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Judgments - Secretary of State for Work and Pensions (Respondent) ex parte Kehoe (FC) (Appellant)




Regina v. Secretary of State for Work and Pensions (Respondent)

ex parte Kehoe (FC) (Appellant)

[2005] UKHL 48


My Lords,

    1.  The appellant (Mrs Kehoe) married Mr Kehoe in 1983. They had four children. The marriage broke down in May 1993, a petition for divorce was filed by Mrs Kehoe in December 1993 and Mr Kehoe left the family home at the beginning of 1994. The children remained with Mrs Kehoe, who invoked the services of the Child Support Agency ("the CSA") to obtain financial support for the upbringing of the children from Mr Kehoe. Over the next ten years significant sums of money for the support of the children were paid by Mr Kehoe in response to demands by the CSA, but the process of obtaining payment was protracted and difficult and substantial arrears built up from time to time. Mrs Kehoe strongly feels, perhaps rightly, that direct action by her against her former husband would have yielded more satisfactory results. She contends that, properly understood, the Child Support Act 1991 gives her a right to recover financial support for the children from Mr Kehoe and that the provisions of the Act purporting to deny her a power of direct enforcement against him are inconsistent with the right of access to a court guaranteed by article 6 of the European Convention on Human Rights. At issue in this appeal is the correctness of that contention.

    2.  The detailed facts of this case and the relevant statutory provisions have been clearly and comprehensively summarised by Wall J sitting in the Administrative Court at first instance ([2003] EWHC 1021 (Admin), [2003] 2 FLR 578), by the Court of Appeal (Ward, Latham and Keene LJJ) [2004] EWCA Civ 225, [2004] QB 1378) and by my noble and learned friend Lord Hope of Craighead in his opinion. I gratefully adopt and need not repeat their accounts.

    3.  It is necessary first to examine whether Mrs Kehoe has a right to recover financial support for the maintenance of the children (which I shall call "child maintenance") from Mr Kehoe under the domestic law of England and Wales: Matthews v Ministry of Defence [2003] UKHL 4, [2003] 1 AC 1163, para 3. Under the law as it stood before 1991 it was clear that she had such a right under the Matrimonial Causes Act 1973, the Domestic Proceedings and Magistrates' Courts Act 1978, the Matrimonial and Family Proceedings Act 1984 and the Children Act 1989: see the judgment of Ward LJ, paras 11-16 and section 8(11) of the 1991 Act. But these procedures were judged by the government of the day to be unsatisfactory, for reasons summarised in para 2 of the Summary in a White Paper "Children Come First" vol I (Cm 1264) presented to Parliament in October 1990:

    "2.  The present system of maintenance is unnecessarily fragmented, uncertain in its results, slow and ineffective. It is based largely on discretion. The system is operated through the High and county courts, the magistrates' courts, the Court of Session and the Sheriff Courts in Scotland and the offices of the Department of Social Security. The cumulative effect is uncertainty and inconsistent decisions about how much maintenance should be paid. In a great many instances, the maintenance awarded is not paid or the payments fall into arrears and take weeks to re-establish. Only 30 per cent of lone mothers and 3 per cent of lone fathers receive regular maintenance for their children. More than 750,000 lone parents depend on Income Support. Many lone mothers want to go to work but do not feel able to do so."

It was proposed (Summary, para 6) to create a Child Support Agency which would have responsibilities for the assessment, review, collection and enforcement of maintenance payments, with powers to collect information on incomes and obligations, make a legally binding assessment of what was payable, determine methods of payment, monitor and (where necessary) collect maintenance and enforce payment where payments failed. Once the CSA was fully established, all claims for maintenance and reviews of maintenance would be handled by the CSA and not by the courts (Summary, para 8). The CSA was to have responsibility for the assessment, collection and enforcement of maintenance payments (chapter 2, para 2.2). It was regarded as important that, as far as possible, all the services relating to child maintenance provided to the public should be delivered by one single authority, the CSA, for which it should be a priority to secure payment to the caring parent as quickly and accurately as possible (chapter 5, para 5.2). It was to take appropriate enforcement action at an early date when payments were not made (chapter 5, para 5.3). The White Paper outlined the proposed means of enforcement, and stated (chapter 5, paras 5.20, 5.24):

    "Taking enforcement action

    5.20  If enforcement action is to be effective, it has to be taken quickly. It is therefore proposed that, when a parent first commissions the Child Support Agency to take enforcement action on her behalf, that parent should give a standing authority for the Agency to take action if and when full payment is not made on time. If the Agency were required to seek specific authority to act in every instance, then that could only cause additional delay.

    5.24  The final stage, and very much a last resort, would be for the Agency to apply to the court for the court to take action. It is to be expected that the other measures, already described, will be more effective and it should be necessary to apply to the courts only very rarely. In England and Wales, the courts have the power to impose deferred prison sentences, where the debtor is committed to prison if the debt has not been paid in a specified period of time, or immediate prison sentences."

It was to be open to parents who were able to reach agreement to resolve the issue of child maintenance between themselves, whether or not in a sum assessed by the CSA, provided the caring parent was not in receipt of benefit from the state (chapter 5, para 5.26).

    4.  The Child Support Act 1991 gave effect to the scheme foreshadowed by the White Paper. It imposed a responsibility for maintaining a qualifying child on each parent (section 1(1)). It imposed a duty on the absent or non-resident parent to make payment of child maintenance in any periodical sums assessed (section 1(3)). It obliged the Secretary of State, on the application of either parent, to assess the child maintenance payable according to a statutory formula (sections 4, 11). It empowered the Secretary of State to take enforcement action if authorised to do so (sections 4, 6). It gave the Secretary of State significant powers (sections 14, 15, 30, 31, 33, 35, 36, 39A). While the role of the courts was preserved in relation to consensual settlements reached by parents not in receipt of state benefit (section 8), and there can be no doubt of the Secretary of State's duty to account to the caring parent for sums which he has received from the paying parent, subject to any appropriate deduction of benefit, the Act conferred no right of recovery or enforcement on a caring parent such as Mrs Kehoe against an absent or non-resident parent such as Mr Kehoe.

    5.  In Department of Social Security v Butler [1995] 1 WLR 1528 the issue was whether the court could grant a Mareva injunction to the Secretary of State against an absent or non-resident parent who had failed to make the payments assessed under the 1991 Act. Evans LJ, at pp 1531-1532 said:

    "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 agreed at pp 1540-1541:

    "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 also agreed, at p 1541:

    "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."

In Huxley v Child Support Officer [2000] 1 FLR 898, 908, Hale LJ, with the concurrence of Auld and Pill LJJ, helpfully characterised the regime established by the 1991 Act:

    "The child support system has elements of private and public law but fundamentally it is a nationalised system for assessing and enforcing an obligation which each parent owes primarily to the child. It replaces the powers of the courts, which can no longer make orders for periodical payments for children save in very limited circumstances. Unless she can secure a voluntary agreement at least as high as that which the CSA would assess, the PWC is expected to look to the Agency to assess her child support according to the formula, whether or not she is on benefit. The fact that it does her no direct good if she is on means-tested benefits, and that much CSA activity so far has been in relation to parents on benefit, does not alter the fundamental characteristics of the scheme."

    6.  That a caring parent in the position of Mrs Kehoe was given no right of recovering or enforcing a claim to child maintenance against an absent or non-resident parent was not a lacuna or inadvertent omission in the 1991 Act: it was the essence of the new scheme, a deliberate legislative departure from the regime which had previously obtained. The merits of that scheme are not for the House in its judicial capacity to evaluate. But plainly the scheme did not lack a coherent rationale. The state has an interest, most directly in cases where public funds are disbursed, but also more generally that children should be adequately supported. It might well be thought that a single professional agency, with the resources of the state behind it and an array of powers at its command, would be more consistent in assessing and more effective and economical in enforcing payment than individual parents acting in a random and uncoordinated way. It might also be thought that the interposition of an independent, neutral, official body would reduce the acrimony which had all too frequently characterised applications for child maintenance by caring against absent or non-resident parents in the past which, however understandable in the aftermath of a fractured relationship, rarely enured to the benefit of the children. For better or worse, the process was deliberately changed.

    7.  The 1991 Act cannot in my opinion be interpreted as conferring any right on a parent in the position of Mrs Kehoe. She is of course the person to whom child maintenance will be paid, directly or indirectly and subject to any deduction of benefit, as the person who incurs the expense of bringing up the children. But the right which she had enjoyed under the former legislation was removed, and the right to recover the maintenance has been vested in the CSA.

    8.  This conclusion is not fatal to Mrs Kehoe's argument, but it is very highly damaging. For while the Strasbourg authorities are not bound by the classifications of national law, it is clear that the function of article 6 of the Convention is to guarantee certain important procedural safeguards in the exercise of rights accorded by national law and not ordinarily to require that particular substantive rights be accorded by national law: James v United Kingdom (1986) 8 EHRR 123, para 81; H v Belgium (1987) 10 EHRR 339; Z v United Kingdom (2001) 34 EHRR 97, paras 87 and 98; Matthews v Ministry of Defence [2003] 1 AC 1163, paras 3, 51, 142. Thus, if national law conferred on Mrs Kehoe a right to recover child maintenance from her former husband, article 6 would guarantee her access to an impartial and independent court where her claim would be fairly determined. But article 6 does not require that she have such a right.

    9.  I do not think that any of the Strasbourg jurisprudence to which the House was referred throws doubt on that conclusion. In Golder v United Kingdom (1975) 1 EHRR 524, it is true, the Court found a violation of Mr Golder's rights under article 6(1) in the denial of access to a solicitor. But the Court interpreted article 6(1) as conferring a right of access to a court (see paras 28-36 of the judgment); it was plain that this right would have been valueless had Mr Golder been unable to obtain legal advice; and there was no doubt about his right in principle to sue for defamation. I do not think any principle can be extrapolated from this case to assist Mrs Kehoe. In Ashingdane v United Kingdom (1985) 7 EHRR 528, para 54, the Court found it unnecessary to decide whether the right which the applicant sought to assert in this country was, in Convention terms, a "civil right". In Philis v Greece (1991) 13 EHRR 741 the right which the applicant had sought to assert in the national court was to professional fees for which he had contracted and which (he claimed) he had earned. There is, again, no principle which can be extrapolated to assist Mrs Kehoe.

    10.  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.

    11.  I agree with the majority of the Court of Appeal and with my noble and learned friends Lord Hope of Craighead, Lord Walker of Gestingthorpe and Lord Brown of Eaton-under-Heywood, and would accordingly dismiss this appeal.


My Lords,

    12.  The appellant, Mrs Mary Kehoe, was for many years one of those many thousands of lone parents caring for children who are dependent on the system for the payment of child support maintenance that was set up by the Child Support Act 1991. She was married in 1983 and has four children. They were born in 1982, 1984, 1987 and 1989. In 1992 she and her husband moved from Dublin to the United Kingdom. The marriage broke down in 1993. On 17 December 1993 Mrs Kehoe filed a petition for divorce. On 24 December 1993 she applied to the Child Support Agency under section 4(1) of the 1991 Act for a maintenance assessment to be made for her four children. On 1 January 1994 her husband moved out of the family home. The children were left in her care. She needed her husband's help to support them.

    13.  The history of Mrs Kehoe's relationship with the Child Support Agency ("the agency"), of the various maintenance assessments and of the steps which the agency took to try to enforce them against Mr Kehoe is lengthy and complex. The essential facts are set out in Wall J's careful judgment in the Administrative Court [2003] 2 FLR 578, paras 32 to 41 and in Ward LJ's equally careful judgment in the Court of Appeal [2004] EWCA Civ 225; [2004] QB 1378, paras 31 to 37. It is not necessary to set them all out again here. It is enough to provide the following outline by way of background.

The facts

    14.  There was an initial delay by the agency in sending a maintenance inquiry form to Mr Kehoe. It lasted for well over a year, for which Mrs Kehoe has been compensated. The form was eventually sent to him on 25 May 1995. This was the date as from which his liability was to be calculated. He provided insufficient information for a full assessment to be made at that stage, so an interim maintenance assessment was made with effect from 5 October 1995. A full maintenance assessment was made later, but arrears of maintenance due by him since May 1995 began to accumulate. In June 1996 the agency applied in the magistrates' court for a liability order to be made against him under section 33(3) of the 1991 Act. At a hearing on 13 August 1996, at which Mrs Kehoe was not present, Mr Kehoe disputed the amount of the arrears. The hearing had to be adjourned for the dispute to be resolved. On 23 September 1996 the agency decided to withdraw the application because the amount of the arrears could not be substantiated.

    15.  Arrears continued to accumulate, so the agency made a second application for a liability order to cover arrears that had arisen between 25 May 1995 and 11 September 2000. On 15 December 2000 this application was granted. Bailiffs were instructed to levy distress, but this was unsuccessful. A deduction from earnings order was issued on 9 October 2001 and it was followed by a further order for an increased amount on 21 February 2002. But Mr Kehoe was a director of the company on which the orders were served, and these steps too were unsuccessful. When he was interviewed by the agency on 21 October 2002 Mr Kehoe alleged that two of the children had been living with him for five years and that a third child had moved to live with him recently. He also said that Mrs Kehoe had moved to Spain where she was living with the fourth child. The agency established that Mrs Kehoe had moved to Spain permanently, so it closed her file on 13 January 2003 with effect from 30 September 2002. But arrears remain due to Mrs Kehoe which the agency is still seeking to enforce against Mr Kehoe.

    16.  Mrs Kehoe was for a time in receipt of child benefit. But she had a part-time job when Mr Kehoe left the family home, and in October 1994 she obtained full-time employment as a secretary. Although she had to struggle to make ends meet, she did not claim income support, family credit or any other benefit of the kind prescribed for the purposes of section 6 of the 1991 Act. So she is not and never has been one of those persons with care who may be required under section 6(1) to authorise the Secretary of State to take action under the Act to recover child support maintenance from the absent parent. Her position is that she was entitled under section 4 of the 1991 Act to apply to the Secretary of State for the making of a maintenance assessment. This was done on her own initiative.

    17.  Section 4(2) of the 1991 Act provides:

    "Where a maintenance assessment has been made in response to an application under this section the Secretary of State may, if the person with care or absent parent with respect to whom the assessment was made applies to him under this subsection, arrange for -

    (a)  the collection of the child support maintenance payable in accordance with the assessment;

    (b)  the enforcement of the obligation to pay child support maintenance in accordance with the assessment."

The issues

    18.  The question which lies at the heart of this case is whether the provisions of the 1991 Act which preclude a person with care from playing any part in the enforcement of maintenance assessments made against the absent parent in response to an application made under section 4 of the Act are compatible with article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It should be noted that no challenge is being made in this case to the system which the 1991 Act lays down for the making of the assessments for child support maintenance by the agency. It is not suggested that this part of the system is incompatible with the Convention. It is the enforcement stage of the process only that is being brought under scrutiny. Nor are we concerned in this case with the various situations where the courts retain jurisdiction over claims for the enforcement of the right of children to be maintained by their parents which are outside the system for which responsibility has been placed by the 1991 Act on the agency: for a convenient list, see Wilkinson and Norrie, Parent and Child, 2nd ed (Edinburgh 1999), paras 14.13-14.

    19.  Mrs Kehoe's complaint is that the agency delayed unreasonably in taking enforcement action against Mr Kehoe, that the facts asserted by Mr Kehoe which were accepted by the agency when he disputed the amount of the arrears were not correct and that she was precluded by the statutory scheme from intervening on her own behalf for the enforcement of the maintenance assessments. She claims that the effect of the scheme was to restrict her right of access to a court for the determination of her civil rights within the meaning of article 6(1). She seeks a declaration under section 4(2) of the Human Rights Act 1998 that the provisions of the 1991 Act are incompatible with her Convention rights under that article. She also seeks a declaration that her Convention rights were breached by delay on the part of the agency. She claims damages under sections 7 and 8 of the Human Rights Act 1998 with respect to the agency's acts and failures to act for the period from 2 October 2000 when the relevant sections of that Act came into force.

    20.  The first question is whether Mrs Kehoe's right to the collection and enforcement of a maintenance assessment made in response to an application made under section 4 of the 1991 Act is a "civil right" within the meaning of article 6(1) of the Convention. If that question is answered in the affirmative, two further questions then arise: whether the scheme which the 1991 Act lays down is nevertheless compatible with the Convention because the duties of the Secretary of State under the Act, being amenable to judicial review, are subject to control by a court having full jurisdiction to deal with the case as the nature of the case requires so as to fulfil the Alconbury criteria (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295, 320-322, paras 49-54, per Lord Slynn of Hadley; p 330, para 88, per Lord Hoffmann); and, if not, whether the restriction on the right of the parent's access to a court for the enforcement of the maintenance assessment is nevertheless compatible with article 6(1) because it is proportionate.

The scheme of the 1991 Act

    21.  A comprehensive description of the scheme of the 1991 Act, as amended by the Child Support Act 1995 and the Child Support, Pensions and Social Security Act 2000, is set out in the judgments of Wall J in the Administrative Court [2003] 2 FLR 578, paras 18 to 27 and of Ward LJ in the Court of Appeal [2004] 2 WLR 1481, paras 21 to 30. I can confine myself to the essential details.

    22.  The basic principles are set out in sections 1 to 10 of the 1991 Act, as originally enacted. It is necessary, to set the scene for this judgment, to mention only some of them. Section 1(1) provides that, for the purposes of the Act, each parent of a qualifying child is responsible for maintaining him. Section 1(2) provides:

    "For the purposes of this Act, an absent parent shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Act."

Section 3 defines the expressions "qualifying child", "absent parent" and "person with care". A child is a qualifying child if one or both of his parents is, in relation to him, an absent parent. The parent of any child is an absent parent in relation to the child if that parent is not living in the same household with the child and the child has his home with a person who is, in relation to him, a person with care. A person is a person with care in relation to any child if he is a person with whom the child has his home and usually provides day to day care for the child. That person need not be an individual: see section 44(2).