Making the general enforcement application procedure (for the enforcement of family financial orders) more effective – Resolution’s response to the Family Procedure Rule Committee

Responses to consultation questions

Question 1: Do you have any comments on these proposals for amending court rules so that parties and the court at general enforcement application first hearings have the right information available, and that such hearings have the best chance of being effective? Do you foresee any negative unintended consequences? Would you, within the remit of using standard directions to make first hearings more effective, suggest any further changes to court rules?

The process needs to be as simple and transparent as possible as many enforcement applications are made by unrepresented creditors. Resolution would like to see the relevant parts of the CPR and FPR combined to facilitate this, so we are supportive of the key rules for enforcement in family proceedings being ‘all in one place’ with limited transposition of some provisions of the CPR mainly into Part 33 of the FPR as proposed.

Regarding further changes to court rules, permission is currently needed to enforce arrears of maintenance that are more than 12 months old. We consider that no such permission should be required, or should at least only be required where there are arrears that are more than, say, 24 months old.

Question 2: What would you add to or subtract from the information required in a financial statement and set out at Annex A?

In Question 16 – Information about any other asset – Resolution suggests including other sources of income, for example, sources of money for living expenses from family or a trust.

Question 3: Which documents, if any, would you require to be supplied by the debtor at the first court hearing other than those set out at Annex A?

We would include:

• Tax assessments (as well as tax returns) which could include documentation to confirm any

  CGT liability.

• Confirmation of benefits statements.
• A copy of a driving licence, passport or national identity card as directorships may be disguised and businesses owned in different names, or a party may use a different name in this jurisdiction to elsewhere.

Question 4: Would it be helpful to set out explicitly in the Rules that bench warrants can be issued by the court following a failure to comply with orders made on a general enforcement application?

Yes.

Question 5: Do you agree that it would be useful to set out clearly what enforcement remedies can and cannot follow from the general enforcement application, without further application? Are there any other misunderstandings about the nature and limitations of the general enforcement application that might need clarification?

Yes, we agree that it would be useful to set out clearly what enforcement remedies can and cannot follow from the general enforcement application, without further application.

It is important to make clear to parties what the limits of the general enforcement application and court’s powers are. We would welcome separate consultation on guidance for litigants in person.

Question 6: Do you have any objections to changing court rules so that creditors could request that a judge question a debtor directly at a general enforcement hearing? Are there any unintended negative consequences to such a shift in the conduct of hearings?

We have no objections where the creditor doesn’t have a legal representative, provided that judiciary who have already undertaken this type of questioning on an informal basis do not object and good practice in this area can be shared.

Part 71.6 of the CPR arguably seems to suggest that a creditor must be represented at a general enforcement hearing in certain circumstances. It should be made clear that this is not the case.

We agree that it would also be useful to allow the creditor on the general enforcement application form to indicate whether s/he would like the case to return to the same judge who made the original order where possible.

Other comments

Feedback from our membership indicates that, where creditors are legally represented, most applications for general enforcement of a financial order are compromised before full hearing or subsequently convert to a variation application. We suspect that this is unlikely to be the case where the creditor is not represented, and that most applications going to full hearing will involve those acting in person if not deterred from bringing enforcement proceedings at all by the perceived complexities.

Simplicity and accessibility are key to an effective process. We would like to see one point of entry for enforcement using a single application form for review by a Designated Enforcement Judge with the ability to consider the method(s) of enforcement most likely to work, and supported by a designated clerk at each FRC. This would also avoid help difficult applications asking for various types of enforcement. We think that applications for enforcement would be suitable for an online process with specialist enforcement judges deciding if and how a hearing is necessary.

For further information please contact:
Rachel Rogers, Head of Policy, rachel.rogers@resolution.org.uk

Resolution, September 2020