Child Care Solicitors

There are a variety of steps which can be taken to enforce a financial order which has not been fully complied with. However it should be noted that before any process is issued for the enforcement of an order governed by the Family Proceedings Rules 1991, for the payment of money to any person, an affidavit (sworn statement) must be filed with any application, verifying the amount due under the existing order and clearly showing how the amount due has been calculated.

The courts permission is required to enforce any arrears of maintenance in the event arrears are outstanding for more than 12 months before the issue of the enforcement proceedings.

Below are some of the procedures available to a creditor when looking to enforce a financial order:

Oral Examination

An oral examination is a means of having the debtor orally examined with a view to establishing:
- The ability or otherwise to meet the substantive order and any related order for costs;
- The most appropriate method of enforcement

Charging Order

If the debtor has a property then a court may grant a charge over the debtor’s interest in that property. The charge provides security for the outstanding monies. Once a charging order has been obtained, the court may subsequently order a sale of the charged asset (under separate proceedings) so that the creditor can be paid his/her money.

The District Judge may make first make the charging order temporarily (charging order nisi) and set a return date hearing in order to make it absolute. A copy of the order should then be served upon the appropriate register so as to ensure that the interest of the judgement creditor is recorded, for example at HM Charges Registry, the Land Registry or with a company registry (in respect of a stock or share holding).

A charging order is not itself a means of enforcement. Once a charging order is obtained, the creditor may apply for an order for sale of the debtor’s property to realise the debt in the event that the debtor fails to pay the amount due.

Garnishee Order

A garnishee order nisi (interim order) freezes the debtor’s assets which are in the possession of a third party (the garnishee) in order to enforce arrears of periodical payments, lump sum orders, costs orders and undertakings to pay school fees. This is subject to a minimum of £50.00. Obvious examples of a garnishee are high street banks and building societies but can also be an individual.

Judgement Summons

This is where a debtor is required to appear before a High Court judge or Circuit judge to be examined on oath as to his/her means. Orders which are enforceable in this way are orders for periodical payments (where there are arrears), lump sums and in come circumstances, those for costs. These are ‘quasi’ criminal proceedings with all the procedural rights that this entails.

An order committing a debtor to prison will not be made unless it is proved beyond reasonable doubt that the debtor has or had the means to pay and that he has neglected or refused to pay. It is difficult to prove, beyond reasonable doubt, that someone has had means to pay and has deliberately chosen not to do so.

Failure to attend court for examination may ultimately result on the debtor being committed to a term of imprisonment for a period of not more than 14 days.

Attachment of Earnings Orders

The procedure is a means of enforcing a periodical payments order by requiring an employer to make deductions directly from the debtor’s earnings and to make regular payments direct to the court which will then be forwarded to the creditor.