Consent Order Recitals – Are they enforceable in the same way as an Order?

In a recent case, BSA v NVT [2020] EWHC 2906 (Fam) the enforceability of Consent Order recitals was one of a number of issues the Court had to address. In this post, we summarise the key points in the case and the judgement relating to enforcement of recitals in a Consent order.


The parties are parents of 2 children. The children live with the mother, in the former home and the father lived in Switzerland. In 2018, the mother applied for financial provision for the children under Schedule 1 to the Children Act 1989.

A consent order was agreed upon, which provided for a housing fund for the mother of £2.75 million to purchase a new home, along side maintenance and other capital sums and a costs allowance.

The father failed to provide the housing fud and the mother applied to enforce the order. The father then also applied for s.8 orders under the Children Act 1989 and matters were consolidated.

In September 2019, the mother applied for assistance with her legal costs and for variation of the maintenance. She applied for judgment summons on 7 October 2019.

Before HHJ Oliver, the following order was made:

  • An order for financial disclosure from F;
  • Endorsement the order of December 2018 with a penal notice;
  • A costs allowance order in favour of Mother; and
  • Set the matter down for a further hearing.

The father appealed. Amongst other things, he submitted that the judge 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.

Enforcement and Committals

In this post we are focussing on the enforceability of recitals in a Consent order. (The issues and framework for appeals generally and specifically as they applied in this case can be found set out in the judgment here).

The father’s case on this aspect of the Appeal was that:

  • The matters said to have been breached by him (F) were recitals to the 2018 consent order and so not terms ordered by the court itself.  The mother claims that the father is in breach of agreements which form part of the recital to the court order dated 11 December 2018. It is submitted that these agreements constitute contractual arrangements between the parties and do not form any part of the order which follows thereafter.
  • Those matters went beyond the allowable orders the court might make in Schedule 1 proceedings. The 2019 order provided a mechanism by which a property should be purchased for the Mother and the children and provided on a long lease, which was not an order the court could have made. The agreement which the father has allegedly breached falls outside of what could have been made in terms of an order under Schedule 1 of the Children Act. The terms of the agreement go beyond what is permitted in the statute and accordingly are unenforceable by the family court.

In the judgment, Williams J. refers to Thorpe J in H v H (Financial Provision) [1993] 2 FLR 35 wherein no issue was taken 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.”

Williams J goes on to add, “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.”

“The particular difficulty 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.” [emphasis added]

Further, “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.”


Recitals are enforceable in the same way as if part of the formal ‘order’, and where the terms of the recital are in line with what the court has power to order in any event.


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