Secretary of State for Work and Pensions v M: HL 8 Mar 2006

The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than someone in a heterosexual relationship.
Held: The claim failed. The regulations had now been updated by the 2004 Act. In 1991 the discrimination was in accordance with the views and standards current at the time. As to the claim for infringement of her right to respect for family life: ‘Ms M’s case on respect for private life also fails, for similar reasons. There has been no improper intrusion on her private life. She has not been criminalised, threatened or humiliated. The Tribunal respectfully recorded that she and her partner ‘were living in a very close, loving and monogamous relationship.’ Her complaint is that the state has calculated her liability to contribute to her children’s maintenance under a formula which is different from (and on the particular facts of her case, more onerous than) that which would have been used if she had been in a heterosexual relationship. The link with respect for her private life is in my view very tenuous indeed. ‘ and ‘the CSA is concerned as an official intermediary, but it is enforcing a personal obligation of the absent parent. It is no more expropriating property than . . . when the civil justice system enforces a private contract by converting a contract debt into a judgment debt which can be recovered by the process of execution. ‘
Lord Walker examined the Strasbourg case law on Article 8 in the context of private life and found that ‘the unique feature’ of Article 8 in that context was that: ‘it is concerned with the failure to accord respect. To criminalise any manifestation of an individual’s sexual orientation plainly fails to respect his or her private life, even if in practice the criminal law is not enforced (Dudgeon v United Kingdom 4 EHRR 149 and Norris v Ireland 13 EHRR 186); so does intrusive interrogation and humiliating discharge from the armed forces (Smith v United Kingdom 29 EHRR 493 and Lustig-Prean v United Kingdom 29 EHRR 548). Banning a former KGB officer from all public sector posts, and from a wide range of responsible private-sector posts, is so draconian as to threaten his leading a normal personal life (Sidabras v Lithuania 42 EHRR 104). Less serious interference would not merely have been a breach of article 8; it would not have fallen within the ambit of the article at all.’

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Mance
[2006] 2 AC 91, [2006] UKHL 11, Times 14-Mar-2006, [2006] 2 WLR 637, [2006] 1 FCR 497, [2006] 2 FLR 56, [2006] UKHRR 799, [2006] 36 Fam Law 524, 21 BHRC 254, [2006] HRLR 19, [2006] 4 All ER 929
Bailii
Child Support Act 1991, European Convention on Human Rights 14, Civil Partnerships Act 2004, Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (1992/1815), Child Support, Pensions and Social Security Act 2000
England and Wales
Citing:
CitedFitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
CitedMata Estevez v Spain ECHR 10-May-2001
The claimant complained that the state did not give proper recognition of his relationship with his deceased same sex partner.
Held: The court noted the growing tendency in a number of European states towards the legal and judicial recognition . .
CitedKehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .
CitedSidabras and Dziautas v Lithuania ECHR 27-Jul-2004
Former KGB officers had been banned from employment in a range of public and private sector jobs, including as lawyers, notaries, bank employees and in the teaching profession. They complained of infringement of Article 8 taken alone and also in . .
CitedGhaidan v Godin-Mendoza CA 5-Nov-2002
The applicant sought to succeed to the tenancy of his deceased homosexual partner as his partner rather than as a member of his family.
Held: A court is bound by any decision within the normal hierachy of domestic authority as to the meaning . .
Appeal FromLangley v Bradford Metropolitan District Council and Secretary of State for Work and Pensions CA 15-Oct-2004
It was discriminatory to treat differently homosexual and heterosexual couples when considering liability for child support payments. Sedley LJ: ‘The broad effect of the material provisions is to allocate the financial responsibility of separated . .
CitedBotta v Italy ECHR 24-Feb-1998
The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
Held: ‘Private life . . includes a person’s . .
CitedGhaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
CitedKarner v Austria ECHR 24-Jul-2003
A surviving same-sex partner sought a right of succession to a tenancy (of their previously shared flat). Interveners ‘pointed out that a growing number of national courts in European and other democratic societies require equal treatment of . .
CitedRelating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics) No 2 ECHR 9-Feb-1967
The applicants, parents of more than 800 Francophone children, living in certain (mostly Dutch-speaking) parts of Belgium, complained that their children were denied access to an education in French.
Held: In establishing a system or regime to . .
CitedAbdulaziz etc v The United Kingdom ECHR 28-May-1985
Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
Held: The refusals of permission had . .
CitedNational Union of Belgian Police v Belgium ECHR 27-Oct-1975
Hudoc No violation of Art. 11; No violation of Art. 14+11
The Belgian Government failed to consult a municipal police union about legislation affecting public sector employment rights. The union’s direct . .
CitedConnors v The United Kingdom ECHR 27-May-2004
The applicant gypsies had initially been permitted to locate their caravan on a piece of land owned by a local authority, but their right of occupation was brought to an end because the local authority considered that they were committing a . .
CitedGoodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
CitedFrette v France ECHR 26-Feb-2002
A single homosexual man complained that the respondent state had made it impossible for him to adopt a child.
Held: The claim was within the ambit of article 8 as regards respect for family life, but the court dismissed the claim under article . .
CitedPretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
CitedHooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
CitedAbdulaziz etc v The United Kingdom ECHR 28-May-1985
Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
Held: The refusals of permission had . .
CitedRegina v Secretary of State for Defence Ex Parte Smith; Regina v Same Ex Parte Grady Etc CA 6-Nov-1995
A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more . .
CitedLogan v United Kingdom ECHR 6-Sep-1996
The complaint was that the mandatory child support payments meant that the father could not visit his children as often as he was entitled under the court’s order to do. The complaint of a direct breach of article 8 failed because he could not show . .
CitedGammans v Ekins CA 1950
The plaintiff had lived with a woman tenant for over 20 years and they had been regarded in the neighbourhood as man and wife.
Held: He could not thereby be deemed a member of her family for the Act of 1920. If their relationship was sexual . .
CitedDyson Holdings Ltd v Fox CA 17-Oct-1975
The defendant had lived with the tenant for 21 years until his death. They were unmarried and had no children. Reversing the County Court judge, the Court of Appeal ruled that she was a member of his family. It was absurd to distinguish between two . .
CitedS, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
CitedRegina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
CitedBellinger v Bellinger HL 10-Apr-2003
Transgendered Male/Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
CitedRegina (Reprotech (Pebsham) Ltd) v East Sussex County Council Reprotech (Pebsham) Ltd v Same HL 28-Feb-2002
The respondent company had asserted that the local authority had made a determination of the issue of whether electricity could be generated on a waste treatment site without further planning permission. The council said that without a formal . .
CitedBellinger v Bellinger CA 17-Jul-2001
Transgender Male may not marry as Female
Despite gender re-assignment, a person born and registered a male, remained biologically a male, and so was not a woman for the purposes of the law of marriage. The birth registration in this case had been correct. The words ‘male and female’ in the . .

Cited by:
CitedSmith v Secretary of State for Work and Pensions and Another HL 12-Jul-2006
The House considered whether under the 1992 Regulations a self-employed parent could use for his child support calculation his net earnings as declared to the Revenue, which would allow deduction of capital and other allowances properly claimed . .
CitedWilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
CitedAssociated Newspapers Ltd v Prince of Wales CA 21-Dec-2006
The defendant newspaper appealed summary judgment against it for breach of confidence and copyright infringement having published the claimant’s journals which he said were private.
Held: Upheld, although the judge had given insufficient . .
CitedMurray v Express Newspapers Plc and Another ChD 7-Aug-2007
The claimant, now aged four and the son of a famous author, was photographed by use of a long lens, but in a public street. He now sought removal of the photograph from the defendant’s catalogue, and damages for breach of confidence.
Held: The . .
CitedAL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
CitedGallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints HL 30-Jul-2008
The House considered whether certain properties of the Church were subject to non-domestic rating. Various buildings were on the land, and the officer denied that some fell within the exemptions, and in particular whether the Temple itself was a . .
CitedG, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .
CitedRodriguez v Minister of Housing of The Government and Another PC 14-Dec-2009
Gibraltar – The claimant challenged a public housing allocation policy which gave preference to married couples and parents of children, excluding same sex and infertile couples.
Held: The aim of discouraging homosexual relationships is . .
CitedSteinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
CitedMcLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .

Lists of cited by and citing cases may be incomplete.

Child Support, Human Rights, Discrimination

Leading Case

Updated: 11 November 2021; Ref: scu.238923

Kehoe, Regina (on the Application of) v Secretary of State for Work and Pensions: HL 14 Jul 2005

The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law which is capable in Convention law of engaging the guarantees in it. ‘Sympathetic though one must be with Mrs Kehoe, who appears to have suffered extreme frustration and a measure of loss, one cannot in my opinion ignore the wider principle raised by this case. This is that the deliberate decisions of representative assemblies should be respected and given effect so long as they do not infringe rights guaranteed by the Convention. As they have made clear, it is not for the Strasbourg institutions, under the guise of applying the procedural guarantees in article 6, to impose legislative models on member states. Whether the scheme established by the 1991 Act is on balance beneficial to those whom it is intended to benefit may well be open to question, but it is a question for Parliament to resolve and not for the courts, since I do not consider that any article 6 right of Mrs Kehoe is engaged.’
Baroness Hale Of Richmond, dissenting: ‘ . . . children have a civil right to be maintained by their parents which is such as to engage article 6 of the European Convention on Human Rights. Their rights are not limited to the rights given to the parent with care under the Child Support Act. The provisions of that Act are simply a means of quantifying and enforcing part of their rights.’ and ‘the system is trying to do. It is trying to enforce the children’s rights. It is sometimes, as this case shows, lamentably inefficient in so doing. It is safe to assume that there are cases, of which this may be one, where the children’s carer would be much more efficient in enforcing the children’s rights. The children’s carer has a direct and personal interest in enforcement which the Agency, however good its intentions, does not. Even in benefit cases, where the state does have a direct interest in enforcement, it is not the sort of interest which stems from needing enough money to feed, clothe and house the children on a day to day basis. Only a parent who is worrying about where the money is to be found for the school dinners, the school trips, the school uniform, sports gear or musical instruments, or to visit the ‘absent’ parent, not only this week but the next and the next for many years to come, has that sort of interest. A promise that the Agency is doing its best is not enough. Nor is the threat or reality of judicial review.’

Lord Bingham Of Cornhill, Lord Hope Of Craighead, Lord Walker Of Gestingthorpe, Baroness Hale Of Richmond, Lord Brown Of Eaton-Under-Heywood
[2006] AC 42, [2005] UKHL 48, Times 15-Jul-2005, [2005] 3 WLR 252
House of Lords, Bailii
Child Support Act 1991
England and Wales
Citing:
Appeal fromSecretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
At first instanceRegina (Kehoe) v Secretary of State for Work and Pensions QBD 16-May-2003
The applicant had been obliged under statute to have her claim for maintenance for her child pursued thorugh the Child Support Agency. She said that through the delay and otherwise, her claim had been lost.
Held: The statute debarred the . .
CitedGolder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
CitedMatthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
CitedJames and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
CitedZ And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
CitedHuxley v Child Support Agency CA 2000
The court gave an extensive analysis of the workings of the Child Support Act: (Lady Justice Hale) ‘It is important to bear in mind that the child support scheme is not simply a method for the State to recoup part of its benefit expenditure from the . .
CitedH v Belgium ECHR 30-Nov-1987
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings
It is for . .
CitedDepartment of Social Security v Butler CA 11-Aug-1995
The Secretary of State was not entitled to a Mareva injunction preventing the disposal of assets against a parent pending the issue of a child support assessment. The court refused a freezing order:- (Morritt LJ) ‘The Child Support Act introduced a . .
CitedPinder v United Kingdom ECHR 1984
(Commission) ‘The Commission . . recalls that the concept of ‘civil rights’ is autonomous. Thus, irrespective of whether a right is in domestic law labelled ‘public’, ‘private’, ‘civil’ or something else, it is ultimately for the Convention organs . .
CitedGovier v Hancock 1796
A wife’s agency of necessity subsisted only if the wife was justified in living apart from her husband. She would lose it for ever if she was guilty of adultery, no matter how badly her husband had behaved. . .
CitedRex v Friend 1802
Where a mother had proper custody of a child, an agency of necessity extended to her purchase of necessaries for the child as well as for herself. . .
CitedHesketh v Gowing 1804
Where a father placed his children in the care of a nurse or servant, he might have financial responsibility for necessaries bought for the child. . .
CitedRuna Begum v London Borough of Tower Hamlets (First Secretary of State intervening) HL 13-Feb-2003
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an . .
CitedV v V (Ancillary relief: Power to order child maintenance) FD 6-Jun-2001
The parties had sought a child maintenance order form the court, but the husband resiled from his agreement.
Held: Where the court was unexpectedly blocked in this way, it had a power to make an order for payment by way of a lump sum of the . .
CitedRegina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
CitedJones v Newtown and Llanidloes Guardians 1920
A wife’s agency of necessity of her husband is suspended whilst she is in desertion. . .
CitedMcGowan v McGowan 1948
Just as a husband’s common law duty to maintain his wife would normally be discharged by providing the home which they shared, the father’s duty to maintain his children would be discharged by providing them with a home. . .
CitedDelaney v Delaney CA 22-May-1990
The court made an order for nominal periodical payments for children whose mother was receiving social security benefits. Nourse LJ said: ‘Whilst this court deprecates any notion that a former husband and extant father may slough off the tight skin . .
CitedAshingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
CitedLilley v Lilley 1960
A wife’s agency of necessity of her husband was not lost if they were obliged to live apart for no fault of hers. . .
CitedBarnes v Barnes CA 28-Jul-1972
. .

Cited by:
CitedSecretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
CitedSmith v Secretary of State for Work and Pensions and Another HL 12-Jul-2006
The House considered whether under the 1992 Regulations a self-employed parent could use for his child support calculation his net earnings as declared to the Revenue, which would allow deduction of capital and other allowances properly claimed . .
CitedRowley and others v Secretary of State for Department of Work and Pensions CA 19-Jun-2007
The claimants sought damages for alleged negligence of the defendant in the administration of the Child Support system.
Held: The defendant in administering the statutory system owed no direct duty of care to those affected: ‘a common law duty . .
CitedRegina v G (Secretary of State for the Home Department intervening) HL 18-Jun-2008
The defendant was fifteen. He was convicted of statutory rape of a 13 year old girl, believing her to be 15. He appealed saying that as an offence of strict liability he had been denied a right to a fair trial, and also that the offence charged was . .
CitedChild Maintenance and Enforcement Commission v Beesley and Another ChD 11-Mar-2010
The agency challenged the inclusion in an individual voluntary arrangement of the father’s arrears of child support. The creditors meeting had approved a full and final settlement. 94% of the debts were arrears of child support. The Commission said . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Child Support

Leading Case

Updated: 11 November 2021; Ref: scu.228601

Child Maintenance and Enforcement Commission v Beesley and Another: ChD 11 Mar 2010

The agency challenged the inclusion in an individual voluntary arrangement of the father’s arrears of child support. The creditors meeting had approved a full and final settlement. 94% of the debts were arrears of child support. The Commission said that such arrears were not subject to the arrangement, and the arrangement was unfair to it.
Held: Child support debts are excluded as a bankruptcy debt, but not for an individual voluntary arrangement, being included within the definition in section 382(4). The statute appeared to include a deliberate choice not to exclude such debts. The Commission might avoid the consequences of it being concluded that such debts were subject to the IVA by attending and voting. It had chosen not to do so.
However, the scheme failed to recognise the particular character of the debt, and the scheme was therefore unfair and was set aside.

Pelling QC J
[2010] EWHC 485 (Ch), [2010] 2 FLR 164, [2010] BPIR 552, [2010] Fam Law 579
Bailii
Child Support Act 1991, Insolvency Act 1986 263(3) 382(4)
England and Wales
Citing:
CitedDepartment of Social Security v Butler CA 1995
The effect of the 1991 Act is that the court has no jurisdiction to grant an injunction to prevent an absent parent from disposing of his assets. A detailed consideration of the 1991 Act shows that it provides a detailed and comprehensive scheme and . .
Citedin Re Bradley-Hole (A Bankrupt) ChD 1995
There was a conflict between the creditors who were party to the IVA and a subsequent trustee in bankruptcy; and the bankruptcy was petitioned by a new creditor who was unaffected by the IVA.
Held: The IVA had created a trust of the bankrupt’s . .
CitedKehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .
AppliedRe A Debtor (No.488 IO of 1996), JP v A Debtor ChD 1999
The debtor had been ordered to pay his wife a sum by way of ancillary relief in matrimonial proceedings. He then proposed an IVA, which was approved at a creditors meeting. W had notice but did not attend. She along with all other creditors was to . .

Lists of cited by and citing cases may be incomplete.

Child Support, Insolvency

Updated: 10 November 2021; Ref: scu.402599

FS v RS and JS: FC 30 Sep 2020

Financial Relief for Adult son – No Jurisdiction

Adult but vulnerable son seeking financial relief against married and cohabiting parents.
Held: Refuse

Sir James Munby
[2020] EWFC 63, [2020] WLR(D) 532
Bailii, WLRD
Matrimonial Causes Act 1973, Children Act 1989, Human Rights Act 1998
England and Wales
Cited by:
Main JudgmentFS v RS and JS FC 11-Nov-2020
Footnote to main judgment. . .

Lists of cited by and citing cases may be incomplete.

Family, Human Rights, Child Support

Updated: 10 November 2021; Ref: scu.654560

Child Maintenance and Enforcement Commission v Gibbons; Same v Karoonian: CA 30 Oct 2012

Non-resident parents in each case appealed against suspended orders of imprisonment for non-payment of child support. They argued that the procedures used were indistinguishable from those held to be human rights non-compliant in Mubarak.
Held: The Commission had not taken all alternative enforcement steps first as required by the Act, and accordingly it was ot open to it to make the application it had made agsinst Mr Gibbons.
Whilst such enforcement fell to be judged to crimnal standards under human rights law, the Act did in fact provide a sufficiently precise statement of the offence to be compliant.
The section allowed a choice between a driving disqualification, and a sentence of imprisonment, and: ‘The right to liberty is such a fundamental human right that deprivation must always be an order of last resort. The order should not be made without good reason. Given that there is this choice of sanction, the liable person is entitled to know why the option of disqualification was rejected and why imprisonment was preferred. Those reasons need not be expressed at length: all that is required is that the defendant should understand why the court thinks that imprisonment is the more appropriate choice.’ No such indication or consideartion had been given in the second case, and that appeal must also succeed.
It was also said that the form of summons indicated a presumption of guilt – it was for the respndent to show cause why he should not be committed, and ‘There would be nothing wrong with the inquiry into means being conducted by the Commission proving that the defendant has – or at some time after the making of the liability order had – the means to pay and, having established the case to answer on that, going on to consider his conduct and whether there is wilful refusal or culpable neglect. The danger is that the two stages are rolled into one – little or no evidence of means but get the defendant into the witness box to explain himself. That is impermissible muddling up . . The ratio of Mubarak is clear enough. I regret that I cannot see why the same reasoning does not compel us to reach the same conclusion here, namely that the procedures in fact adopted are frequently not compliant with Article 6.’

Ward, Richards, Patten LJJ
[2012] EWCA Civ 1379, [2012] WLR(D) 300
Bailii
Child Support Act 1991, Child Support (Collection and Enforcement) Regulations 1992, European Convention on Human Rights 6
England and Wales
Citing:
CitedFarley v Child Support Agency and Another; Farley v Secretary of State for Work and Pensions (No. 2) HL 28-Jun-2006
Magistrates were wrong to think they had a discretion to look at the validity of a liability assessment under child support legislation. The Act gave the payer alternative avenues of appeal, and therefore the Act should be read as it stated and the . .
CitedMubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .
CitedMubarak v Mubarak FD 30-Nov-2000
In ancillary relief proceedings, where a respondent company director conceded that the assets and income of a company could be treated as his own, it could be proper to draw aside the veil of incorporation. Nevertheless the court should be careful . .
CitedRegina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
CitedRegina v Rimmington; Regina v Goldstein HL 21-Jul-2005
Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a . .
CitedRegina v Wolverhampton Magistrates Court ex parte Mould 1992
Kennedy LJ said: ‘the power to commit to prison [for a failure to pay local taxes] is plainly to be used as a weapon to extract payment rather than to punish’ . .
CitedLingens v Austria ECHR 8-Jul-1986
Freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2, . .
CitedSalabiaku v France ECHR 7-Oct-1988
A Zairese national living in Paris, went to the airport to collect, as he said, a parcel of foodstuffs sent from Africa. He could not find this, but was shown a locked trunk, which he was advised to leave alone. He however took possession of it, . .
CitedSheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
CitedKeogh v Regina CACD 7-Mar-2007
The defendant was charged under the 1989 Act. He complained that the effect of the Act was to put an unfair burden on him to establish that he was unaware of the damaging effects of disclosure.
Held: The Act did not comply with the defendant’s . .

Lists of cited by and citing cases may be incomplete.

Child Support, Human Rights, Magistrates

Leading Case

Updated: 02 November 2021; Ref: scu.465555

Brough v Law: CA 20 Oct 2011

The parties had a child when they were married. A maintenance support order was made after they separated. They were briefly reconciled, and the father said that during that period there was no ‘qualifying child’ within the Act, and that therefore the existing order lapsed, and a new one would be required after the separation. He sought repayment of sums paid after the separation under the order.
Held: The appeal failed: ‘Weight must be attached to the presence of the expression ‘qualifying child’ in paragraph 16(1)(b) which requires reference to the definition of ‘qualifying child’ in section 3. That involves a further reference to the definition of ‘absent parent’ in section 3(2). An examination of paragraph 16(1) as a whole, however, drives me to the conclusion that it was not intended that a maintenance assessment would cease to have effect by reason of a short period of the parents living together:
(i) Such a conclusion would render sub-paragraph (a) at least partially and sub-paragraph (c) totally unnecessary and would undermine sub-paragraph (d) which deals expressly with persons living together.
(ii) The other sub-paragraphs in paragraph 16(1) contemplate a specific and permanent event and it is likely that sub-paragraph (b) was also intended to apply on the occurrence of a specific event, loss of status as a child, and not a transient one.
(iii) The presence of section 16(6) assumed the need for an application to the Secretary of State (now the Commission) to achieve a cancellation of the maintenance assessment when the parties are living together, a provision inconsistent with cancellation merely by living together.’

Pil, Rimer, Lewison LJJ
[2011] EWCA Civ 1183
Bailii
Child Support Act 1991 3(2)
England and Wales
Citing:
Appeal fromSL v Child Maintenance and Enforcement Commission UTAA 11-Dec-2009
The mother and father had been married and had a child. They separated, and she claimed income support. The father was assessed to be liable to Child Support, but he was assessed to a nil contribution. He found work and the assessment was increased. . .
CitedSM v Child Maintenance Enforcement Commission (CSM) UTAA 8-Dec-2010
Child support – jurisdiction . .

Lists of cited by and citing cases may be incomplete.

Child Support

Updated: 02 November 2021; Ref: scu.445854

Farley v Child Support Agency and Another; Farley v Secretary of State for Work and Pensions (No. 2): HL 28 Jun 2006

Magistrates were wrong to think they had a discretion to look at the validity of a liability assessment under child support legislation. The Act gave the payer alternative avenues of appeal, and therefore the Act should be read as it stated and the magistrates had no such jurisdiction. ‘section 33(4) precludes the justices from investigating whether a maintenance assessment, or maintenance calculation in the current terminology, is a nullity. ‘
Lord Nicholls said: ‘The need for a strict approach to the interpretation of an ouster provision . . was famously confirmed in the leading case of Anisminic . . This strict approach, however, is not appropriate if an effective means of challenging the validity of a maintenance assessment is provided elsewhere. Then section 33(4) is not an ouster provision. Rather, it is part of a statutory scheme which allocates jurisdiction to determine the validity of an assessment and decide whether the defendant is a ‘liable person’ to a court other than the magistrates’ court.’ and ‘This statute introduced a new child maintenance scheme. The scheme was intended to provide an effective, cheap and speedy means to enforce parental support obligations. Another aim, of considerable importance, was to reduce dependence on social security and the cost to the tax payer.’

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hutton, Lord Walker of Gestingthorpe, Lord Mance
[2006] UKHL 31, Times 30-Jun-2006, [2006] Fam Law 735, [2006] 3 All ER 935, [2006] 2 FCR 713, [2006] 1 WLR 1817
Bailii
Child Support Act 1991 33(4), Child Support, Pensions and Social Security Act 2000 , Child Support Act 1995
England and Wales
Citing:
Appeal fromFarley v Secretary of State for Work and Pensions (No 2) CA 22-Jun-2005
The Court of Apeal had previously considered an appeal from the grant of a liability order made by magistrates. It had become clear that the order had been made without jurisdiction.
Held: The order must be set aside. The court had no . .
CitedFarley v Secretary of State for Work and Pensions and Another CA 25-Jan-2005
The Respondent had sought a liability order against the appellant, the non-resident parent in respect of child support maintenance arrears. The appellant had asked the magistrates to consider whether he was liable to pay child support maintenance, . .
At First InstanceFarley v Secretary of State for Work and Pensions Admn 12-Jul-2004
The defendant and his wife were separated. The Child Support Agency assessed the contributions he was to make, and eventually pursued him in the magistrates court for arrears. The defendant argued that whilst the Act did prevent the magistrates . .
CitedSecretary of State for Social Security v Shotton and Others QBD 30-Jan-1996
Magistrates have no power to question an assessment made by the Child Support Agency when making a deduction order. . .
CitedAnisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
CitedSecretary of State for Social Security and Another v Harmon and Another CA 5-Jun-1998
. .

Cited by:
CitedA, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
CitedChild Maintenance and Enforcement Commission v Gibbons; Same v Karoonian CA 30-Oct-2012
Non-resident parents in each case appealed against suspended orders of imprisonment for non-payment of child support. They argued that the procedures used were indistinguishable from those held to be human rights non-compliant in Mubarak.
Child Support, Magistrates

Leading Case

Updated: 02 November 2021; Ref: scu.242926

REW, Regina (on the Application of) v Secretary of State for Work and Pensions: Admn 13 Jun 2008

The claimant sought permission to bring judicial review of decisions of the Child Support Agency. He said that his payments should have been reduced for a period when he was in receipt of job seeker’s allowance. A liability order had been made against him, but for a later period.
Held: Leave was refused. The admission that the liability order related to a different period meant that the decision to enforce the liability order was not reviewable. Nevertheless the court considered the responsibility of different sections of the same department to take account of decisions about the same person. The Agency said that by the time it became aware of the payment of benefits, the 1991 Act precluded it from making a re-assessment. This was correct.

Andrew Nichol QC J
[2008] EWHC 2120 (Admin)
Bailii
Child Support Act 1991 16 17
England and Wales
Citing:
CitedKerr v Department for Social Development (Northern Ireland) HL 6-May-2004
Wrongful Refusal of Benefits
The claimant was estranged from his family, but claimed re-imbursement of the expenses for his brother’s funeral. The respondent required him to establish that none of his siblings was in a better position than he to pay for the funeral, but he had . .
CitedHinchy v Secretary of State for Work and Pensions HL 3-Mar-2005
The applicant had been dependent upon income support, and had then come to receive Disability Living Allowance (DLA). She therefore received additional income support, but the office did not adjust that benefit down when her DLA stopped. The . .

Lists of cited by and citing cases may be incomplete.

Child Support, Benefits

Leading Case

Updated: 01 November 2021; Ref: scu.276233

Delaney v Delaney: CA 22 May 1990

The court made an order for nominal periodical payments for children whose mother was receiving social security benefits. Nourse LJ said: ‘Whilst this court deprecates any notion that a former husband and extant father may slough off the tight skin of familial responsibility and may slither away and lose himself in the greener grass on the other side, nonetheless this court has proclaimed and will proclaim that it looks to the realities of the real world in which we live, and among the realities of life is that there is a life after divorce. The respondent husband is entitled to order his life in such a way as will hold in reasonable balance the responsibilities to his existing family which he carries into his new life, as well as his proper aspirations for that new future.’

Nourse LJ
[1990] 2 FLR 457, [1990] EWCA Civ 14, [1991] FCR 161
Bailii
England and Wales
Cited by:
CitedSecretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
CitedKehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .

Lists of cited by and citing cases may be incomplete.

Child Support

Leading Case

Updated: 01 November 2021; Ref: scu.194405

CM v STS: SCS 2 Sep 2008

cm_stsSCS2008

The pursuer sought payment of substantial sums, having been disadvantaged by ceasing work to care for the parties’ children. She also asserted that the defender had been advantaged by her taking the care of the children. The parties were not married but had lived together, and a sum could now be claimed on cessation under the 1996 Act. The defender had fallen into arrears with his payments to the Child Support Agency.
Held: The court should exclude consideration of payments which might be recoverable by the Child Support Agency. The 2006 Act contained a danger that courts might make an order without regard to the resources available to a party to meet it.
Whilst each case is to be judged on its own merits, a contribution by one partner or spouse who looks after a house and or children can be balanced by the financial contributions made by the other spouse or partner and vice versa. Lord Matthews said: ‘The fact that the 1985 Act and the 2006 Act approach the problem from different directions does not, I think, affect the matter in principle. Either factors balance out or they do not. The effect of the balancing exercise will of course lead to difference consequences. Under the 1985 Act the principle of equal division may or may not be affected. Under the 2006 Act the payment of a capital sum may or may not be affected.’

Lord Matthews
[2008] ScotCS CSOH – 125, 2008 GWD 31-473, 2008 SLT 871
Bailii
Family Law (Scotland) Act 2006 28(2)(a), Family Law (Scotland) Act 1985
Citing:
CitedAli v Andrew SCS 29-Jan-2003
. .
CitedWelsh v Welsh 1994
. .
CitedAdams v Adams (No 1) 1997
Lord Gill said: ‘The pursuer next relies on s 9(1)(b) (as read with s 9(2) and s 11(2).
She argues that the defender has enjoyed an economic advantage in that he has been able to further his career whereas she has prejudiced hers by bringing . .
CitedLoudon v Loudon SCS 1994
Lord Milligan said: ‘I have considered carefully counsel’s submission on the question of the appropriate allocation of the matrimonial property. I am left in no doubt whatsoever that this should be an allocation in which, in the whole circumstances, . .

Cited by:
CitedGow v Grant SC 24-May-2012
The parties had lived together as an unmarried couple, but separated. Mrs Gow applied under the 2006 Act for provision. Mr Grant’s appeal succeeded at the Inner House, and Mrs Gow now herself appealed.
Held: The appeal succeeded. The Act did . .

Lists of cited by and citing cases may be incomplete.

Scotland, Family, Child Support

Updated: 01 November 2021; Ref: scu.273111

BH v Secretary of State for Work and Pensions and SB (CSM): UTAA 8 Feb 2021

Child support – Other – Whether, when Secretary of State implements a decision of the First – tier Tribunal by following directions given by that Tribunal, the implementing decision is made under section 11 of the Child Support Act 1991, or under section 20 – Whether the Secretary of State subsequently has power to revise such an implementing decision under section 16 of that Act. Child support – Tribunal practice – Whether an abuse of process to seek to challenge earlier tribunal decisions in appeals against subsequent decisions by the Secretary of State in respect of later periods. Tribunal practice – Jurisdiction – Appeal against a decision the Secretary of State had no power to make.
[2021] UKUT 190 (AAC)
Bailii
England and Wales

Updated: 11 September 2021; Ref: scu.667696

Pearce v Pearce: CA 28 Jul 2003

The financial claims on divorce had been settled by a compromise recorded in a court order. The order included periodical payments to the former wife. After she suffered financial losses, she sought an increase, and the former husband sought an order finalising the arrangements.
Held: The judge should have restricted himself to capitalisation of the increased periodical payments order and abstained from the addition of a substantial uplift. He should not have allowed the wife to discharge her mortgage at the husband’s expense, which violates the principle that capital claims once compromised could not be revisited. There is simply no power or discretion to embark on further adjustment of capital to reflect the outcome of unwise or unfortunate investment on one side or prudent or lucky investment on the other.
Thorpe LJ said: ‘Both as a matter of principle and as a matter of good practice, in my opinion the judge had to decide three questions in the following sequence. First he had to decide what variation to make in the order for periodical payments agreed in 1997. An increase was inevitable given inflation and the husband’s overall increased prosperity despite the decline in his income. The judge’s second task was to fix the date from which the increased order was to commence. That would dispose of the past and present account between the parties. Then, and only then, should he have moved to the future, substituting a capital payment calculated in accordance with the Duxbury tables for the income stream that he was terminating.
Of course I do not seek to put the trial judge in a straitjacket. He exercises a broad discretion at the first stage. Equally at the third stage he exercises a discretion, albeit a narrower one, in departing from the mathematics of the Duxbury tables to reflect special factors which individual cases will regularly generate.’
The President, Lord Justice Thorpe, And Lord Justice Mantell
[2003] EWCA Civ 1054, Times 01-Sep-2003, [2003] 3 FLR 1144, [2004] 1 WLR 68
Bailii
Matrimonial Causes Act 1973 31(7B)
England and Wales
Citing:
CitedMinton v Minton HL 1979
Establishing Clean Break on Divorce
The House set out the principles for establishing a ‘clean break’ financial settlement on a divorce. Once a capital claim in a divorce has been given effect in a court order, the court does not have jurisdiction to vary it. Lord Scarman said: ‘Once . .
Citedde Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
CitedS v S FD 1986
Both parties sought a variation of a maintenance order. The former husband sought to be allowed to pay a sufficient capital sum to his former wife to commute the payment in her favour.
Held: Provided the sum could be paid and the result would . .
CitedBrooks v Brooks HL 29-Jun-1995
A director’s pension scheme could be treated as a post-nuptial marriage settlement where the director was the only scheme member. It was thus a matrimonial asset capable of variation by a court in ancillary relief proceedings in a divorce. The court . .
CitedHarris v Harris CA 1-Jul-2001
The first instance court had acceded to the husband’s application for downward variation of the wife’s periodical payments to andpound;9,000 per annum and to the wife’s application substituting a lump sum of andpound;120,000 for the future . .
CitedCornick v Cornick (No 3) FD 2001
The court considered its powers when being asked to vary a lump sum provision at the same time as a variation of maintenance.
Held: ‘section 31(7B) clearly introduces a wide discretionary power to be exercised by applying the words of the . .
CitedWhite v White CA 19-May-2003
The parties to the marriage owned a property which they had extended. The relationship deteriorated, and the mother sought an order under the 1996 Act. The mother left the home, and the father cared for the children. He sought orders under the 1989 . .
CitedCornick v Cornick (No 2) CA 2-Jan-1995
The court considered the boundary of its power in ordering periodical payments: ‘I do not believe that Hale J erred in her approach in principle to this case, and I reject the submission which Mr Mostyn has made that there was a delimiting factor . .

Cited by:
CitedMcFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
CitedNorth v North CA 25-Jul-2007
The husband appealed a consent order for payment of pounds 202,000 to commute a varied nominal maintenance order. The original order had been made many years before. In the meantime, the former husband had grown wealthy, and she had suffered . .
CitedDixon v Marchant CA 24-Jan-2008
The parties had only recently settled their ancillary relief proceedings by consent when the former wife remarried. The former husband sought the setting aside of the order. The wife had denied the relationship. The judge had found the conditions in . .
CitedVaughan v Vaughan CA 31-Mar-2010
H had been paying maintenance to W for many years after the divorce. W now appealed against an order revoking the arrangement without providing a capital sum to replace it. H’s health had declined, and also his earnings.
Held: W’s appeal . .
CitedNG v SG FD 9-Dec-2011
The court considered what to do when it was said that a party to ancillary relief proceedings on divorce had failed to make proper disclosure of his assets. H appealed against an award of a capital sum in such proceedimngs.
Held:
Held: . .
CitedMills v Mills SC 18-Jul-2018
The Court was asked: ‘In circumstances in which at the time of a divorce a spouse, say a wife, is awarded capital which enables her to purchase a home but later she exhausts the capital by entry into a series of unwise transactions and so develops a . .

Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2021; Ref: scu.184907

Department of Social Security v Butler: CA 11 Aug 1995

The Secretary of State was not entitled to a Mareva injunction preventing the disposal of assets against a parent pending the issue of a child support assessment. The court refused a freezing order:- (Morritt LJ) ‘The Child Support Act introduced a wholly new framework for the assessment and collection of the sums required for the maintenance of children by their parents. There is no provision for the enforcement of any maintenance assessment except by the Secretary of State and his methods of enforcement are limited in the way I have mentioned. In my judgment the detailed provisions contained in the Act of 1991 which I have described show clearly that Parliament intended that all questions concerning the enforcement of maintenance assessments should be determined exclusively by the Secretary of State, the Magistrates’ Court or the County Court. The civil jurisdiction of the High Court is, in my view, necessarily excluded.’
Evans LJ: ‘The following observations may be made on these statutory provisions. (1) The Act of 1991 together with regulations made under it provide a detailed and apparently comprehensive code for the collection of payments due under maintenance assessments and the enforcement of liability orders made on the application of the Secretary of State. (2) The only method provided for enforced collection before a liability order is made is a deduction from earnings order made by the Secretary of State himself under section 31. (3) Although section 1(3) provides for a duty which arises when the maintenance assessment is made, this duty is not expressed as a civil debt. Mr Crampin accepts that the duty could not be directly enforced by action in any civil court, or by any means other than as provided in the Act. (4) There is no provision for precautionary or Mareva-style relief.’
Morritt LJ: ‘As I have indicated the Secretary of State claims in respect of the statutory right correlative with the obligation expressed in section 1(3) of the Act of 1991. But that obligation and right is not a civil debt in any ordinary sense. First, the obligation may only be enforced by the Secretary of State and not by any other person who may be stated to be the payee in the maintenance assessment. Secondly, the Secretary of State’s powers of enforcement do not enable him to sue for the arrears in the ordinary way. In the first instance his choice lies between a deduction of earnings order directed to the employer or an application to justices for a liability order. In my judgment, neither of those rights is such as would entitle this court, consistently with the decision in The Veracruz I [1992] 1 Lloyd’s Rep. 353 to grant Mareva relief.
The Child Support Act 1991 introduced a wholly new framework for the assessment and collection of the sums required for the maintenance of children by their parents. There is no provision for the enforcement of any maintenance assessment except by the Secretary of State and his methods of enforcement are limited in the way I have mentioned. It seems to me that it would be inconsistent with the Act as a whole in general and with section 33 in particular if the Secretary of State were to be at liberty to apply for Mareva injunctions in the High Court. If the conditions in section 33(1) are satisfied then Parliament has clearly laid down that the Secretary of State should proceed first in the magistrates’ court and then in the county court. If those conditions are not satisfied then Parliament has clearly ordained that the Secretary of State should not be entitled to enforce the maintenance assessment by court process at all.
No doubt clear words or a necessary implication are required to exclude the jurisdiction of the court. The suggested exclusion in this case is of the High Court’s ordinary civil jurisdiction which includes the power to grant injunctions. In my judgment, the detailed provisions contained in the Act of 1991 which I have described show clearly that Parliament intended that all questions concerning the enforcement of maintenance assessments should be determined exclusively by the Secretary of State, the magistrates’ court or the county court. The civil jurisdiction of the High Court is, in my view, necessarily excluded. I agree with Evans LJ that the judge was right and that this application should be dismissed.’
Simon Brown LJ: ‘For my part I believe that the argument fails at both stages albeit for what in the last analysis may be thought essentially the selfsame reason. Put shortly my conclusions are, first, that Mareva relief is only obtainable where there is already available to the applicant a cause of action properly so called, viz. a right to litigate or arbitrate an existing monetary claim, and, secondly, that the Act of 1991 affords to the Secretary of State no such cause of action, and indeed no rights at all save only those expressly conferred upon him by section 4(2) to arrange in certain circumstances either for the ‘collection’ of maintenance payable under an assessment or for the ‘enforcement’ of the obligation to pay such maintenance, in each instance as thereafter expressly provided for in sections 29 et seq. of the Act of 1991.’
Morritt LJ, Evans LJ, Simon Brown LJ
Ind Summary 14-Aug-1995, Times 11-Aug-1995, [1995] 1 WLR 1528
Supreme Court Act 1981 37, Child Support Act 1991
England and Wales
Cited by:
CitedSecretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
CitedKehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .

These lists may be incomplete.
Updated: 04 June 2021; Ref: scu.79908

Department of Social Security v Butler: CA 1995

The effect of the 1991 Act is that the court has no jurisdiction to grant an injunction to prevent an absent parent from disposing of his assets. A detailed consideration of the 1991 Act shows that it provides a detailed and comprehensive scheme and that the jurisdiction to grant an injunction has been excluded by necessary implication.
The duty to pay imposed by CSA section 1(3) does not create a civil debt because it can only be enforced by the Secretary of State and then only in the restricted ways identified in the CSA.
Simon Brown LJ said: ‘The Act of 1991 provides the most detailed and complete code for assessing and enforcing the financial responsibility of absent parents for their children; it amounts to a comprehensive legislative scheme. Had Parliament thought it necessary or desirable to embellish it by providing for Mareva relief, it could and would have done so; that, moreover, would plainly have been achieved by conferring such additional jurisdiction upon the county court.’
Evans LJ, Morritt LJ, Simon Brown LJ
[1995] 1 WLR 1528
Child Support Act 1991 1(3)
England and Wales
Cited by:
CitedChild Maintenance and Enforcement Commission v Beesley and Another ChD 11-Mar-2010
The agency challenged the inclusion in an individual voluntary arrangement of the father’s arrears of child support. The creditors meeting had approved a full and final settlement. 94% of the debts were arrears of child support. The Commission said . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.402614

P (Child), Re (Child: Financial Provision): CA 24 Jun 2003

The father was a very wealthy Iranian, and the mother also had capital. She sought an assessment under the 1991 Act of the amount he should be asked to pay. The assessment came to andpound;152 per week, but he was paying andpound;1,200 a month voluntarily. An order under the 1989 Act could not be made without there first being in place an agreement between the parents. The judge had made an order on the mother’s application for capital provision and for child maintenance which was to reduce on the child’s seventh birthday on the basis that a nanny would no longer be required.
Thorpe LJ, May LJ, Bodey J
[2003] EWCA Civ 837, [2003] 2 FLR 865
Bailii
Child Support Act 1991, Children Act 1989 1
England and Wales
Cited by:
CitedRadmacher v Granatino CA 2-Jul-2009
Husband and wife, neither English, had married in England. Beforehand they had signed a prenuptial agreement in Germany agreeing that neither should claim against the other on divorce. The wife appealed against an order to pay a lump sum to the . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.184077

Secretary of State for Work and Pensions v Roach: CA 20 Dec 2006

The court considered the reduction of state benefits payable to a mother asking the Child Support Agencey not to pursue a claim against the father where there has been a history of domestic violence. The mother said she was frightened of retribution from the father. The tribunal had found her fears exaggerated, but the Commissioner had allowed her appeal.
Held: The Commissioners reasons for departing from the tribunal’s findings were insupportable. The test for ‘undue distress’ could not be subjective.
[2006] EWCA Civ 1746, Times 05-Jan-2007
Bailii
Child Support Act 1991 46
England and Wales
Citing:
CitedTote Bookmakers Ltd v Development and Property Holding Co. Ltd. 1985
Peter Gibson J defined the phrase undue hardship as ‘hardship . . not warranted by the circumstances’. . .

These lists may be incomplete.
Updated: 05 May 2021; Ref: scu.247490

Re B (Children): CA 5 Jul 2012

The father sought leave to appeal against a decision that the mother and their daughter were not habitually resident here, saying that she was not entitled to apply for child maintenance.
Thorpe, Rimer, Patten LJJ
[2012] EWCA Civ 1082
Bailii
England and Wales

Updated: 19 April 2021; Ref: scu.463703

Davies v Welch: Admn 4 Nov 2010

The applicant sought the committal of the respondent for contempt. The defendant, a solicitor had acted for the claimant’s wife in ancillary relief proceedings. He complained that documents sent to her under implied undertakings of confidentiality within those proceedings had been sent to the Child Support Agency. The defendant admitted the act, saying that it was unwitting and had apologised.
Held: The information could have been (but was not) lawfully demanded by the Agency, and subsequent changes in legislation would mean that the defendant’s behaviour would not now be a contempt. Had she applied for leave, the court’s almost inevitable decision would have been for disclosure, and ‘this is plainly not a case calling for the committal order sought by Mr Davies. Indeed, in my judgment, it calls for no order at all, subject to consideration of the issue of costs. Mrs Welch acted in contempt of court through an oversight; it was an oversight which should not have occurred, given her professional knowledge and responsibilities, but the breach was not a serious one. This was a committed family solicitor who acted in good faith and for purposes which she considered to be entirely proper.’
Richards LJ, Cranston J
[2010] EWHC 3034 (Admin), [2011] Fam Law 136, [2011] 1 FLR 1241
Bailii
Child Support Act 1991 49B, Family Proceedings Rules 10.21A
England and Wales
Citing:
CitedGelber v Griffin FD 22-Nov-2006
Complaint was made that a party had disclosed confidential material received through disclosure to a third party.
Held: There was an implied duty of confidence arising in the disclosure process. . .
CitedAllan v Clibbery (1) CA 30-Jan-2002
Save in cases involving children and ancillary and other situations requiring it, cases in the family division were not inherently private. The appellant failed to obtain an order that details of an action under the section should not be disclosed . .

These lists may be incomplete.
Updated: 15 April 2021; Ref: scu.427010

TR v Secretary of State for Work and Pensions and PR (CSM): UTAA 26 May 2020

Child Support – extent of jurisdiction under Regulation 8 of The Child Support (Ending Liability in Existing Cases and Transition to New Calculation Rules) Regulations 2014 – closure of the 2003 scheme applications for child maintenance on 16 April 2015 – continued power for the Secretary of State to make the decisions that were made on 5 October 2016 refusing supersession in respect of decisions made in 2011 – appeal allowed – case remitted to First-tier Tribunal.
[2020] UKUT 339 (AAC)
Bailii
England and Wales

Updated: 28 March 2021; Ref: scu.659505

K, Regina (on the application of) v Secretary of State for Work and Pensions: Admn 16 May 2003

Wall J
[2003] EWHC 1021 (Admin)
Bailii
Child Support Act 1991
England and Wales
Citing:
CitedKaplan v United Kingdom ECHR 14-Dec-1978
(Admissibility) The Secretary of State had, after preliminary procedures, served notices on an insurance company disallowing it from writing any new business, because its managing director the applicant, had been found not to be a fit and proper . .

These lists may be incomplete.
Updated: 22 March 2021; Ref: scu.450992

Green, Regina (On the Application of) v Secretary of State for Work and Pensions: Admn 19 Mar 2008

The separated parents of the child had agreed that the school fees paid by the father would be set off against his liability for child support. He now sought leave to bring judicial review of a decision to disregard them for that purpose.
Held: Whilst the climant had not in some espects exhausted the applicable appeals procedure, but permission was granted on the limited grounds that the respondent had failed to notify him of the mother’s objection to the setting off of the fees.
Cranston J
[2009] EWHC 2000 (Admin)
Bailii
England and Wales

Updated: 08 March 2021; Ref: scu.372656

SM v Child Maintenance Enforcement Commission (CSM): UTAA 8 Dec 2010

Child support – jurisdiction
Judge David Williams
[2010] UKUT 435 (AAC)
Bailii
Citing:
ApprovedSL v Child Maintenance and Enforcement Commission UTAA 11-Dec-2009
The mother and father had been married and had a child. They separated, and she claimed income support. The father was assessed to be liable to Child Support, but he was assessed to a nil contribution. He found work and the assessment was increased. . .

Cited by:
CitedBrough v Law CA 20-Oct-2011
brough_lawCA2011
The parties had a child when they were married. A maintenance support order was made after they separated. They were briefly reconciled, and the father said that during that period there was no ‘qualifying child’ within the Act, and that therefore . .

These lists may be incomplete.
Updated: 07 March 2021; Ref: scu.433615

Secretary of State for Work and Pensions v Kehoe: CA 5 Mar 2004

The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of access to the courts under section 8 did not engage her civil rights. The Act transferred to the Agency responsibility for making assessments for child maintenance. The right for the claimant to apply for judicial review would be an insufficient remedy. ‘To take away the jurisdiction of the court to determine what is essentially a class of civil action and entrust it to organs dependent on the Government is indissociable from a danger of arbitrary power, has serious consequences for the fundamental principles of law and so cannot be overlooked by the court.’ but ‘Her right to a fair trial is certainly restricted but not so restricted that the very essence of her right of access to the court is impaired.’ The judge had failed to consider whether the steps taken were proportional. Properly implemented, the Act would be a fair balance of rights.
The Hon Mr Justice Latham Lord Justice Ward Lord Justice Keene
[2004] EWCA Civ 225, Times 10-Mar-2004, Gazette 01-Apr-2004, [2004] QB 1378, [2004] UKHRR 443, [2004] 1 FCR 511, [2004] 2 WLR 1481, [2004] 1 FLR 1132
Bailii
Human Rights Act 1998 6.1, Child Support Act 1991 8
England and Wales
Citing:
CitedRegina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
CitedMatthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
CitedRuna Begum v London Borough of Tower Hamlets (First Secretary of State intervening) HL 13-Feb-2003
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an . .
CitedHuxley v Child Support Agency CA 2000
The court gave an extensive analysis of the workings of the Child Support Act: (Lady Justice Hale) ‘It is important to bear in mind that the child support scheme is not simply a method for the State to recoup part of its benefit expenditure from the . .
Appeal fromRegina (Kehoe) v Secretary of State for Work and Pensions QBD 16-May-2003
The applicant had been obliged under statute to have her claim for maintenance for her child pursued thorugh the Child Support Agency. She said that through the delay and otherwise, her claim had been lost.
Held: The statute debarred the . .
CitedManby v Scott 1663
Since a husband owed it to the community to sustain himself, he was under the inevitable compulsion to sustain his other self, his wife, who was ‘bone of his bone, flesh of his flesh, and no man did ever hate his own flesh so far as not to preserve . .
CitedBazeley v Forder 1868
A wife’s agency of necessity for her husband extended to cover necessities for the children. . .
CitedGolder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
CitedKonig v Federal Republic of Germany ECHR 28-Jun-1978
The reasonableness of the duration of proceedings must be assessed according to the circumstances of each case, including its complexity, the applicant’s conduct and the manner in which the administrative and judicial authorities dealt with the . .
CitedJames and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
CitedZ And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
CitedIn Re C (A Minor: Contribution Notice) FD 13-May-1993
The father appealed against an order for contribution under the 1989 Act. It was argued that the contributing parent must simply cut his cloth acording to his means, and organise his life to follow first his duty to maintain his child.
Held: . .
CitedAirey v Ireland ECHR 9-Oct-1979
Family law proceedings such as judicial separation do give rise to civil rights. In complex cases article 6 might require some provision for legal assistance, the precise form being a matter for the member state. The Court reiterated the importance . .
CitedAshingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
CitedFayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedDepartment of Social Security v Butler CA 11-Aug-1995
The Secretary of State was not entitled to a Mareva injunction preventing the disposal of assets against a parent pending the issue of a child support assessment. The court refused a freezing order:- (Morritt LJ) ‘The Child Support Act introduced a . .
CitedH v Belgium ECHR 30-Nov-1987
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings
It is for . .
CitedBenthem v The Netherlands ECHR 23-Oct-1985
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Non-pecuniary damage – finding of violation sufficient . .
CitedDenson, Regina (on the Application of) v Child Support Agency Admn 14-Feb-2002
The claimant challenged the validity of the 1991 Act under Human Rights law, particularly Article 1 of Protocol 1 and Article 8.
Held: ‘It is quite clear in my judgment that – putting the matter generally – both the statutory scheme and the . .
CitedPhillips v Peace 1996
The assessment of an absent parent’s liability under the Act is a mechanical one, achieved by the application of a formula. That assessment of liability does not reflect a number of potentially relevant factors, such as the availability to the . .
CitedDelaney v Delaney CA 22-May-1990
The court made an order for nominal periodical payments for children whose mother was receiving social security benefits. Nourse LJ said: ‘Whilst this court deprecates any notion that a former husband and extant father may slough off the tight skin . .

Cited by:
Appeal fromKehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .

These lists may be incomplete.
Updated: 07 March 2021; Ref: scu.194122

Child Maintenance Enforcement Commission v Forrest: Admn 14 May 2010

[2010] EWHC 1264 (Admin)
Bailii
England and Wales
Citing:
CitedSaunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .

These lists may be incomplete.
Updated: 25 February 2021; Ref: scu.416187

Brookes v Secretary of State for Work and Pensions and Another: CA 29 Apr 2010

The claimant father challenged enforcement by the Child Support Agency and the Commission of arrears they claimed of andpound;7,000 child support. He said they had failed to account for sums paid in cash by him direct to the mother. The sole claim now was as to the failure by the respondents when sending bailiffs to his house to consider the effect on the children living at the house.
Ward, Hughes, Patten LJJ
[2010] EWCA Civ 420, [2010] Fam Law 910, [2010] 2 FLR 1038, [2010] 1 WLR 2448, [2010] 3 FCR 262
Bailii
Child Support Act 1991 82
England and Wales

Updated: 24 February 2021; Ref: scu.414590

SL v Child Maintenance and Enforcement Commission: UTAA 11 Dec 2009

The mother and father had been married and had a child. They separated, and she claimed income support. The father was assessed to be liable to Child Support, but he was assessed to a nil contribution. He found work and the assessment was increased. When there was a brief reconciliation, he applied for cancellation of the liability order, saying that the fact that there had been a reconciliation meant that there was no ‘qualifying child’ and that the assessment had lapsed.
Held: M’s appeal succeeded against a decision of an Appeal Tribunal deciding that the Secretary of State had no power to continue a maintenance assessment affecting Mr Michael Brough as an absent parent, beyond 15 September 1999.
Levenson J concluded: ‘My starting point is the assumption that paragraph 16(1)(d) of Schedule 1 to the 1991 Act does in fact have a meaning and an application. I also adopt the view expressed by the Commissioner in paragraph 15 of CCS/4124/1997. The basis of the Commissioner’s reservations was the concern expressed in his paragraph 16 at the difficulties if the assessment continues in existence while the parents are living together. As I have pointed out above, the Commissioner in R(CS) 8/99 read into this concern a significance that went beyond the problems of the operation of the assessment during the reconciliation period, and went to the permanent cessation of the assessment.
It seems to me that the correct analysis is that paragraph 16(1)(b) is indeed about there no longer being a qualifying ‘child’, rather that being about the particular child no longer ‘qualifying’. This is one of the possible approaches suggested by Mr Scoon in CCS/4124/1997 and in my opinion it is the correct one. In the present case the child was still of the appropriate age and still with the parties during the period of reconciliation and therefore paragraph 16(1)(b) does not come into play.
However, it was the case that during the period of reconciliation the father was no longer an absent parent as defined in section 3(2) of the Act. Therefore, during the period of reconciliation there could be no duty on him under section 1(3) to make periodical payments pursuant to the maintenance assessment. If the reconciliation had lasted for at least six months, paragraph 16(1)(d) would have come into play. As the reconciliation does not last this long, and the child stayed with the mother, the father resumed the status of being an absent parent and the duty to make payments resumed (even though on the facts of the present case the amount of liability was nil until the 2003 decision).’
Levenson J
[2009] UKUT 270 (AAC), [2011] 1 FLR 322, [2010] Fam Law 1056
Bailii
Child Support Act 1991
Cited by:
Appeal fromBrough v Law CA 20-Oct-2011
brough_lawCA2011
The parties had a child when they were married. A maintenance support order was made after they separated. They were briefly reconciled, and the father said that during that period there was no ‘qualifying child’ within the Act, and that therefore . .
ApprovedSM v Child Maintenance Enforcement Commission (CSM) UTAA 8-Dec-2010
Child support – jurisdiction . .

These lists may be incomplete.
Updated: 24 February 2021; Ref: scu.410694