Debra Wilson (née Mo), Partner
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Kehoe represented a valiant attempt to influence the workings of the Child Support Agency, says Debra Wilson (née Mo), but was this worthy case doomed to failure and what means of redress remain?
There was disappointment and indignation among family lawyers charting the progress of Mary Kehoe's case: R (on the application of Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48, [2005] All ER (D) 171 (Jul). "A slap in the face for divorced mothers," commented Stephen Lawson in The Times (16 March 2004); "elective dictatorship" said David Burrows (Family Law, May 2005, Vol 35, p 393).
From its inception in the Administrative Court in May 2003, through the Court of Appeal and the recent House of Lords decision in July 2005, the Kehoe case represented a valiant attempt to influence the workings of the Child Support Agency.
However, public law practitioners may be feeling more measured in their condemnation since what happened in Mary Kehoe's case merely demonstrates the constraints of judicial review and the judicial approach to human rights.
The Child Support Agency
The Child Support Agency came into being in 1993, created under the Child Support Act 1991 (CSA 1991), and exists to:
- trace the non-resident parent (NRP) where necessary;
- assess how much the NRP should pay for child support maintenance; and
- provide a collection and enforcement service for this money, if required by the parent with care (PWC) of the child
CSA 1991 was conceived by the last Conservative government. The climate of concern over 'benefit dependency' among lone parents encouraged the introduction of some means of reducing benefit expenditure - unfortunately through what has proved to be an administratively incompetent government agency.
When a PWC claims income support or job seeker's allowance, s/he is forced to claim child support from the other parent or suffer a reduction in state benefit. Correspondingly, PWC contributions and state benefit penalties should then reduce the burden upon tax payers. Inevitably, a policy which is directed towards enforcing parental responsibility, rather than being focused upon children's rights, has not contributed to improving the living standards of children. Anecdotal tales emerge of hardship within families where the NRP was not paying, with the CSA grinding to a halt under the weight of cases and complex administration.
The root and branch reform of the system promised by David Blunkett as Works and Pension Secretary in 1996, materialised to some degree in the reforms brought in under the Child Support Pensions and Social Security Act 2000 (CSPSSA 2000). CSPSSA 2000 made substantial amendments, which have improved the management of the assessment process so as to relieve the administrative burden, but it did not repeal CSA 1991 or CSA 1995. The agency is still therefore spending more time on assessments, as opposed to enforcement of payments due. There is still a problem with the scheme in terms of actually getting money to children, even though there is now marginally more certainty in terms of from whom, and how much, is to be collected.
Mary Kehoe's case
Mary Kehoe was seeking a remedy against the Child Support Agency, which had failed under s 4 of CSA 1991 to collect and/or enforce a sum of about £17,000 against the father of her four children. Mrs Kehoe asserted that she had a civil right within the meaning of Art 6(1) of the European Convention on Human Rights.
Article 6(1) of the Convention provides that in the determination of civil rights and obligations, everyone is entitled to a fair hearing by an independent and impartial tribunal established by law.
Mrs Kehoe applied for judicial review contending, inter alia, that the provisions of CSA 1991 were incompatible with the Convention as they denied her as a parent, or on behalf of the children, the chance to intervene in the enforcement of maintenance assessments. In particular, she argued that the effect of the scheme was incompatible with Art 6(1) of the Convention because she was restricted from having her civil rights determined by the court. She sought a declaration of incompatibility under s 4(2) of HRA 1988.
The case was important in two respects:
- In the first instance, the Administrative Court decided that Art 6 was engaged, but that CSA 1991 was compliant with the Convention because it was supplemented by the court's power under s 8 of HRA 1998 to award compensation. The Secretary of State appealed against the court's decision on Art 6 - there could have been major implications as damages could have become payable in a number of similar cases.
- If Art 6 was held to have been engaged, it would have opened up a different kind of judicial scrutiny in similar cases.
In relation to points of domestic law, the traditional ground of Wednesbury unreasonableness is usually addressed on judicial review, followed by proportionality arguments on human rights points (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). The distinction was expounded by Lord Steyn in R v Secretary of State for the Home Department ex parte Daly [2001] UKHL 26, [2001] 3 All ER 433: proportionality required the court to assess the balance struck by the decision-maker, not merely whether it is within the range of rational or reasonable decisions. The proportionality test may therefore go beyond the traditional grounds of judicial review, as it is expected to focus to a greater degree on the relative weight attached to the respective interests under consideration.
In Kehoe, the Secretary of State was able to argue successfully that CSA 1991 was compliant with HRA 1998. On appeal, it was held that CSA 1991 could not be made compliant by the availability of damages for incompatibility. It was held to have been compliant because CSA 1991 was in pursuit of a legitimate aim.
Moreover, the House of Lords held that Art 6 was not engaged. It was held that Mrs Kehoe had no standing to assert a civil right, under what is a statutory scheme, within the meaning of Art 6. The right to enforce a claim was vested in the Child Support Agency, so there was no such perceived civil right which would have enabled the court to exercise the more intense standard of review associated with human rights issues.
Doomed to failure?
On reflection it may be all too easy to say that Mrs Kehoe's case was doomed to failure from the outset. Mrs Kehoe arguably had no more than a right to participate in the process by an application to the Child Support Agency. CSA 1991 had deliberately avoided conferring a right on the PWC to enforce a child maintenance assessment against the NRP. Enforcement was exclusively at the discretion of the Secretary of State. The House of Lords made it clear that Art 6 was not engaged, as it was concerned with safeguarding rights, and not according them.
The difficulty in Kehoe is that Art 6(1) is not a free-standing right. It must attach to other Convention rights. Section 6(1) only applies when a claimant is determining a civil right. Even though it is recognised that the Convention is a living instrument and new civil rights are constantly emerging, it has not been uncommon for the domestic courts to be reticent about finding rights that are not already established by the Convention.
Given that HRA 1998 requires the court to exercise more probative judgments on public interest issues, the Secretary of State in Kehoe nonetheless argued that if Art 6 was engaged, CSA 1991 was compliant with HRA 1988 because the PWC had access to the Administrative Court and other means to provide an appropriate remedy.
In Mrs Kehoe's case, the court recognised that judicial review would not afford her the remedy that she required. Section 4(2) of CSA 1991 makes it clear that enforcement is at the discretion of the Secretary of State. One of the most contentious questions raised by the Convention, however, has been about the adequacy of judicial review for the purposes of Art 6, where decisions have been taken by an administrator or tribunal which does not itself comply with Art 6.
There have been cases (see Tower Hamlets LBC v Begum [2005] EWCA Civ 116, [2005] All ER (D) 167 (Feb)) which have raised the argument that judicial review does not suffice to comply with the requirement because of its limited factual jurisdiction. The European Court of Human Rights held that there must be access to a tribunal with "full jurisdiction" (Albert and Le Compte v Belgium (1983) 5 EHRR 533). Such cases (see Begum) do not, however, extend the court's limited factual jurisdiction under judicial review. Any scrutiny as to the adequacy of judicial review is still dependent in part on the statutory scheme in question.
The House of Lords in Kehoe confirmed that judicial review was the only means by which claimants could influence the statutory enforcement process. The only right being to look to the child support agency for the proper discharge of its public law obligations under statute. Section 4(2) of CSA 1991 provides a discretion to the Secretary of State to arrange for the collection and enforcement of maintenance, but that discretion is still subject to challenge on the grounds of legality, procedural propriety and rationality.
The courts' role
CSA 1991 was passed in a short space of time. The Bill was published on 14 February 1991, two months after the closing date for responses to the white paper, and gained Royal Assent on 25 July 1991. Where parliament has enacted legislation in a rush, the kind of problems that have hampered the Child Support Agency are inevitable.
It follows that the rationale that governs some decisions that affect the proper operation of the child support scheme should find their way to judicial scrutiny for review. There is clearly still a right which is sustainable under the Administrative Court's supervisory jurisdictions. Judicial review has limitations as a remedy, but it is known to be influential in changing practice, if not policy in the longer term, where the decision maker is faced with a number of similar challenges.
Undoubtedly, the limited grounds for judicial review do provide a wide discretion to public authorities, as the court would not on an "ordinary" judicial review (ie without human rights points) overrule a decision on merits. The merits of an administrative decision would only be overruled if a decision "is so unreasonable that no reasonable authority could ever come to it" (the Wednesbury test).
Frequently, it is the case that the court has a role where:
- a matter in issue is a clear cut dispute over a legal definition;
- an issue involves a blanket policy or practice; or
- there is an urgent need for a remedy and it can be shown that a complaints process would not adequately resolve the dispute.
The writer does not seek to expose a solution to the failings of the child support system, as this is a matter that is perhaps best fought on a political agenda. From a legal perspective, the hurdle in most cases will be the fact that the Administrative Court will not entertain an application for judicial review where an applicant has "an equally convenient, expeditious and effective remedy". This means that in the absence of cogent reasons, an applicant must first utilise any complaints process. Circumventing that hurdle, along with being able to argue that discretion has not been exercised judiciously, is the key to bringing more cases under judicial review.
For further information email Debra Wilson or call 020 7940 4000.
