The enforceability of a recital - BSA v NVT [2020] EWHC 2906 (Fam)

In 2018 the Mother commenced proceedings under Schedule 1 to the Children Act 1989. The parties agreed a consent order concluding those proceedings on 11th December 2018. In summary the order recorded the parties’ agreement that the Father would make a housing fund of £2.75 million available for the purchase of a new home for the Mother and the children. It also made provision for periodical payments and some other capital sums and a costs award.

Thereafter the Father failed to provide the housing fund and so on 23rd July 2019 the Mother applied for enforcement of the December 2018 order and a week later the Father began section 8 Children Act 1989 proceedings. The two proceedings were then consolidated. The children were joined with the benefit of a guardian.

The matter came before Mr Justice Williams on appeal by the father of an order of HHJ Oliver dated 8th October 2019 on the basis amongst other things that HHJ Oliver was wrong in allowing enforcement or committal for breaches of an agreement that do not constitute an order of the court and that the judge was wrong in allowing enforcement or committal for breaches of an agreement where that agreement could not have been made as an order in Schedule 1 proceedings.

Part of the Father’s appeal was that the matters said to have been breached by the Father were recitals to the December 2018 consent order and thus not terms ordered by the court itself. They merely established contractual terms which might be enforceable in civil proceedings. Secondly those matters went beyond the allowable orders the court might make in Schedule 1 proceedings. To allow enforcement of such terms would be going beyond that permitted by statute.

Thorpe J in H v H (Financial provision) [1993] 2 FLR 35 took no issue with the proposition that a recital can be enforced as if it had been an order of the court. Atkinson and another v Castan and another (1991) The Times, April 17 is cited in support. Woolf LJ said: “It is clear from that document first of all that the compromise was set out in full in the recitals; secondly, that it was intended that the compromise so set out should be included as part of the record of the decision of the court; thirdly, that the purpose of this being done was to ensure that the compromise would have the added status which results from a compromise being part of or incorporated into a decision of the court; fourthly, that the obvious purpose of this added status was to put the plaintiffs in a position where they would have the advantages, which would not otherwise be available, of going back to the court in the existing action to have the compromise enforced if the court was prepared to make the necessary orders to achieve this result; and fifthly and finally, that in these circumstances it was implicit, although not express, that there should be liberty to apply for the purposes of enforcing the action. When the matter came before the court, the court had a discretion as to whether or not in the circumstances to make the further orders. On the material, which was before the judge in this case, there was ample reason why he should regard it as sensible and desirable that the plaintiffs should not be required to bring a fresh action. He then made the orders to which I have already referred.”

At paragraph 34 Mr Justice Williams said “It would be surprising if the detailed and comprehensive agreement that the parties reached securing the future material needs of the children and crystallised on the face of an order in the formality with which it was expressed was not intended to be legally enforceable. For the father to suggest that this is not an enforceable order but merely an enforceable contract is surprising given that it is in the agreement part of the order of December 2018 that the full and final satisfaction clauses are found. It seems improbable that the mother would not have wished to have the full arsenal of enforcement powers open to her should the need arise and should voluntarily accept enforcement by contract action only in order to assist the father in terms of his tax liabilities.”

He goes on at paragraph 37, “The particular difficult with the father’s submissions is that the Penal notice was attached to the December 2018 order not the February 2019 order which refers to the long lease. The order of December 2018 was a standard family court consent order. Rule 33 of the FPR 2010 contains provisions relating to applications for the family court to enforce an order made in family proceedings. Orders made pursuant to Schedule 1 fall within the ambit of that Rule. The agreement contained in the December 2018 order provided for the father to purchase a property for the benefit of the mother and the children and section 1(2)(d) of Schedule 1 gives the power to make an order for the settlement of property for the benefit of the child. The recital to the December 2018 order fell squarely within what was lawfully permissible under Schedule 1. I accept the submissions made by the mother that this analysis accords with Chapter 24.43 of Rayden and Jackson on Divorce which states that, “where an order of the court consists in part of a recital containing an agreement imposing an obligation on a party, and in part an order, the recital may be enforced provided the court would have had jurisdiction to make an order in like terms”. The December 2018 order complies with this requirement. In any event the December 2018 order contains other matters whether in the recitals or in the formal part of the order (including periodical payments) which plainly would permit the court to attach a penal notice to it. The penal notice that HHJ Oliver provided for was not limited to any specific paragraph of the December 2018 order but rather referred to it in its entirety. In addition I accept as submitted by Mr Day, that a penal notice is in effect a warning of the possibility of committal proceedings. Although it is part of the enforcement toolkit it is a precursor to true enforcement. The father’s arguments that the order is not capable of enforcement because it is in truth an agreement not susceptible to enforcement by committal could of course form part of a defence to an application to commit for failure to comply but I do not accept that there is any merit in the ground that the order of December 2018 could not properly have a penal notice attached to it.”

Accordingly permission to appeal was refused in respect of this ground of appeal.