16. The Act allows UK courts to enforce maintenance orders for financial payments to a dependent made in a reciprocating country. X is a reciprocating country.
Referring to court order as a child maintenance order
17. On 7 July 2017, the Maintenance Enforcement Business Centre (MEBC, part of HMCTS) received a request from the X courts asking Mr A to pay maintenance to his mother, under the Act.
18. The MEBC requested more information from the X authorities on 16 November 2017.
19. Following receipt of information from the X authorities, an assistant justices’ clerk sent a request to Mr A dated 7 August 2018 to provide financial information to be considered under the maintenance order. The request stated: ‘The matter is treated as an application pursuant to Schedule 1 of the Children Act 1989.’
20. Mr A says he was confused about whether the request was correct or enforceable, as the initial correspondence referred to the Children Act 1989 and requested him to pay maintenance to his mother and not his child. Mr A sent emails to HMCTS requesting it give him time to seek legal advice before responding.
21. Mr A told us he had difficulty finding someone to provide legal advice because of the unusual nature of the request. He told us he was eventually able to appoint someone.
22. When HMCTS did not receive a response to its request of 7 August 2018, it sent a letter to Mr A on 5 September 2018 agreeing to extend the deadline for responding to the request to 18 September 2018. This letter stated it was regarding the ‘Maintenance Orders (Reciprocal Enforcement) Act 1972’.
23. We recognise how Mr A was confused by the wording referring to the ‘Children Act 1989’ and why as a result he thought it was not enforceable. We accept Mr A was also confused when subsequent correspondence referred to the matter as ‘Maintenance Orders (Reciprocal Enforcement) Act 1972’, as this was different to the previous letter.
24. When we decide whether something has gone wrong, we look at what should have happened. To determine what should have happened in HMCTS’ communication with Mr A, we referred to our Principles of Good Administration. These state being customer-focused means organisations should:
• provide services that are easily accessible to their customers. Policies and procedures should be clear and there must be accurate, complete and understandable information about the service • aim to ensure that customers are clear about their entitlements, what they can and cannot expect from the public body, and about their own responsibilities • communicate effectively using clear language that people can understand and that is appropriate to them and their circumstances.
25. When considering what should have happened, we realise HMCTS’ administrative staff are not legally trained. We also recognise there is no standard procedure for HMCTS to deal with parental maintenance orders because there is no equivalent in UK law. The matters involved were complicated and using legal language was in our view at times unavoidable.
26. It is our view that the wording in the correspondence of 7 August 2018 was referring to how HMCTS was going to treat or process the request. It did not state the application was pursuant to Schedule 1 of the Children Act 1989. As a similar request for a child to pay maintenance to their parent does not exist in UK law, HMCTS was considering how it could process the application and request the necessary information. We have seen no evidence that Mr A or his legal representative asked HMCTS to clarify why the wording in the request of 7 August said it was being ‘treated as a child maintenance order’.
27. It is our view that the wording, while not entirely clear, was not incorrect. We do not think HMCTS communication fell so far short of our Principles of Good Administration that it indicates any failing on the part of HMCTS.
Jurisdiction to enforce the order
28. Mr A complains HMCTS did not have the authority to enforce the order against him, as English courts cannot enforce the order. He states this is because no mechanism exists in UK law for a child to pay maintenance to their parent.
29. The paperwork from the X court states: ‘This order is made provisionally and shall have no effect until it is confirmed by a competent court in the United Kingdom (Country/Territory).’
30. In their skeleton argument, Mr A’s legal representative stated: ‘The striking feature of the order that is sought to be confirmed is that it is nothing to do with a child, or even a former spouse. It is an order requiring an adult son to pay maintenance for his mother. It is a concept that has no counterpart in English law or the law of any part of the United Kingdom. It could not possibly be effective if expressed within an English order.’
31. HMCTS sought advice from an assistant justice’s clerk and an internal legal adviser before deciding what action to take.
32. HMCTS sought advice from a circuit judge as part of its complaint response. The judge advised: ‘My view is that the successive legal advisors were right to conclude that the Provisional Order procedure should be applied to this case. It was up to a judge, not the MEBC legal advisors, to hear the case and decide whether the legal arguments put forward on behalf of Mr A were correct or not. So I do not consider there is any substance in the complaint that MEBC should never have pursued the case.’
33. Mr A emailed the MEBC as part of his complaint on 11 September 2020. Mr A questioned why the MEBC was acting without the confirmation or advice of a judge. He believes this meant they were making presumptions and requesting things a judge may not have done. Mr A told us he believes the judge’s advice is clear: only a judge could have made the decision to confirm the order in an English court.
34. HMCTS told us the assistant justice’s clerk who requested the initial information from Mr A and the legal advisers who provided advice on the matter were acting in a judicial capacity. The law governing our work allows us to investigate HMCTS’ administrative actions but does not permit us to investigate actions taken by judges or magistrates, or actions taken by HMCTS in a judicial capacity or under judicial instruction. This includes decisions taken about case management. We cannot comment on the validity of the legal advisers’ instructions to court staff, or criticise court administrative staff for following those directions. We can see from the judge’s advice that it was ultimately for a judge, and not the legal advisers, to decide how the case should be handled. We appreciate Mr A is frustrated that this was only identified as part of HMCTS’ complaint response.
Delay in listing the order before a judge
35. Mr A says HMCTS followed incorrect legal advice to continue with the enforcement of this order. Mr A says HMCTS should instead have put the matter before a judge to decide whether HMCTS had authority. As a result, he says the whole process continued for two years unnecessarily, despite his lawyer advising HMCTS it was incorrect. Mr A incurred unnecessary expenses in pursuing the matter and obtaining his own legal advice. Mr A also says this caused him unnecessary and prolonged stress and anxiety.
36. Mr A, his solicitor, HMCTS and the circuit judge who advised HMCTS as part of the complaint process all agreed a judge should have decided whether to confirm the order. This did not happen because a legal adviser told HMCTS to send the skeleton argument to the X authorities. A delay in obtaining their response meant Mrs E died before Mr A made any payments.
37. We explain in detail below how we managed the case and where there were delays in reaching a decision.
38. On 7 July 2017, the X court sent HMCTS an application requesting that it confirm an order made in X for Mr A to make maintenance payments to his mother.
39. On 16 November 2017, HMCTS asked for information from the X authorities, including a copy of the X legislation allowing parents to make such claims and the terms of the order.
40. HMCTS sent a letter to Mr A on 25 July 2018 advising of the request it had received. Mr A was not aware a request had been made before this point, as he did not have much contact with his mother. Mr A sought advice from a solicitor as to how he should proceed.
41. In December 2018, an assistant justice’s clerk requested that Mr A’s solicitor provide a skeleton argument ‘setting out why they believed there was no jurisdiction’. They also stated they would seek a response from the X authorities. Mr A’s solicitor provided their skeleton argument on 19 December 2018 and requested that a judge consider the application.
42. Mr A’s solicitor followed up their request several times throughout February and March 2018 to have a judge consider the skeleton argument. At this point, HMCTS incorrectly told Mr A’s solicitor it would list the matter for a hearing as it did not accept the skeleton argument.
43. Following advice from a legal adviser, HMCTS did not put the application before a judge, as it had advised Mr A it was doing, but instead forwarded the skeleton argument to the X authorities for comment on 28 March 2019. Mr A queried what was happening with his solicitor by email as he was concerned whether he could afford the ongoing costs. HMCTS did not update Mr A or his solicitor as to what was happening.
44. The X authorities replied to HMCTS on 19 September 2019. HMCTS asked an internal adviser for guidance on the reply, which it got on 24 December 2019. HMCTS did not provide Mr A with any more updates at this point.
45. HMCTS next wrote to Mr A on 31 January 2020, stating incorrectly it was in relation to a ‘spousal order’. Mr A responded on 3 February, providing a copy of his mother’s death certificate. HMCTS wrote to Mr A on 6 February stating it would be taking no further action.
46. In the circuit judge’s view, in the advice they provided to HMCTS as part of its complaint response, the complaint about delays in putting the order before a judge did have substance, and the order should have been put before a judge in early 2019. The circuit judge also explained that more information might have been needed from the X authorities before a judge could decide, ‘but at least Mr A would have known that his case was in the process of being decided by the Court’.
47. To consider what should have happened in this case, we again referred to our Principles of Good Administration, which state being customer-focused means organisations should:
• aim to ensure that customers are clear about their entitlements, what they can and cannot expect from the public body, and about their own responsibilities • do what they say they are going to do. If they make a commitment to do something, they should keep to it, or explain why they cannot, and they should meet their published service standards or let customers know if they cannot • behave helpfully, dealing with people promptly, within reasonable timescales and within published time limits. They should tell people if things take longer than the public body has stated, or than people can reasonably expect them to take.
48. In its response to Mr A, HMCTS accepted it followed incorrect legal advice in asking the X authorities for clarification. It accepted this delayed the process and meant Mr A lost the opportunity for a judge to consider his solicitor’s skeleton argument.
49. As we have explained, the law we work under prevents us from investigating the actions of HMCTS’ legal adviser or any actions HMCTS administrative staff took following its instructions. This is because the legal advisers were working under the authority of the judge. We cannot comment on this specific aspect of HMCTS’ actions, and it is clear that factors outside of our remit were largely responsible for the delays. We have not identified any signs that the administrative actions of HMCTS staff significantly or extensively delayed progress of the case.
50. Mr A also told us HMCTS did not keep him updated during this time, so he did not know what was happening and this added to his stress and anxiety. We have looked at whether HMCTS followed our Principles of Good Administration in its correspondence with Mr A and in providing updates to him.
51. On several occasions in 2019, Mr A and his solicitor asked HMCTS for updates on what was happening with the skeleton argument. They also repeated their requests that the matter be transferred to the Central Family Court in London because of its complexity. HMCTS informed Mr A’s solicitor in February 2019 that it would list the matter for a hearing. Then, in March 2019, HMCTS said it was waiting for written representation from the X authorities and would advise on its actions when it received this representation.
52. HMCTS provided no more updates to Mr A throughout 2019. HMCTS did not update Mr A when it received a response from the X authorities in September 2019, in October 2019 when it referred the X authorities’ response for more legal advice or when it received that legal advice in December 2019.
53. HMCTS next contacted Mr A on 31 January 2020 when it incorrectly sent him a spousal provisional maintenance order instead of a parental provisional maintenance order.
54. Our Principles of Good Administration state that public bodies ‘should do what they say they are going to do. If they make a commitment to do something, they should keep to it, or explain why they cannot’. It is our view HMCTS did not follow our principles by not doing what it said it would do in February 2019. While HMCTS’ administrative staff could not control whether the matter would be listed for a hearing, we have seen no evidence that HMCTS explained to Mr A the reasons why it did not list the matter for a hearing. We find this was a failing by HMCTS.
55. We accept that HMCTS did inform Mr A it was asking the X authorities for more information in March 2019 and that it did not receive this information until September 2019. While we cannot say HMCTS was responsible for the time it took the X courts to respond, HMCTS did not update Mr A at any time after March 2019 despite his requests. When it did write to him to let him know what was happening, it complicated the situation by referring incorrectly to a spousal order.
56. Our Principles of Good Administration state a public body: ‘should behave helpfully, dealing with people promptly, within reasonable timescales and within and published time limits. They should tell people if things take longer than the public body has stated, or than people can reasonably expect them to take.’ It is our view that HMCTS did not follow our principles. It is our view that Mr A could have reasonably expected HMCTS to update him during this time, when it received the response from the X authorities or to say it was asking for more legal advice.
57. When Mr A complained in February 2020 about HMCTS’ failure to put the matter before a judge, as it had stated it would in February 2019, HMCTS did not respond to his complaint. Mr A then submitted another complaint in March 2020 asking for his complaint to be taken further. HMCTS did not respond. In July 2020, Mr A asked for a response to his complaint. HMCTS did not respond to his complaint and told him it had closed his case.
58. Considering all of the information, it is our view that HMCTS did not follow our Principles of Good Administration in the way it handled Mr A’s solicitor’s correspondence and requests for updates about progress. This meant that HMCTS did not update Mr A for over 12 months, even though progress was made during this time. We find that HMCTS’ actions fell far short of our principles and represent maladministration (fault) on its part.
Injustice
59. Mr A told us he suffered financial loss because of HMCTS’ errors and the confusion it caused because he had to pay for ongoing solicitor costs, in particular for following HMCTS’ instruction to his solicitor to file paperwork with the court. Mr A also told us the lack of communication from HMCTS and not knowing what was happening caused him anxiety and distress.
60. HMCTS has accepted it followed incorrect advice to ask for more information from the X authorities, which delayed listing the matter before a judge to decide on jurisdiction. As explained above, we cannot comment on this matter. In its complaint response, HMCTS offered to pay Mr A’s solicitor’s fees from February 2019, amounting to £483. It also offered to pay £250 for the lost opportunity to have the case put before a judge, and £250 ‘for the stress, frustration and upset that was caused between February 2019 and February 2020’.
61. We find HMCTS’ communication with Mr A to be at fault. To decide whether we should uphold his complaint, we considered the impact of HMCTS’ poor communication on him and whether the payment it has already offered is enough to put that right, in line with our Principles for Remedy. This means:
• if possible, organisations should return the complainant and, where appropriate, others who have suffered similar injustice or hardship, to the position they would have been in if the fault or poor service had not happened • if that is not possible, organisations should compensate the complainant and others appropriately • organisations should fully and seriously consider all forms of remedy (such as an apology, an explanation, remedial action or financial compensation), and • organisations should provide the appropriate remedy in each case.
Legal costs
62. We have considered whether the failings in communication we identified meant Mr A incurred any unnecessary legal fees above what he would have had to pay because of his late mother’s application against him.
63. Email correspondence between Mr A and his solicitor dated 14 December and 20 December 2018 shows that Mr A was concerned about high legal costs, and this was a source of worry to him. As the poor communication we have identified happened largely after the skeleton argument had been submitted in December 2018, we cannot say most of Mr A’s legal costs would have been avoided, if HMCTS’s communication had been better.
64. HMCTS has already offered to pay for Mr A’s legal costs after this point. It is our view that any additional legal costs Mr A incurred after this point because of HMCTS’ poor communication have already been put right, in line with our Principles for Remedy.
Stress and anxiety
65. Mr A told us that not knowing what was happening with the matter and why HMCTS had not accepted his skeleton argument over the period from December 2018 to February 2020 caused him distress and concern. This was because he was unsure what was happening and he believed he may have been asked at any point to make backdated payments when he had already paid his solicitor to produce the skeleton argument, which was not used anyway.
66. Mr A told us the incorrect reference to a spousal order rather than an order for parental maintenance in the order of 31 January 2020 caused him more stress and worry. It confirmed his belief that HMCTS did not know what it was doing. He felt HMCTS had ignored his solicitor’s skeleton argument and was going to pursue him for the maintenance costs by another route.
67. In its final response to Mr A on 27 October 2020, HMCTS offered to pay Mr A £250 ‘for the stress, frustration and upset that was caused between February 2019 and February 2020’.
68. We understand Mr A was in a difficult position for a long time. We have no doubt the ongoing uncertainty would have been a source of more anxiety and worry for him. We have not found HMCTS’ administrative failings affected how long it took to resolve the issue. But in our view, HMCTS’ poor communication contributed to Mr A’s distress, and had HMCTS responded to his requests for updates and provided accurate information, it could have alleviated some of his frustration. This is an injustice to Mr A.
69. We considered whether HMCTS has done enough to put things right by apologising and offering Mr A £250.
70. We have found that this does not fully put things right for Mr A. Having considered HMCTS’ complaint-handling guidance, our guidance on making payments in recognition of the injustice suffered and precedent cases (against which we can compare Mr A’s case), it is our view that £250 does not fully remedy the impact of the poor communication over a prolonged period. We are partly upholding this complaint.