General principles

General principles

When drafting or negotiating the terms of an order, it is good practice to consider the potential enforcement of that order and ensure that it sets out exactly what has to be done, any dates by which that action is required and that any undertakings are clear. The terms and consequences of a breach of an undertaking must be explained to the parties.

The rules governing the enforcement of orders within family proceedings are primarily contained in Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 33, which imports relevant provisions of the Civil Procedure Rules 1998, SI 1998/3132, with modifications. FPR 2010, SI 2010/2955, Pt 37, together with FPR 2010, PD 37A, apply regarding applications and proceedings in relation to contempt of court. FPR 2010, SI 2010/2955, Pts 39 and 40, together with FPR 2010, PD 40A, apply in relation to attachment of earnings orders, charging orders, stop orders and stop notices.

Regard should also be had to requirements for leave and limitation periods, see Practice Note: Limitations on enforcement.

Enforcing financial orders

FPR 2010 introduced an ability to apply to

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High Court judgment demonstrates usefulness of section 423 of the Insolvency Act 1986 in Schedule 1 claims (Re P (A Child) (Financial Provision))

Family analysis: In this Schedule 1 case the mother received, for her son’s benefit: a housing fund of nearly £1m (the property to be held on trust); child maintenance (including ‘HECSA’/carer’s allowance) until completion of his first degree; and lump sums in respect of his capital needs and her own substantial liabilities (chiefly relating to her unpaid legal fees). The father (whose resources could be measured in the ‘tens of millions of pounds’) had sought to prejudice the mother’s claims via transferring his valuable shares to family members, who then transferred the same into a trust structure (settled under Czech law). A further onwards transfer was then made of the trust’s assets into a Liechtenstein foundation. Inferences were drawn by the court in respect of the level of the father’s wealth, and specifically as to the value of the transferred shares. Detailed findings were made against him in respect of the identified transactions, which had been the focus of the mother’s section 423 application. Although a section 423(2) order was not actually made, the application was adjourned pending the father’s compliance with the award, with security in the sum of £600,000 also ordered, alongside a continuation of the freezing orders made earlier in the proceedings. David Wilkinson, solicitor at Slater Heelis, considers the issues.

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