The House of Lords has ruled that a resident parent has no right to enforce a claim for child maintenance against an absent parent if the Child Support Agency fails to ensure payment. Kim Beatson, Chair of the family lawyers association Resolution, tells Grania Langdon-Down that the Lords' judgment effectively reinforces the view that the Child Support Agency is the "nationalisation of maintenance"...
Four of the panel of five law lords upheld last year's Court of Appeal decision in Kehoe v Secretary of State for Work and Pensions that child support is not a civil right. The Appeal Court had reversed a ruling by Mr Justice Wall in the High Court that resident parents could sue the Child Support Agency if it failed to pursue the non-resident parent for unpaid maintenance.
The case involved Mary Kehoe, mother of four children, who was owed £17,000 by her ex-husband. Mrs Kehoe filed a petition for divorce in December 1993 and invoked the CSA to obtain financial support for the children. Over the next ten years, Mr Kehoe paid significant sums in response to demands from the CSA but the process proved difficult and substantial arrears built up from time to time.
Mrs Kehoe argued that s8 of the Child Support Act 1991 forced her to use the CSA as a collecting agency and prohibited her from making her own direct application to the civil courts. This, in effect, breached Article 6 of the Human Rights Act 1998 which says that everyone is entitled to have their civil rights and obligations determined by an independent and impartial tribunal. The Department of Work and Pensions countered that the 1991 Act provides the legal statute within which all relevant rights can be found so Mrs Kehoe has no civil right personally to enforce a maintenance award.
Kim Beatson, partner with Anthony Gold's family department, says: "The majority view was the CSA was effectively the nationalisation of maintenance and that it was such a radically different form of machinery that Parliament clearly intended it should be responsible not only for assessment and collection but also for enforcement. The Human Rights Act is satisfied by the fact that there is a right to child maintenance and ther is access to the CSA and therefore it is not a breach of a person's human rights that it is the CSA that is responsible for maintenance rather than the courts. The Lords' view was that it was now back to the Government and if it wants to remove enforcement from the CSA, then it will have to legislate for that."
The only dissenting judgment was from Baroness Hale, who said the case was in reality about children's rather than adults' rights. Beatson says: "We obviously prefer her dissenting view. Baroness Hale argued that children have the right to be maintained and that right is not exclusively within the 1991 Act because all the previous law was still intact and children have, through their parents, recourse to the previous law in certain circumstances. There was nothing in the 1991 Act that indicated that children's rights should be limited to the CSA machinery."
"However, enforcement is just one part of the shambles that the organisation represents. It is not dealing adequately with assessment, collection or enforcement. We want to see the whole collection mechanism fall within the Inland Revenue and for maintenance to be collected in just the same way that national insurance is collected. Payments should also be assessed simply by reference to how the Revenue assesses tax payments. On top of that, we would like to see the introduction of a child maintenance arbitrator and a separate maintenance enforcement unit. And, more than that, we want parents who are dealing with their property, pension and capital claims within the court system to be able to deal with child maintenance in the same system."
"If David Blunkett, as Secretary of State for Work and Pensions, is sufficiently persuaded that the CSA needs a radical overhaul - and he should be after its annual report disclosed that 325,000 cases were inaccurately handled last year - he will have to review the whole assessment and collection regime. However, we are still waiting for a meeting with him."
(21/07/05)
Legislative annotations in other services:-
Human Rights Act 1998 a6; Child Support Act 1991 s8
Case annotations in other services:-
Kehoe v Secretary of State for Work and Pensions [2005] UKHL 48, [2005] All ER (D) 171 (Jul)
For further information contact a member of the Family & Divorce Law team or call 020 7940 4000.
