No. FD01D08149 
Neutral Citation Number: [2013] EWHC 3688 (Fam)

IN THE HIGH COURT OF JUSTICE 
FAMILY DIVISION

Royal Courts of Justice
Wednesday, 6th November 2013

Before:

MR JUSTICE HOLMAN
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B E T W E E N :

	  GABRIEL WILLIAM CONSTANTINIDES	Appellant

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	    YOSEFFA JOZEFIN CONSTANTINIDES	Respondent
	
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Miss Sassa-Ann Amouche appeared on behalf of the appellant/husband

The respondent/wife appeared in person, assisted by a McKenzie friend, Mrs Esta Keen

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J U D G M E N T
MR JUSTICE HOLMAN:  
	Introduction and the issue
1	I am giving this judgment in public, and I have heard the whole case in public.  The appellant, who was committed to prison, is Gabriel William Constantinides.  The respondent to the appeal is his former wife, Yoseffa Jozefin Constantinides.  For convenience I will call them respectively the husband and the wife.  

2	By an order made on 4th July 2013 District Judge (Magistrates’ Courts) Crane, sitting in the Tottenham Magistrates’ Court, committed the husband to prison for six weeks for non payment of an order for periodical payments (i.e. maintenance) made in divorce proceedings between the parties.  The next day, 5th July 2013, the husband gave notice of appeal to the High Court.  He was released on bail.  For various reasons the appeal is only now being heard today, 6th November 2013.  The husband has surrendered to bail and is present in the courtroom today.  

3	I can summarise the essential factual background quite shortly.  There was a relatively brief marriage between these parties which was dissolved long ago by a decree absolute of divorce.  They have one child.  Financial provision for the child is governed by the Child Support machinery and is not relevant to the present appeal.  

4	On 15th July 2004, in the Principal Registry of the Family Division, District Judge Maple made an order that the husband must pay periodical payments to the wife with effect from 1st October 2004 for their joint lives, or until her re-marriage or further order, at the rate of £750 per month.  It is common ground, and accepted by the husband today, that between then and now, over nine years, he has not paid one single penny under that order.  The arrears were stated by the district judge to stand at about £78,000 by the time of the hearing before her in July 2013.  

5	Between 2004 and now the wife has striven again and again to enforce the order and at least obtain payment of something.  The methods of enforcement that she has resorted to have included an attachment of earnings order and registration of the order in the appropriate magistrates’ court, namely, the Brent Local Justice Area Family Proceedings Court.  At one stage, shortly after the order was made, the husband declared himself bankrupt, but the wife obtained an annulment of that bankruptcy on the grounds that it was merely a sham designed to frustrate the maintenance order.  

6	In 2005, 2006, 2007 and 2012 (twice) complaints were made to the Brent Local Justice Area Family Proceedings Court of the mounting arrears.  Also during 2012 the husband issued an application in the Principal Registry of the Family Division to vary downwards the underlying maintenance order.  It was during the course of a directions hearing in relation to that application at the Principal Registry of the Family Division on 28th February 2013 that the husband was suddenly arrested under some warrant for his arrest and taken that day to the Highbury Corner Magistrates’ Court.  As I understand it, the district judge sitting in that court that day was somewhat bemused as to what was going on, and in the upshot there were adjournments until a final substantive hearing on 4th July 2013, as I have said.  

7	The district judge (magistrates’ courts) gave a written ruling on 4 July.  It is clear from paragraph 10 of that ruling that there has been a sorry history over the years of the husband from time to time being in employment and/or having other sources of income, such as the rent from some restaurant premises which he owned in conjunction with his mother.  Yet he has never paid anything at all towards the underlying order.  It also appeared from the district judge’s narrative of the history that currently (i.e. as of July) the husband appeared to be living at the home of his own mother and claimed to be without income, capital, or other assets.  

8	Key paragraphs of the written ruling are the following.  First, at paragraph 1 the district judge recorded that she was proceeding under section 3 of the Maintenance Orders Act 1958, and section 98 of the Magistrates’ Courts Act 1980.  I will refer to those sections again later.  

9	At paragraph 9 she said:  

	“Before I can commit the husband to prison I must be sure that there has been wilful refusal or culpable neglect and that is ongoing.”  

	The district judge clearly directed herself in that paragraph that she had to be satisfied not only as to past wilful refusal or culpable neglect, but also that it was at that time “ongoing”.  Arguably, that ruling was more favourable to the husband than it needed to be, but at all events that was the ruling by which the district judge directed herself.

10	In paragraph 14 she found, so far as currently material, as follows:  

				“I find so that I am sure:

(a)	The husband is not a credible nor reliable witness.

(b)	That there has been ongoing wilful refusal to pay maintenance. 

(c)	... 

(d)	...

(e)	...

(f)	He made no attempt to make any payment when he was on benefits or when he received income from casual employment.

(g)	Since the order was made in July 2004 the husband has made no attempt to make any payment.

(h)	...

(i)	Whilst I am highly suspicious about the husband’s current income and assets, I cannot be sure that he has an income or capital or assets. 

(j)	However, I am sure that there is both wilful refusal and culpable neglect.  He has both an earning potential and could apply for benefits but he chooses not to.  I find that this is an ongoing and deliberate attempt to frustrate the maintenance order.”

11	At paragraph 15 the district judge continued:

“In relation to each of the complaints I commit the husband to prison for six weeks to run concurrently.  Total six weeks.”

	There the ruling ended.  

12		There is clearly some tension between paragraphs (b), (i) and (j) of paragraph 14.  At (b) the district judge said that she was sure that there was “ongoing wilful refusal to pay maintenance”.  However at (i) she could say no more than that she was “highly suspicious” about the husband’s current income and assets, but that she “cannot be sure” that he has [viz currently] an income or capital or assets.  However, at paragraph (j) she was able to say “I am sure that there is [viz currently] both wilful refusal and culpable neglect”.  The reason was that “he has both an earning potential and could apply for benefits but he chooses not to”.  

13	What that all boils down to, bearing in mind that she had directed herself at paragraph 9 that she had to be sure that the wilful refusal or culpable neglect “is ongoing”, is that this man was sent to prison because he currently has, in the view of the district judge, both an earning potential and could apply for benefits but chooses not to do so.  The essential issue that arises on this appeal is whether that is a lawful and sufficient basis for committing a maintenance debtor to prison.
  
	The legislative framework
14	It is next necessary to consider the relevant statutory framework.  In the county court and High Court the mechanism for enforcement of maintenance debts by imprisonment is what is known as a judgment summons.  The statutory basis of a judgment summons is section 5 of the Debtors Act 1869.  The power to commit to prison under section 5 of the Debtors Act 1869 is subject to two provisos within section 5 itself.  Proviso (2) is as follows:

	“That such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects, to pay the same...”

	Pausing there, it can be seen at once that it is fundamental and essential before a debtor can be committed to prison under section 5 of the Debtors Act 1869 that he “has or has had ... the means to pay ...”  

15		In relation to judgment summonses in the High Court or county court it is now very clearly spelled out by rule 33.14 of the Family Procedure Rules 2010 that:

	 “(1)	No person may be committed on an application for a judgment summons unless – 

		(a)	...; 

		(b)	 ...; or 

		(c)	the judgment creditor proves that the debtor – 

(i)	has, or has had, since the date of the order the means to pay the sum in respect of which the debtor has made default; and 

(ii)	has refused or neglected, or refuses or neglects, to pay that sum ...”

	Therefore, section 5 of the Debtors Act 1869 and rule 33, and in particular rule 33.14, of the Family Procedure Rules 2010 govern and also circumscribe the power to commit to prison for default in payment of maintenance in the High Court and county court.  

16		However, section 5 of the Debtors Act 1869 does not directly apply to magistrates’ courts or family proceedings courts.  That clearly follows from section 11 of the Administration of Justice Act 1970, which provides as follows:

	“The jurisdiction given by section 5 of the Debtors Act 1869 to commit to prison a person who makes default in payment of a debt, or instalment of a debt, due from him in pursuance of an order or judgment shall be exercisable only –  

		(a)	 by the High Court in respect of a High Court maintenance 
			order; and

		 (b) 	by a county court in respect of – 

			(i) 	a High Court or a county court maintenance order; or 

			(ii) 	a judgment or order which is enforceable by a court in 
	England and Wales and is for the payment of any of the taxes, contributions or liabilities specified in schedule 4 to this Act.”

17		The effect of that section and the use of the words “shall be exercisable only” seems clearly to preclude exercise of the power under section 5 of the Debtors Act 1869 by a magistrates’ court.  Further, it appears, consistent with that, that the provisions in rule 33 of the Family Procedure Rules 2010 in relation to judgment summonses do not directly apply to magistrates’ courts or family proceedings courts.  The Family Procedure Rules 2010 do, of course, extend to Family Proceedings Courts.  Rule 2.1 of the rules provides:

				“(1)	Unless the context otherwise requires, these rules apply to family 
					proceedings in -  

(a)	the High Court;

(b)	a county court; and 

(c)	a magistrates’ court.”

18		However, rule 2.1(2) continues by saying:

			“Nothing in these rules is to be construed as – 

(a)	purporting to apply to proceedings in a magistrates’ court which are 
not family proceedings within the meaning of section 65 of the Magistrates’ Courts Act 1980 ...”

19		It is therefore necessary next to pursue the paper chase to section 65 of the Magistrates’ Courts Act 1980.  Section 65(1) of that act lists a long list of statutory provisions, proceedings under which are “family proceedings”.  However, none of those provisions include section 3 of the Maintenance Orders Act 1958, under which the order for periodical payments was registered, nor section 93 of the Magistrates’ Courts Act 1980, under which the district judge was dealing with the arrears.  Further, section 65(1) continues:

				“ ... except that, subject to subsection (2) below, it does not include – 

(i)	proceedings for the enforcement of any order made, confirmed or 
registered under any of those enactments ...”

20		Subsection 65(2) provides that:

“The court before which there fall to be heard any of the following proceedings, that is to say – 

(a)	proceedings (whether under this Act or any other enactment) for the 
enforcement of any order made, confirmed or registered under any of the enactments specified ... above;

(b)	...;

(c)	...; or 

(d)	proceedings for the enforcement of a maintenance order which is registered in a magistrates’ court under Part II of the Maintenance Orders Act 1950, or Part 1 of the Maintenance Orders Act 1958 ... [as this order was] 

may if it thinks fit order that those proceedings and any other proceedings being heard therewith shall, notwithstanding anything in subsection (1) above, be treated as family proceedings for the purposes of this Act.”

21		The upshot of that appears to be that proceedings for the enforcement of a maintenance order which is registered in a magistrates’ court are not automatically “family proceedings” so as to be the subject of the Family Procedure Rules 2010, although by virtue of section 65(2) the court “may if it thinks fit order that [they] ... be treated as family proceedings ...”.  As I understand it, District Judge Crane on 4th July 2013 did not order, or apparently think fit to order, that the proceedings before her that day should be treated as family proceedings for the purposes of that Act.  Accordingly, she was not directly operating under, or bound to apply, the provisions of rule 33 of those rules.  

22		During the course of this hearing today Miss Sassa-Ann Amaouche, who appears on behalf of the appellant husband, has not been able to find or identify any other rule of the magistrates’ or family proceedings court which expressly makes provision as to, or impacts upon, the approach to be taken by such a court when hearing proceedings for the enforcement of arrears of a registered order if that court, in its discretion, does not think fit to treat the proceedings as family proceedings so as to import rule 33 of the Family Procedure Rules 2010.  

23		I stress that the researches of Miss Amaouche, and indeed of myself, during the course of this afternoon may not be exhaustive, although we have done our best.  But subject to that caveat, it seems to appear that, despite the gravity of the subject matter (viz imprisonment), the district judge was simply operating in territory devoid of any rules of court.  She was, however, applying statutory provisions which she had identified correctly in paragraph 1 of her ruling.  

24		Section 2 of the Maintenance Orders Act 1958 makes provision for registration in a magistrates’ court of maintenance orders.  Section 3 of that Act provides that:

				“(1)	Subject to the provisions of section 2A of this act and this section, a 
	registered order shall be enforceable in all respects as if it had been made by the court of registration and as if that court had jurisdiction to make it; and proceedings for or with respect to the enforcement of a registered order may be taken accordingly.”

25		Section 76 of the Magistrates’ Courts Act 1980 expressly empowers a magistrates court to commit to prison, for it provides as follows:

				“(1)	Subject to the following provisions of this part of this Act ... where 
	default is made in paying a sum adjudged to be paid by a ... order of a magistrates court, the court may issue ... a warrant committing the defaulter to prison.”

26		Section 76 is subject to the later following section 93, to which the magistrate had expressely referred.  Section 93(6) provides as follows:

	“A magistrates’ court shall not impose imprisonment in respect of a default to which a complaint under this section relates unless the court has enquired in the presence of the defendant whether the default was due to the defendant’s wilful refusal or culpable neglect, and shall not impose imprisonment as aforesaid if it is of opinion that the default was not so due ...”

27	Section 93(7) fixes a maximum term of six weeks imprisonment, which was the term imposed by the district judge in this particular case.  So the power which the district judge was directly and expressly exercising was that under section 76 of the Magistrates’ Courts Act 1980, and the relevant restriction, or limitation, upon that power was that in section 93(6), which I have just quoted. 

	Analysis
28		It is to be noted that there is some difference in the wording between section 93(6) of the Magistrates’ Courts Act 1980, which is applicable when a magistrates’ court is seised with whether or not to imprison for default in paying a maintenance order, and that in the proviso to section 5 of the Debtors Act 1869, which applies when the High Court or a county court is so seised.  Section 93(6) of the 1980 Act requires that “the default was due to the defendant’s wilful refusal or culpable neglect”.  The proviso to section 5 of the Debtors Act does not employ the words “wilful” or “culpable”.  The proviso, however, does require that the court is satisfied that the person making default “either has or has had ... the means to pay ... and has refused or neglected, or refuses or neglects, to pay ...”

29		It seems to me that Parliament could not possibly have intended, when enacting the later Magistrates’ Courts Act 1980, but not then or subsequently amending the material part of section 5 of the Debtors Act 1869, that the actual criteria, or test, for imprisonment should differ according to whether the proceedings happened to be taken in a magistrates’ court or in a county court, or in the High Court.  It is, frankly, inconceivable that the payer under a given maintenance order should be at risk of being imprisoned by less restrictive criteria in a magistrates’ court than in one of the higher courts.  

30		The 1869 Act makes express reference to “the means to pay”.  The 1980 Act does not make reference to the means to pay, but does expressly employ the words “wilful” and “culpable”.  It seems to me that the two sections must be construed and applied so as to have the same practical result and effect.  Accordingly, a magistrates’ court cannot find for the purposes of section 93(6) of the 1980 Act that there has been “wilful refusal or culpable neglect” unless it is satisfied that the person in default “has or has had ... the means to pay ...”   Further, although, as I have explained by tortuous examination of the relevant statutory provisions, rule 33 of the Family Procedure Rules 2010 does not directly apply to proceedings of this kind in the magistrates’ court, nevertheless a magistrates’ court should proceed in a way that has regard to the very clear requirements of that very recent rule.  

31		The upshot of all of that is that, in my view, a magistrates’ court cannot lawfully commit a person to prison for default in paying a maintenance order, or a maintenance order which has been registered in that court, unless it is satisfied that the payer has, or has had, the means to pay.  The question then arises: what did Parliament intend by the words “the means to pay” where they appear in the Debtors Act 1869; and indeed what did the makers of rule 33.14 of the Family Procedure Rules 2010 intend by the same words “the means to pay” where they appear in that rule?  

32		I do not intend by this ex tempore judgment to attempt any sort of exhaustive or definitive definition of the phrase “the means to pay”.  Indeed a court should never attempt to define a loose phrase which Parliament has selected but not chosen further to define.   But, in my view, the ordinary and natural meaning of the word “means” is income or assets of some kind.  It is noteworthy that in section 25 of the Matrimonial Causes Act 1973, at section 25(2)(a), Parliament expressly referred to “the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have ... including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire”.

33		It is very clear from that provision that at the time of considering whether or not to make financial provision, and if so what financial provision to make, the court must have specific regard not only to current income, property and other financial resources but also to “earning capacity”, including any reasonable increase in that capacity.  Parliament has expressly spelled it out.  But there is nothing to that effect either in the proviso to section 5 of the Debtors Act 1869 or in the recent rule 33.14.  That, to my mind, is not surprising.  It is one thing when the court is deciding whether or not to make a maintenance order, or the level of that order, to take into account current or likely earning capacity, but it is a very different matter to imprison a person for not maximising his earning capacity.  It would, frankly, be intolerable if a person was liable to be imprisoned on an argument that although he was, say, earning £20,000 a year he ought to be earning £30,000 a year.  It is scarcely more tolerable to imprison somebody on an argument that although in fact he is not earning, and has no income, he could and should be earning.  It seems to me that those sorts of considerations are far too speculative a foundation for the ultimate and grave sanction of imprisonment.  

	Outcome
34		I return, therefore, to the final parts of the reasons and reasoning of the district judge.  She had expressly said that she cannot be sure that the husband has currently an income, or capital, or assets.   But she went on to say that there “is both wilful refusal and culpable neglect”, and her expressed reason for that was simply that “he has both an earning potential and could apply for benefits but he chooses not to”.  It seems to me that in the end the only matter of which this district judge was sure (which is the required standard of proof) was that the husband has “earning potential” which he was choosing not to exercise or maximise.  

35		For the reasons that I have now given and explained, it seems to me that that is not a sufficient, justifiable or lawful basis for imprisoning anybody.  There is, of course, the alternative basis in para.14(j) that he “could apply for benefits but he chooses  not to”.  The district judge did not identify in any way at all exactly what “benefits” she considered he could apply for, nor what the level of them would be.  Generally speaking, benefits are designed only to provide relatively subsistence levels for the recipient of the benefit and not to provide a surplus out of which the recipient can pay maintenance.  Even if there is scope for some very small surplus, it is fanciful to suppose that there are any benefits to which this husband could conceivably be entitled that would enable him to make maintenance payments remotely approaching £750 per month, still less to pay anything off the arrears.  

36		In my view, therefore, this decision to commit him to prison was based on flawed and ultimately unlawful reasoning.  I will accordingly allow the appeal and discharge the order for committal to prison that was made on 4th July 2013.  

	Afterthought

37	    When later correcting the transcript of this oral ex tempore judgement for typing and similar errors, I have counted that I was constrained to quote from eight sections or subsections of six statutes, spanning over 100 years from 1869 to         1980, and also two different rules of court.   To the respondent wife in this case, who acts in person, this judgment must have seemed, and to the lay reader, and perhaps even a lawyer, this judgment must now seem like gobbledegook, and the eyes glaze over.   The issue was the very serious one of whether a man was lawfully sent to prison.   It ought to be possible to resolve and be clear about it by a much more simple process, particularly as the jurisdiction is one which may frequently be exercised by lay magistrates in circumstances where (as in this case) one or both parties may increasingly act in person.   This area of the law is in dire need of modernisation, simplification and reform.