973 and the Domestic Proceedings and Magistrates Courts Act 1978 gave the magistrates powers to make maintenance provision (usually in the form of periodical payments orders) for spouses and for children following the breakdown of the relationship. These statutory provisions were supplemented by the Magistrates Courts Acts of 1952 and 1980, which contained a regime for enforcement. Part III of the 1980 Act enabled the magistrates upon a 'complaint' made to the Justices' Clerk or Justice of the Peace, to issue a summons or a warrant of arrest in order for the magistrates to conduct a 'means enquiry'. At that hearing, upon a finding of 'wilful refusal' or 'culpable neglect', it was possible for the magistrates to commit to prison a person found to be in default. Other more moderate powers (which still exist) are provided by the Maintenance Enforcement Act 1991 and include the making of an attachment of earnings order, the power to order that payments must be made through the court to monitor compliance, and the power to require payments via a bank direct debit or standing orders.
8. Although the Child Support Act 1991 removed much of this maintenance enforcement business, there were still several sources which continued to generate work of this nature before magistrates. Of these, two are relevant for present purposes. The first was the power contained in the Maintenance Orders Act 1958 for an order made in the county court (usually in the course of divorce proceedings) to be registered for summary enforcement in the Magistrates Court; the second is the power of the magistrates to make and/or enforce maintenance orders where the payer lives or has moved to this country but the applicant lives abroad, under various enactments, instruments and treaties agreed between the UK and foreign States. This is known as 'REMO' work.

The Family Court

9. Following the creation of the Family Court as new statutory entity in April 2014, the allocation of the work to the magistrates is within the Family Court (Composition and Distribution of Business) Rules 2014 which includes Schedule 1 (allocation) and Schedule 2 (remedies) for business allocated to the tiers of the Family Court judiciary.
10. Schedule 1 contains the REMO legislation and international instruments and directs that it ought to be allocated to magistrates' level. The enforcement of orders made in divorce proceedings would be allocated to District Judge level by reason of judicial continuity in accordance with r.17. However, where an order of that kind had already been registered for enforcement in the Magistrates Court, then the bench could continue to exercise jurisdiction: Crime and Courts Act 2013 (Family Court: Transitional and Saving Provisions) Order 2014.
11. In Schedule 2 certain enforcement options are outwith the magistrates' jurisdiction, and so if there is an application to enforce the order by way of those particular remedies (for example a charging order or a third party debt order) then the case will need to be re-allocated to the appropriate tier. But the powers to make an attachment of earnings order and the other powers in the 1991 Act above are not excluded from the magistrates' armoury and have proved to be satisfactory outcomes in most of cases. For such remedies to be realistically considered however, the defaulter must be present to investigate their appropriateness. The explicit process in Part III Magistrates Courts Act 1980 described above, to secure attendance through a summons and arrest warrant if necessary, has gone, removed by the Crime and Courts Act 2013.
12. The problem above therefore arises whether the order is a 'foreign' or REMO order, or a 'domestic' order, i.e. one of those remaining county court orders registered in the Magistrates Court before April 2014.  

The current regime

13. Part 32.33 of the Family Procedure Rules 2010 ('FPR') empowers the Court officer to take action if requested to do so by the person for whose benefit the order has been made. Part 33.3 FPR is headed 'How to apply' and invites the Court to determine the method of enforcement as it thinks appropriate. This triggers the issue of an order to attend for questioning pursuant to Part 33.3(4), which in turn invokes two selected paragraphs from Part 71 of the Civil Procedure Rules – 71.2(6) and 71.2(7). The former requires the defaulter to attend Court as ordered and answer questions and produce documents; and the latter says that the hearing notice must contain a penal notice warning of consequences for contempt in the event of non-compliance. When the alleged defaulter attends, he is taken through a series of questions on a prescribed form and the magistrates conduct that process with their legal adviser and make any appropriate order that is open to them. The rules do not specify procedure for what should happen if the defaulter does not attend.

Failure to attend

14. In a number of cases, alleged defaulters have not attended. The authors of the Red Book 2016 advise that in those circumstances arrangements should be made for the hearing notice to be served personally with a warning attached to the notice that the Court may invoke its powers to deal with the defaulter as a contemnor. If there is still no attendance then a bench warrant may be issued – 'C2: Lay Justices' Power to Enforce Orders for Financial Provision' p100, and also the footnotes to Part 33.3 at p1924. The authority for this is said to be s.31E Matrimonial and Family Proceedings Act 1984 and the case of Westwood v Knight [2012] EWPCC 14.
15. Section 31E MFPA 1984 is headed 'Family Court has High Court and county court powers' and states:

"(1) In any proceedings in the Family Court, the court may make any order-

a) which could be made by the High Court if the proceedings were in the High Court, or

b) which could be made by the county court if the proceedings were in the county court"

16. Westwood v Knight concerned an application for the committal of the defendant for non-compliance with directions and orders for trial of the action. HHJ Birss QC (as he then was) found the absent defendant to be in contempt. He concluded (in paragraphs 145-147) that s. 38(1) County Courts Act 1984 enabled him to issue a bench warrant. That section begins;

"38 Remedies available in county courts.

Subject to what follows, in any proceedings in a county court the court may make any order which could be made by the High Court if the proceedings were in the High Court."

Judge Birss determined at [147] that whilst the section does not confer on the county court a jurisdiction to hear a case it has no jurisdiction to hear, it supplies remedies and orders which the court can make in proceedings properly before it. 

17. The conclusion to be drawn in the present case is that s.31E, by analogy with s.38, provides all judges of the Family Court with the power to issue a warrant to secure attendance.

Other authority

18. I note for completeness:

(1) In Salekipour v Parmour [2016] EWHC 1466, Garnham J held that the County Court, being a creation of statute, has no inherent jurisdiction and that neither section 23(g) nor section 38 CCA 1984, confers on it jurisdiction to rescind an earlier decision of the County Court on the ground that the decision was obtained or induced by fraud. However, this decision was concerned with jurisdiction and not with a remedy in the course of proceedings that were undoubtedly within the jurisdiction of the court.

(2) The issue of a bench warrant is to secure the attendance at court of the person arrested and detained and is a direction ancillary to the investigation by the court of the relevant issues before it. The person arrested and brought before the court may be found to have been in contempt of court but the exercise of the jurisdiction is not based upon contempt of court but upon ensuring compliance with the direction of the court: Re B [1994] 2 FLR 479 per Butler-Sloss LJ (my emphasis).

(3) In MS v PS Case C-283/16, 9 February 2017, the CJEU stated that applications of this kind can, but do not have to be, issued via the Central Authorities, and confirmed that any procedural obstacles or other requirements which do not apply to a local case are invalid. Member States are required to give full effect to the right laid down in Article 41(1) of Regulation No 4/2009 by amending, where appropriate, their rules of procedure. In any event, it is for the national court to apply Article 41(1), if necessary refusing to apply any conflicting provision of national law. This accords with our domestic law, in that the Civil Jurisdictions and Judgments (Maintenance) Regulations 2011 state at Schedule 1 para 4(4):

4(4) For the purposes of the enforcement of a maintenance decision—

(a) the decision shall be of the same force and effect,

(b) the enforcing court shall have in relation to its enforcement the same powers, and

(c) proceedings for or with respect to its enforcement may be taken,

as if the decision had originally been made by the enforcing court.

Conclusion

19. I would therefore hold that s.31E MFPA 1984 authorises magistrates to issue a warrant to secure the attendance of an alleged maintenance defaulter who fails to appear in response to their summons. This conclusion harmonises with the reality. Magistrates are full judges of the Family Court, performing an indispensable role, and their powers are subject only to the distribution of cases under the allocation rules. Their ability to carry out their work effectively would be stultified if they lacked the power to enforce their own orders for a party to attend before them.