All governments like to say they promote access to justice and it is viewed as a fundamental human right. When lawyers raise the issue of access to justice, it is most often in connection with the withdrawal of legal aid (public funding). There are probably quite a few people who are in agreement with the removal of legal aid from the vast majority of family cases, as it was perceived as a blank cheque for litigation by those who were not eligible to receive it.
However my point in this article is that access to justice is only as good as your ability to enforce the terms of any order made.
If orders, once made, are too expensive or complicated to enforce, they become worthless and the whole system becomes pointless.
The court system is based on the assumption that by and large people respect the rule of law and that no one would ever contemplate disobeying a court order.
So what to do when they don’t stick to the order?
Where an order deals with ongoing payments such as spousal or child support (where the CMS does not have jurisdiction), the choice is fairly stark. If the payor is in employment, you apply for an attachment of earnings order – job done. If the payor is self employed – you could face a number of difficulties and expert advice will be required.
There are also some choices when enforcing a lump sum payment and if you can identify a fund or asset from which the money can be paid, you should eventually get your money. Here you are also helped by the fact that interest runs (at an attractive rate) automatically on lump sums of £5000 or above, so there is both an incentive to pay and a benefit to receive when you finally have enforced.
For some the biggest headache is the reluctant sellor when the court orders the sale of a property. In many family cases, the end result is that the family home has to be sold. However one party may not have wanted the sale and now, after the order for sale has been made, even if by consent, is when the prevaricators come into their own. Many people using the family court system do not realise that the court does nothing to enforce its own orders. It does not monitor compliance with time scales for action or payment. This can leave those acting without solicitors in limbo.
Depending on the action (or inaction) being taken by the reluctant selllor, different avenues are open to the other party but it will undoubtedly mean an application back to court. It may mean one or two or three applications back as the court deals in turn with the appointment of the estate agents, the marketing price, access to potential purchasers, acceptance of an offer and finally signature of the necessary sale documentation. You can obtain costs orders, to be deducted from the reluctant party’s share of the sale proceeds, but the bigger cost can be the delay which will then impact on the chance of tying in a related purchase.
To add insult to injury for anyone caught up in this type of frustration of a court order, the Government are increasing the fees for these type of “general” applications, from £155 to £255 later this year. This may be seen as a licence to those who do not want to co-operate with the sale, to make as many difficulties as possible as few people, after taking proceedings to the point of a final order, have spare money to fund repeated enforcement applications.
Here a solicitor can make all the difference to achieving as much as possible in one or (maybe two) applications to the court. Whilst use of a solicitor is a further cost, in these type of matters it can represent a saving overall not simply in money terms but in getting to the point of final closure.
K. Anker 15.9.2015