Hadkinson v Hadkinson: The Importance of Compliance with Court Orders

Tue 30th Jul 2024
Judge signing a court order

The recent case of L v O [2024] EWFC 6 highlights the important role of Hadkinson Orders in ensuring compliance with court orders.

In the case of Hadkinson v Hadkinson [1952] P 285, the Court of Appeal addressed whether a party who breached a court order could appeal a decision related to child custody. This case underscores the importance of compliance with court orders and the rule of law.

Bradley Kaine, a Family Executive on Coodes’ Family team, explores this case and what it means going forward.

Facts of the case

Following their divorce, Mr and Mrs Hadkinson were involved in a custody dispute. Mrs Hadkinson defied a court order by taking their child abroad without permission, leading to legal proceedings. She was ordered to return the child to England. She failed to comply and sought to appeal the decision, whilst remaining in contempt of court due to her failure to comply with the order for return.

This begs the legal question, should a party in contempt of court (by not complying with an order) be allowed to appeal a decision? This raised concerns about enforcing court orders and respecting judicial authority.

The Court of Appeal ruled that Mrs Hadkinson could not proceed with her appeal whilst in contempt of court. The court emphasised the necessity of complying with court orders to uphold judicial authority. The ruling established that a party must rectify their contempt before appealing.

Impact and significance of court orders

The decision in Hadkinson v Hadkinson underscores that court orders must be respected to maintain the rule of law. It ensures that individuals cannot benefit from their wrongdoing and must comply with judicial decisions before seeking further legal remedies.

A Hadkinson Order prevents a party from presenting an application to court until they comply with an existing court order. While powerful, these orders are a “remedy of last resort” due to their impact on a person’s right to access the court.

A Hadkinson Order is only available after the making of a final order. If non-compliance occurs before the final order, parties are encouraged to use rigorous case management directions such as costs orders, penal notices, committal orders and expert evidence, rather than Hadkinson orders. It is not a common order.

The court must ensure that a Hadkinson Order is justifiable and necessary to avoid breaching the party’s human rights. To do this, it considers:

  1. Whether the party is in contempt.
  2. Whether there is an impediment to justice.
  3. Whether another effective means of securing compliance exists.
  4. Whether the court should impose conditions.
  5. Whether the contempt is wilful.
  6. What conditions are appropriate.

Updated law

Since Hadkinson v Hadkinson, the law has evolved:

  • Tattersall v Tattersall [2018] EWCA Civ 1978: The Court of Appeal addressed enforcement of financial orders, emphasising the principle that enforcement applications should not be delayed by variation applications
  • DS v HR (Hadkinson Order) [2020] 1 FLR 945: Extended the Hadkinson principle to related proceedings. The court struck out an appeal against a costs order unless child maintenance payments that were due from the final order were made
  • BSA v NVT [2021] All ER (D) 95 (Apr): Highlighted the court’s willingness to use Hadkinson orders to enforce compliance across related matters to ensure compliance with court orders and prevent the abuse of the appeal process
  • L v O [2024] EWFC 6: Reaffirmed the necessity for Hadkinson orders to be proportionate and used as a last resort, ensuring no other effective means of securing compliance exists.  The court considered that not allowing an enforcement application to continue in such circumstances might lead to manipulation, or subversion of the court process

Compliance with court orders

Hadkinson v Hadkinson is a landmark case emphasising the critical role of compliance with court orders in the legal system. It reinforces that the rule of law is foundational to justice and must be upheld to ensure fairness and order.

If you need assistance with family matters, our Family Team are here to help. Get in touch with Bradley Kaine by calling 01736 352230 or email bradley.kaine@coodes.co.uk.

Alternatively, you can fill in our online contact form to be directed to an appropriate member of the team.

Tue 30th Jul 2024

Bradley Kaine

Family Executive

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