S v S (Children: Financial Provision)
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 1992 |
| Date | 27 November 1992 |
| Year | 1993 |
| Court | Family Division |
Family Division
Before Mr Justice Thorpe
Children - practice - refusal to remit arrears - appeal
An appeal from the refusal of justices to remit arrears which had accrued under a child's periodical payments order made under the Children Act 1989 was by notice of motion to a judge of the Family Division under section 94 of that Act.
Mr Justice Thorpe so held in the Family Division when allowing appeals by a father from Harrow Justices who had refused to vary orders requiring him to pay £25 a week for each of his two boys and refusing to remit the arrears of £1,150.
Section 94 of the 1989 Act provides: "(1) An appeal shall lie to the High Court against (a) the making by a magistrates' court of any order under this Act; or (b) any refusal by a magistrates' court to make such an order."
Miss Delyth Evans for the father; Mrs Maureen Mullally for the mother.
MR JUSTICE THORPE said that the parents married in 1981 and separated in June 1991. On January 31, 1992 the father had been ordered to make periodical payments of £25 a week for each of his two boys. The father paid nothing and the clerk to the justices issued enforcement proceedings.
The father issued a summons to vary in September and at the hearing in October applied to have the arrears remitted. The justices refused to vary the amount or to remit the arrears.
The court had been referred to Berry v BerryELR ([1987] Fam 1). The Court of Appeal had reluctantly decided that an appeal from the refusal of justices to remit a wife's arrears of periodical payments was by way of case stated while an appeal from the refusal to vary periodical payments was by notice of motion.
It was clear from section 94 of the 1989 Act that an appeal from the justices against the making of any order or any refusal to make such an order was to the High Court by notice of...
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