King, R (on the application of) v Bunyon

MR JUSTICE McCOMBE: I have before me an appeal by way of case stated, brought by Mrs Michelle Lesley King, the case stated being by the Justices for the Local Justice Area of South Devon in respect of the adjudication as a family proceedings court sitting at Ashburton Road, Totnes in Devon.

The facts of the matter, which are helpfully set out in the Justices' case, were as follows.

There were three children of the marriage between Mrs King, the appellant, and the respondent, Mr Timothy Bunyon. Mr Bunyon is a United States citizen and has, at all material times, resided in that country and, naturally, Mrs King and the children have from time to time also resided there until the break-up of the marriage. As I say, there are three children: Timothy, born on 30th December 1984, Robin, born on 24th February 1987, and Rebecca, born on 13th April 1990. The parties were divorced by an order of the Judicial Circuit Court of Macomb County in Michigan on 24th October 1996. Mr Bunyon was granted, at that time, a residence order in respect of all three children in the United States and Mrs King was ordered to pay $30 per week child support for the three children. An authenticated record of the order, signed by both parties, was before the Justices. Although the document was signed by both parties, Mrs King, the appellant, was not present when the document was approved and was formally made an order of the court. She made submissions in her evidence to the Justices as to the circumstances in which the order was signed, but they are not material to the present question and there is no contest in any way as to the validity of the order made by the Michigan court.

At the time of the order, Mrs King was living in the United Kingdom and has remained in this country as her residence to today's date. The Justices received evidence from a job centre by way of letters that Mrs King had been in receipt of continuous state benefit since 14th November 1993. A letter of 25th January 2006 confirmed that at that date she was receiving some £155.61 by way of income support and disability allowance and since the making of the order on 24th October 1996, the divorce order to which I have already referred, the children have at various times resided in both the United States and from time to time in the United Kingdom. However, each at various dates has, for practical purposes, returned permanently to the United Kingdom. Timothy returned to the United Kingdom in November 2001, Robin so returned in November 2003, and Rebecca returned in September 2002.

Mrs King was granted a residence order in respect of Rebecca in the Exeter County Court on 27th August 2004 and that order was extended, in December 2006, until Rebecca's forthcoming 18th birthday.

The American maintenance order to which I have referred was lodged with the Justices Court at Totnes on 12th December 2001 for registration in the absence of any payments having been made. As a result, Mrs King, the appellant, lodged an application to remit all outstanding arrears and an application to vary the order to a nominal amount per year. Directions were given and the case was listed for a final hearing on 25th January of last year and it was duly heard then. The delay which has occurred arose in respect of the service upon Mr Bunyon in the United States and, as I understand it, by way of pressure of business in the Magistrates' Court at Totnes.

The application came before the Justices on 25th January 2006 when Mrs King, the appellant, was represented by a solicitor whose firm, as I understand it, instructs Miss Mashembo of counsel who appears before me today. Mr Bunyon appeared before the court in person. He opposed the application to remit the outstanding arrears.

The Justices in their case informed this court that they made the following findings of fact:

I interpolate in the findings to say this: that there is no statement anywhere in the papers as to how the Justices came to this conclusion as to the amount outstanding.

The findings of the court which I have just recited are to be found in a statement of fact and reasons signed by the Clerk to the Justices, a copy of which is before me.

On the present appeal Miss Mashembo, in helpful submissions in writing amplified orally before me this morning, submits that the Justices erred in principle in making the decision they did and the alleged errors can be formulated and dealt with by reference to the questions that are posed for the opinion of this court, as appear in paragraph 6 of the Case Stated in the following terms.

I propose to pose those questions and state my opinion as asked by the Justices on each of the questions posed.

The Justices refer, I understand, on the instigation of those advising Mrs King, to the case of Bernstein v O'Neill (1989) FCR 79. That was a decision of Ewbank J in 1987 who held that in the ordinary course the practice of the family courts was not to enforce arrears that were outstanding for more than a year from the date of the commencement of the proceedings. These proceedings were commenced, as Miss Mashembo tells me, by the registration of the American order on 12th December 2001. It is well clear, from the dates that I have given, that the three children came to reside in the United Kingdom in 2001, 2002 and 2003 respectively and it was common ground before the Justices that no order should be made in respect of the period in which those children were here. It seems to follow, therefore, that the arrears sought to be enforced must relate to a period longer than a year prior to the commencement of the proceedings, and certainly a year prior to the hearing before the Justices. In the circumstances, I would answer paragraph 6.1 in the negative. I consider, with respect to the Justices, who it appears were not referred to any of the relevant authorities, that they acted wrongly to enforce arrears that were effectively well over a year old at the time when they dealt with the case.

I turn to the next question, paragraph 6.2 of the case:

Reference is made, again on the instigation of those advising Mrs King, to C v S (Maintenance Order: enforcement) 1997 1 FLR 298. As appears in answer to a later question, the question for the court in a case such as this is to ask itself whether it should exercise its discretion to enforce arrears of maintenance rather than, looking at the case in the other way, as to whether to make an order for remission of arrears. It seems to me that all the evidence pointed to the fact that Mrs King was hopelessly in debt and that her financial circumstances were in acute disarray. The note of the learned Justices' Clerk of the evidence given shows that that penury of Mrs King was not seriously challenged by anyone, neither the Justices nor by Mr Bunyon himself who was present. There therefore seems to be no reason that would compel the enforcement of any of the alleged arrears at the time at which that order was sought.

I turn to the third question, paragraph 6.3:

Reference is there made to the case of B v C (Enforcement: arrears) 1995 1 FLR 467, a decision of Johnson J. My answer to the previous question indicates that I also think, with respect to the Justices, that they misdirected themselves in law in looking at the matter as a matter of their discretion to remit rather than their discretion to enforce, as that case indicates they should have done.

I need say no more about that and, as I say, unfortunately I consider, in the absence of full submissions on the law, the Justices were led into error.

Question 6.4:

I fail, I am afraid, to understand the rationale of the answer to that question. I do not see how ability to pay a nominal amount at the time of the order leads to the proper exercise of the discretion by way of enforcement of a figure in the sum of £3,000. One simply does not seem to follow from the other. In the absence of a full explanation, as always in these cases with regret, I decide that the Justices' decision was wrong.

The final question, 6.5:

Again, at the instigation of the appellant's representatives, the Justices refer to the case of Charilaou v Charilaou of 9th October 2000, a decision, I think, of Munby J, which held that in any such case the question must always be whether there really is money available from which a respondent could satisfy the arrears alleged. Miss Mashembo submits that even if all the other questions went against her, it was as plain as a pikestaff, at the time when the case came before the Justices, that Mrs King did not have the means to pay that sum, or any sum of significance at all. Again, I answer the question posed by saying that there was not sufficient evidence before the Justices that required them to direct that the £3,000 should be paid.

In the circumstances, I fully understand why the Justices reached an erroneous decision in this case; they were just not taken to the relevant law, as they should have been, and accordingly, I propose to allow the appeal and I will hear Miss Mashembo on the proper form of order.

MISS MASHEMBO: My Lord, thank you for that. My Lord, the course in previous cases appears to be that your Lordship would please remit all out standing arrears, which as you know is £3,000.

MR JUSTICE McCOMBE: I do not have to send it back to the Justices, or anything like that?

MISS MASHEMBO: My Lord, no. It may be sensible also to discharge the order that the magistrates made on 25th January 2006.

MR JUSTICE McCOMBE: That seems to be sensible. Could you draft up an order and submit it for my signature, please?

MISS MASHEMBO: Yes, of course. May I have a public funding detailed assessment for my costs?

MR JUSTICE McCOMBE: Yes, you may have detailed Legal Aid assessment for your costs. Thank you very much for your assistance. Your arguments, both in writing and orally, were very helpful.