Can the family court enforce charging orders over property? VS v RE [2018] EWFC 30

The recent case of VS v RE reviews the enforcement of charging orders over the property as to which court is the appropriate forum to enforce such order, following Munby P’s guidance on Jurisdiction of the of 28 February 2018.

The case before Justice Mostyn was somewhat of a surprise, having noticed that the enforcement proceedings were started in the High Court and not the Family Court. Mostyn J sought further details as to how the main case came around at the High Court as well as the enforcement application, for which the applicant’s solicitors said that only the High Court could make a charging order.

The applicant’s barrister produced a note explaining that the proceedings started with an application for a freezing order before a High Court judge. Further orders in the main case were headed as “In the High Court of Justice, Family Division”. Confusingly, the final order of Mr Justice Moor was headed “In the Family Court”. Mostyn J stated it was not possible to tell whether the case took place in the Family Court or the High Court.

Mostyn J reminded in his judgment that it is important for the Family Court to gain the respect it deserves as the specialist court dealing with all family litigation, save for very exceptional and limited cases where the case would need to be heard in the High Court. He further emphasizes that a case should not be transferred to the High Court due to a perceived complexity and that the case should be re-allocated for a hearing in the Family Court by a “judge of a High Court level” or, if appropriate, a judge of the Family Division.

The applicant believed she was entitled to the main case and the enforcement application in the High Court. Justice Mostyn stated that the applicant and her advisers were mistaken as the case should have been started in the Family Court.

Following the counsel’s submissions on as to why High Court would be appropriate court to order a sale of property, Mostyn J stated it would be an “absurd” for a Family Court to have a power to order a sale of property at an interim stage or at final stage but not in enforcement proceedings after the grant of a charging order.

Mostyn J commented:
“This case is a classic example of lawyers rushing off to the High Court at the first sign of complexity. This is a practice that must cease. The Family Court must be recognised as the sole forum for resolution of all family cases save for those specified in the Schedule to the President’s Guidance.”