Re K (Remo — Power of Magistrates to Issue Bench Warrant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Jackson |
| Judgment Date | 12 May 2017 |
| Neutral Citation | [2017] EWFC 27 |
| Docket Number | Case No: MA15P90017/15007045J |
| Court | Family Court |
| Date | 12 May 2017 |
[2017] EWFC 27
IN THE FAMILY COURT
SITTING AT MANCHESTER
The Honourable Mr Justice Peter Jackson
Sitting at Manchester Civil Justice Centre
Case No: MA15P90017/15007045J
JUDGMENT:
Introduction
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.
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
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.
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
In what follows, I am indebted to Simon Dodgshon, the Deputy Justices' Clerk (Family) to the Manchester bench.
The problem
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
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.
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
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...
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