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

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    23.  Section 4(1) provides that a person who is, in relation to any qualifying child or any qualifying children, either the person with care or the absent parent may apply to the Secretary of State for a maintenance assessment to be made under the Act with respect to that child or any of those children. That provision is to be contrasted with section 6(1), which provides that where income support, family credit or any other benefit of a prescribed kind is claimed by or in respect of, or paid to or in respect of, the parent of a qualifying child she shall, if she is a person with care of the child and she is required to do so by the Secretary of State, authorise him to take action under the Act to recover child maintenance support from the other parent. The Secretary of State has power to require a parent to authorise the making of an assessment as soon as benefits of the kind there specified are claimed. That is not what happened in Mrs Kehoe's case. So your Lordships are concerned with only maintenance assessments made under section 4, the making of an application for which is at the option of either the person with care or the absent parent.

    24.  Section 11 provides that any application for a maintenance assessment made to the Secretary of State shall be referred by him to a child support officer, and that the amount of child support maintenance to be fixed by any maintenance assessment shall be determined in accordance with the provisions of Schedule 1 which provides for its calculation according to an elaborate formula. Once this stage is reached we are in the field of algebra. But fortunately it is not necessary to probe into these details in this case.

    25.  I have already quoted the terms of section 4(2) in full, as they lie at the centre of this dispute: see para 17. In summary, it provides that, where a maintenance assessment has been made in response to an application under section 4 and either the person with care or the absent parent with respect to whom the assessment was made applies to him under that subsection, the Secretary of State may arrange for the enforcement of the obligation to pay child support in accordance with the assessment. Section 4(2) must be read together with section 4(3), which provides that where an application for the enforcement of the obligation authorises the Secretary of State to take steps to enforce the obligation whenever he considers it necessary to do so, the Secretary of State may act accordingly. These subsections must also be read together with section 2, which provides that where the Secretary of State is considering the exercise of any discretionary power conferred by the Act, he shall have regard to the welfare of any child likely to be affected by his decision. In practice, of course, applications under section 4 are made not to the Secretary of State himself but to the agency. It is the agency that decides whether or not, in any given case, the discretionary powers which the section confers on the Secretary of State with regard to the enforcement of the obligation to pay child support maintenance should be exercised.

    26.  Section 8 deals with the role of the courts with respect to maintenance for children. Subsection (1) provides that it applies in any case where a child support officer would have jurisdiction to make a maintenance assessment with respect to a qualifying child and an absent parent of his on the application of a person entitled to apply for that assessment. The basic rule is set out in subsection (3), which provides:

    "In any case where subsection (1) applies, no court shall exercise any power which it would otherwise have to make, vary or revive any maintenance order in relation to the child and absent parent concerned."

    27.  The jurisdiction of the courts to make orders for the maintenance of children is preserved in the various circumstances described in the remaining subsections of section 8. These include cases such as where the court is satisfied that the circumstances of the case make it appropriate for the absent parent to make payments under a maintenance order in addition to the child support maintenance payable by him in accordance with the maintenance assessment: see subsection (6). Parents who have previously been able to agree in writing the level of child maintenance may obtain an order from the court by consent: see subsection (5). Section 9(2) provides that nothing in the Act shall be taken to prevent any person from entering into an agreement for the making of periodical payments by way of maintenance to or for the benefit of any child. But it is unnecessary to explore these details further, as none of these exceptions apply in the case of Mrs Kehoe.

The rights and obligations under the 1991 Act in domestic law

    28.  In Matthews v Ministry of Defence [2003] UKHL 4; [2003] 1 AC 1163, 1169, para 3 Lord Bingham of Cornhill said that an accurate analysis of a claimant's substantive rights in domestic law is an essential first step towards deciding whether he has, for purposes of the autonomous meaning given to the expression "civil rights" by the Convention, a "civil right" such as will engage the guarantees in article 6. I would respectfully follow this guidance. So I must now take a closer look at the effect of the provisions of the 1991 Act, as seen against the background of the previous law which the scheme of the Act was designed to replace.

    29.  The extent of parents' duty to maintain their children at common law and the statutory procedures that were introduced to enable courts to make orders for maintenance to be paid to or for a child's benefit have been described by Ward LJ in the Court of Appeal [2004] 2 WLR 1481, paras 7 to 16, and by my noble and learned friend Baroness Hale of Richmond. At the outset of his summary Ward LJ makes the point that, while there was a common law duty to maintain, the common law provided no remedy. Under English law a wife could neither claim nor enforce any right to maintenance, either for herself or the children, in the civil courts. The gap was filled for the first time by section 35 of the Matrimonial Causes Act 1857, which enabled the divorce courts to make provision with respect to the custody, maintenance and education of children, and by section 52 of that Act which provided for the enforcement of these orders. The jurisdiction was continued and enlarged upon in a series of later statutes. For example, the Guardianship of Infants Act 1925 enabled the court to make an order against a parent to pay such weekly or other periodic sum towards the maintenance of his child as, having regard to the means of that parent, it might think reasonable. The current powers are set out in section 15 of and Schedule 1 to the Children Act 1989 and, in regard to Scotland, sections 1 to 6 of the Family Law (Scotland) Act 1985. These provisions have not been repealed. But the effect of section 8(3) of the 1991 Act is that the court's power to make maintenance orders under those statutes in relation to a child is no longer available where a child support officer would have jurisdiction to make a maintenance assessment under the 1991 Act.

    30.  The effect of the 1991 Act, then, is to replace the existing statutory framework with an entirely new scheme. The background to its introduction was explained in paragraph 2 of the summary in the White Paper, Children Come First (October 1990) (Cm 1264), which stated:

    "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."

    31.  The defects identified in this paragraph were due in part to the fact that the assessment of the amounts to be paid as maintenance for children by their parents was left to the courts, leading to inconsistency; and in part to the fact that the initiative lay with the parent in whose favour an order was made to ensure that payments were kept up to date and that, where necessary, the order was enforced, with the result that in many cases the amounts due were not paid. Hitherto the approach had been to confer a right on the parent with care to claim maintenance for the child and, if the sums which the court ordered to be paid were not paid, to take proceedings in her own name for their recovery. The system depended on the traditional view that the solution to problems created by gaps in the common law was to create new rights and obligations by statutory enactment. The enforcement of these rights and obligations would then follow the ordinary course, whereby it was up to the party whose rights were infringed to take proceedings to enforce them.

    32.  The 1991 Act departs entirely from this approach. As Hale LJ said in Huxley v Child Support Officer [2000] 1 FLR 898, 908, the child support system which was introduced by this Act is fundamentally a nationalised system for assessing and enforcing an obligation which each parent owes primarily to the child. It replaces the powers of the courts to make orders for periodical payments to be made for children. And it replaces the system which left it to parents to apply for the enforcement of these orders with a system that places the responsibility for enforcement on the Secretary of State and through him on the agency.

    33.  The Act starts by asserting in section 1(1) that, for its purposes, each parent of a qualifying child is responsible for maintaining him. It describes the maintenance of any qualifying child of his by an absent parent in section 1(2) as a "responsibility". Section 1(2) states that the absent parent will have met this responsibility by making such periodical payments of maintenance as may be determined in accordance with the provisions of the Act. The Act uses the word "duty" in section 1(3), where it refers to the duty of the absent parent with respect to whom the assessment was made to make the payments, and the word "obligation" in section 4(2)(b), where it refers to the enforcement of the obligation to pay child support maintenance in accordance with the assessment. But nowhere in the Act is it said that the absent parent owes a duty, or is under an obligation, to pay that amount to the person with care. Nor is it said anywhere that the person with care has a right which she can enforce against the absent parent.

    34.  The effect of the Act is that the obligation to pay the maintenance assessment is owed in respect of the qualifying child but that it is enforceable by the Secretary of State. As Morritt LJ said in Department of Social Security v Butler [1995] 1 WLR 1528, 1540, the Secretary of State claims in respect of the statutory right which is correlative with the obligation expressed in section 1(3). Both the person with care and the absent parent are given the right by section 4(1) to apply to the Secretary of State for the making of a maintenance assessment. Where an assessment is made, they are both then given the right by section 4(2) to apply to the Secretary of State to arrange for its collection and enforcement. But enforcement is not something which they can demand. Section 4(2) makes it clear that enforcement of the obligation to pay child support maintenance is at the discretion of the Secretary of State, not at the discretion of the person who applies for its enforcement.

    35.  I would conclude that the 1991 Act has deliberately avoided conferring a right on the person with care to enforce a child maintenance assessment against the absent parent. Enforcement is exclusively a matter for the Secretary of State. It follows that the person with care has no right to apply to a court for the enforcement of the assessment. A child who has attained the age of 12 years and is habitually resident in Scotland is given the right to apply to the Secretary of State for a maintenance assessment by section 7(1). But here too the enforcement of any assessment is a matter for the Secretary of State, not for the child. The system has been designed on the assumption that a system of child support maintenance which is run by the state will operate more efficiently than one that relies on private enterprise. Experience has shown that its operation in practice has fallen far short of what was expected of it. But that is the system that Parliament has laid down, and we must take it as we find it. It does not permit a person with care to intervene in proceedings for its enforcement which are not being conducted as efficiently or as effectively as she would like. This is a consequence of the fact that she has no right against the absent parent which she can enforce in any court. It is a matter of substantive law, not of procedure.

Does the 1991 Act create a "civil right" for the purposes of article 6?

    36.  Article 6(1) of the Convention provides that in the determination of "his civil rights and obligations" everyone is entitled to a fair hearing by an independent and impartial tribunal established by law. This provision must be read in the light of the rule of law referred to in the preamble to the Convention, of which the principle whereby a civil claim must be capable of being submitted to a judge is an integral part. In Golder v United Kingdom (1975) 1 EHRR 524, 535-536, paras 35-36, the European Court said that this principle ranks as one of the universally recognised fundamental principles of law and that the right of access constitutes an element which is inherent in the right stated in article 6(1). In Ashingdane v United Kingdom (1985) 7 EHRR 528, 546-547, para 57, the court said that limitations applied by the state on the right of access must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. But in order to invoke this principle one must first be able to say that the individual has a claim for the infringement of a "civil right".

    37.  The approach which the European Court takes to this issue was explained by the Commission in Pinder v United Kingdom (1984) 7 EHRR 464, 465, para 5. It is worth quoting the following sentences from that important paragraph:

    "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 to decide whether it is a 'civil' right within the meaning of article 6(1). However, in the Commission's view, article 6(1) does not impose requirements in respect of the nature and scope of the relevant national law governing the 'right' in question. Nor does the Commission consider that it is, in principle, competent to determine or review the substantive content of the civil law which ought to obtain in the State Party any more than it could in respect of substantive criminal law. As it has stated in App No 7151/75: Sporrong and Lönnroth v Sweden, series B:

    Whether a right is at all at issue in a particular case depends primarily on the legal system of the State concerned. It is true that the concept of a 'right' is itself autonomous to some degree. Thus it is not decisive for the purposes of article 6(1) that a given privilege or interest which exists in the domestic system is not classified or described as a 'right' by that system. However, it is clear that the Convention organs could not create by way of interpretation of article 6(1) a substantive right which has no legal basis whatsoever in the State concerned."

    38.  As this passage indicates, each of the two words in the phrase "civil right" has a part to play in the assessment as to whether the guarantee in article 6(1) is engaged. The exercise may be broken down into stages in this way. First it must be demonstrated that the applicant is seeking access to a court to enforce what the European Court will accept, according to the autonomous meaning which it gives to this word, is a "right". It must then be demonstrated that this is a right which the European Court will classify, again according to the autonomous meaning that it gives to it, as a "civil" right. Then there is the question whether the "civil right", if it is subject to some degree of limitation by the national law, is restricted or reduced to such a degree or to such an extent that the very essence of the right is impaired. This is because, while the right of access to a court is not the subject of an absolute guarantee in article 6(1), the rule of law must be maintained and the individual must be protected against the exercise of arbitrary power by the executive. If it is so restricted or reduced, the Convention right will have been breached.

    39.  Each of these three stages presents its own problems. It is the question whether there is a 'right' at all that is in issue in Mrs Kehoe's case. Her case can be contrasted with Golder v United Kingdom (1975) 1 EHRR 524, where there was no doubt that the right which the applicant was seeking to enforce was a "right" and that it was a "civil right" too, as his complaint was that he was being prevented from instituting libel proceedings against a prison officer. It can be contrasted also with Ashingdane v United Kingdom (1985) 7 EHRR 528, where it was contended that the applicant did not have a "civil right" to challenge the legality of his continued detention in a secure hospital. The court said at p 546, para 54, that it did not consider it necessary to settle that dispute as it had come to the conclusion that, even assuming article 6(1) to be applicable, the requirements of that provision were not violated. In Philis v Greece (1991) 13 EHRR 741 a consultant engineer claimed that he had been denied access to a court for the recovery of fees that were owed to him, so here too there was an undoubted "right". In Hornsby v Greece (1997) 24 EHRR 250 the complaint was that a judicial decision in the applicants' favour had not been implemented. There was no issue in that case either as to whether there was a "right".

    40.  The problem in this case differs also from that which was considered in Matthews v Ministry of Defence [2003] 1 AC 1163, where the issue was whether the limitations that had been imposed on the serviceman's right of action was the product of rules of procedure which would engage the article 6(1) guarantee or was the product of substantive law which was for the State party itself to determine. We do not need in this case to trace the dividing line between what the court in Fayed v United Kingdom (1994) 18 EHRR 393, 430, para 67 referred to as the procedural and substantive limitations of a given entitlement under domestic law. Lord Hoffmann explained in his speech in Matthews, paras 29-38 how that issue should be approached. In these paragraphs he makes the point that the purpose for which this distinction exists is to prevent contracting states from imposing restrictions on the right to bring one's dispute before the judicial branch of government in a way that threatens the rule of law and the separation of powers: see para 35. In the present case, however, the issue is much more clear cut. It is whether Mrs Kehoe was given a right of any kind by the 1991 Act which could be classified as a "right" within the meaning of article 6(1).

    41.  The key to this case lies in the point of principle that was identified by the Commission in Pinder v United Kingdom (1984) 7 EHRR 464, 465, para 5. This is that, while the concept of a "right" is autonomous to some degree because it does not depend on how the privilege or interest concerned is classified in the domestic system, it is not open to the European Court when it is applying article 6(1) to create a substantive right which has no legal basis in that system at all. Article 6(1), on its own terms, has nothing to say about the content of the individual's civil rights. Nor does it impose an obligation on the state party to confer any particular rights in substantive law on the individual. As the European Court said in James v United Kingdom (1986) 8 EHRR 123, 157-158, para 81:

    "Article 6(1) extends only to 'contestations' (disputes) over (civil) 'rights and obligations' which can be said, at least on arguable grounds, to be recognised under domestic law: it does not in itself guarantee any particular content for (civil) 'rights and obligations' in the substantive law of the Contracting States."

In Z v United Kingdom (2001) 34 EHRR 97, 134, para 87 the Court quoted these words which I have taken from its decision in James v United Kingdom, which it said was part of "its constant case law". At p 137, para 98 the Court said:

    "As it has recalled above in paragraph 87 it is a principle of Convention case law that article 6 does not in itself guarantee any particular content for civil rights and obligations in national law, although other articles such as those protecting the right to respect for family life and the right to property may do so. It is not enough to bring article 6(1) into play that the non-existence of a cause of action in domestic law may be described as having the same effect as an immunity, in the sense of not enabling the applicant to sue for a given category of harm."

    42.  The last sentence of the passage that I have quoted from Z v United Kingdom can, I think, be applied directly to the present case. It is not enough to bring article 6(1) into play to assert that, as the whole object of the scheme is that the person with care is the person who will ultimately benefit from the enforcement process, Mrs Kehoe should be allowed at least some say in how that process is conducted. I respectfully agree with Latham LJ that it seems unsatisfactory that she should not have that right, as the agency's priorities are inevitably different from those of the person with care of the child, who may disagree profoundly with the agency as to how the proceedings in which she has such an obvious interest should be conducted: [2004] QB 1378, 1414, para 102. But the fact is that the 1991 Act itself, which is the only source from which it could be derived, does not give her that right. The scheme of the 1991 Act is not designed to allow the person with care to play any part in the enforcement process at all. It is not possible to envisage how that might be done without re-writing the scheme which the Act has laid down. In my opinion this is not even a case where it can be said that the existence of a right to participate in this process is arguable.

Conclusion

    43.  I would hold that Mrs Kehoe's argument that the system which prevents her from playing any part in the enforcement process is incompatible with article 6(1) fails at the first stage. This is because she has no substantive right to do this in domestic law which is capable in Convention law of engaging the guarantees that are afforded with regard to "civil rights and obligations" by that article. I appreciate the force of her complaint that the agency has failed to take action within a reasonable time to enforce the assessments. But, as article 6(1) is not engaged, the conclusion must be that the agency cannot be said to have acted unlawfully within the meaning of section 7(1) of the Human Rights Act 1998. The result is that that Act cannot provide her with a remedy. I would dismiss the appeal.

LORD WALKER OF GESTINGTHORPE

My Lords,

    44.  I have had the great advantage of reading in draft the opinions of my noble and learned friends Lord Bingham of Cornhill and Lord Hope of Craighead. I am in full agreement with their opinions. The Child Support Act 1991 as amended did not give Mrs Kehoe any right to participate directly in the process of enforcing a child support maintenance assessment against Mr Kehoe, in the sense of her being able to bring proceedings in her own name against him. That is, in the circumstances of her case, prohibited by section 8 of the 1991 Act.

    45.  I would only add that I would not accept (and I do not understand my Lords to be expressing the view) that Mrs Kehoe has no enforceable rights whatever in respect of the enforcement process. If the Child Support Agency were to refuse to enforce a claim because it made some error of law (such as misunderstanding the extent of its statutory powers) Mrs Kehoe could take proceedings by way of judicial review, and in that way she could hope to influence the enforcement process. She would plainly have a sufficient interest to bring such proceedings.

    46.  Whether she would (in any such judicial review proceedings) be securing the determination of a civil right is, I think, open to debate. She would be acting to obtain through a social welfare agency a pecuniary benefit in which she had a direct personal interest, but in the enforcement of which the agency had a measure of discretion. The trend of the Strasbourg jurisprudence is towards an ever-widening interpretation of "civil rights": see Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430, 439, para 6 (Lord Bingham of Cornhill); pp 454-456, paras 61 to 69 (Lord Hoffmann) ; pp 459-461, paras 84-94 (Lord Millett).

    47.  There are, I think, parallels with private law relationships in which an individual may have interests which would generally be regarded as important legal rights, but which are not normally enforceable by direct action. A shareholder has an interest in seeing that his company's assets are not misappropriated, and a member of an occupational pension scheme has a similar interest in respect of assets in the pension fund. Well-settled principles of company law and trust law (to which there are also well-settled exceptions) require him to call on the company or the trustees to enforce rights of action which are vested, not in him, but in the company or the trustees. If they fail to act the shareholder or beneficiary may have to embark on domestic proceedings as an indirect means of trying to enforce his interest. The absence (as a normal rule) of a direct right of action is not a deprivation of his Article 6 (1) rights, but is a reflection of substantive principles which are part of the content of British company law or English trust law. Mrs Kehoe's position under the 1991 Act is essentially the same.

    48.  I agree that the appeal should be dismissed.

    BARONESS HALE OF RICHMOND

My Lords,

    49.  This is another case which has been presented to us largely as a case about adults' rights when in reality it is a case about children's rights. It concerns the obligation to maintain one's children and the corresponding right of those children to obtain the benefit of that obligation. The issue is whether the restrictions placed on direct access to the courts to enforce that obligation by section 8(1) and (3) of the Child Support Act 1991 are compatible with article 6 of the European Convention on Human Rights. Article 6 is concerned only with the fair and impartial adjudication and enforcement of the rights recognised in domestic law. It does not guarantee any particular content to those rights. Put another way, the issue is whether the 1991 Act has defined the extent of that obligation and that right or whether it has merely altered the machinery for assessing and enforcing them. If it is the latter, then the underlying right still exists and the Act's provisions may be regarded as procedural only. If it is the former, then all that survive are the rights set out in the Act itself. In my view, it is not possible to answer that question by looking only at the rights contained in the 1991 Act itself. They have to be set in the context of the scope of the parents' obligations and the children's rights as a whole. The Child Support Act is only one of a number of ways in which the law recognises these.

The development of the parental obligation to maintain

 
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