AMS v Child Support Officer
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE ROCH,LORD JUSTICE THORPE |
| Judgment Date | 17 November 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1117-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | SSTRF 97/0357/B |
| Date | 17 November 1997 |
[1997] EWCA Civ J1117-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(SOCIAL SECURITY COMMISSIONERS)
Royal Courts Of Justice
Strand, London WC2
Lord Justice Simon Brown
Lord Justice Roch
Lord Justice Thorpe
SSTRF 97/0357/B
THE APPELLANT (FATHER) appeared in person.
MR J R McMANUS (instructed by the Office of the Solicitor to the DSS) appeared on behalf of the First Respondent.
THE SECOND RESPONDENT (MOTHER) appeared in person.
MR A MOYLAN (instructed by the Treasury Solicitor) appeared as Amicus Curiae.
Monday, 17th November 1997
This is an appeal, by leave of this court, against the decision of a Child Support Commissioner, Mr Goodman, made on 20th August 1996.
The central issue raised is whether the second respondent's application dated 14th April 1993, made under section 4(1) of the Child Support Act 1991, for a maintenance assessment to be made against the appellant in respect of their nine-year-old child was, and remains, barred by virtue of an order of the Barnet County Court dated 7th May 1991, under which the appellant was required to, and did, pay a total of £35,000 in respect of that child. That, in turn, depends upon whether that order, or perhaps the agreement underlying it, constitutes a "maintenance order" within the meaning of section 8(11) of the 1991 Act in respect of the child, alternatively a "maintenance agreement" in respect of the child within the meaning of section 9(1) of the Act.
The factual background to the appeal can be quite shortly stated. The appellant and the second respondent (whom I shall henceforth refer to as "the mother") have a daughter who was born on 20th May 1988. The appellant is the absent father. The mother is the parent with care. On 5th October 1988 an affiliation order was made in the Barnet Magistrates' Court. That was subject to a number of variations, the final one being on 14th March 1990.
There came a time when the mother issued an originating application in the Barnet County Court. Central to this appeal is a consent order made in those proceedings in the Barnet County Court dated 7th May 1991, which I should set out in full:
" In the Matter of the Guardianship of Minors Acts 1971 and 1973
And In the Matter of [A I S]—a Minor
ON HEARING Counsel for both parties
AND UPON the basis that the parties agree that the capital provision made herein is, and is intended to be, in full and final satisfaction of any and all claims that may at any time be made against the Respondent for the financial support of the minor, [A I S], whether these claims be for capital or for periodical payments or otherwise
AND UPON the Applicant undertaking, until further order, not to disclose to any third party any information or documentation disclosed in the proceedings herein or to contact the Respondent, or any member of his family, or any member of his staff or any of his clients
BY CONSENT
IT IS ORDERED AND DIRECTED that:-
1. the custody, care and control of the said minor be committed to the Applicant
2. the affiliation order made in the Barnet Magistrates' Court on 5th October 1988, and most recently varied on 14th March 1990, do stand discharged and cease to have effect on payment by the Respondent of the lump sum ordered herein
3. there be no order on the application herein for periodical payments, secured periodical payments or property adjustment
4. the Respondent do pay a lump sum to the said minor of £35,000.00 payable by instalments of £25,000.00 on or before 1st August 1991 and £10,000.00 within 12 months thereafter. Such sums to be paid to the Applicants' Solicitors as Agents for the said minor
5. there be no order as to costs, including costs reserved, save Legal Aid taxation of the Applicants' costs.
Certificate for Counsel for each party."
Both the sums referred to in paragraph 4 of that order were duly paid.
The Child Support Act 1991 came into force on 5th April 1993. The provisions directly in point upon the present appeal are, so far as relevant, these:
4.—(1) A person who is, in relation to any qualifying child … either the person with care or the absent parent may apply to the Secretary of State for a maintenance assessment to be made under this Act with respect to that child …
- (10) [A provision which was introduced into the Act by section 18(1) of the Child Support Act 1995 to replace paragraph 2 of the Schedule to the Child Support Act 1991 (Commencement No. 3 and Transitional Provisions) Order 1992, SI 1992 No. 2644, which had been in materially equivalent form] No application may be made at any time under this section with respect to a qualifying child … if -
(a) there is in force a written maintenance agreement made before 5th April 1993, or a maintenance order, in respect of that child … and the person who is, at that time, the absent parent …
8.—(11) In this Act `maintenance order', in relation to any child, means an order which requires the making or securing of periodical payments to or for the benefit of the child and which is made under …
(e) Schedule 1 to the Children Act 1989; or
(f) any other prescribed enactment …
9.—(1) In this section `maintenance agreement' means any agreement for the making, or for securing the making, of periodical payments by way of maintenance … to or for the benefit of any child."
On 14th April 1993 the mother applied to the Secretary of State under section 4(1) for a maintenance assessment with regard to the child. That, one notes, was just nine days after the relevant legislation came into force and such an application became possible. It was not, one further notes, an application under section 6, such as would be forced on the mother as a person in receipt of benefit.
Although the subsequent course of events is charted in the papers before this court in some considerable detail, all that need be noted for the purposes of this appeal is, first, that since 1993 various assessments have been made in regard to the appellant's maintenance liability in the region of £120 per week; second, that both the appellant and the mother have from time to time contested these assessments; and, third, that by his decision of 20th August 1996 the Commissioner allowed the appeals of both parents and referred the case for rehearing and redetermination by another child support appeal tribunal.
Critically for present purposes, the Commissioner concluded:
(1) That the Barnet County Court order was not a maintenance order within the meaning of section 8(11) because it was not an order requiring "the making or securing of periodical payments to or for the benefit of the child". It was not contended before him (nor, indeed, has it hitherto been contended by anyone) that the agreement underlying the order could be regarded as a maintenance agreement within the meaning of section 9(1).
(2) That the Barnet County Court order, although made under the guardianship of the Minors Acts 1971 and 1973 (the 1973 Act was, in fact, called the Guardianship Act 1973), is to be regarded as made under one of the enactments listed in section 8(11) on the basis that the 1971 and 1973 Acts are to be taken as impliedly referred to in the reference to "(e) Schedule 1 to the Children Act 1989". Had the order, therefore, otherwise qualified, the Commissioner would have held the mother's claim barred.
(3) That the case should be remitted for rehearing by a fresh tribunal, apparently for further facts to be found as to the income of the respective parties.
I would at this stage note in addition that although the payment of the capital sum of £35,000 did not, on the Commissioner's conclusion, bar the mother's claim, it nevertheless was a payment which fell to be taken into account in assessing maintenance as from 18th April 1995, when the Child Support (Maintenance Assessment and Special Cases) Regulations 1992 were amended in this regard. There was further such amending legislation (known as the Departure Directions) which, with effect respectively from 9th April 1996 and 2nd December 1996, further enabled capital payments, by way of either property transfers or lump sum payments, to be brought into account. Those matters are now dealt with by sections 28A, 28I and Schedules 4A and 4B of the 1991 Act, as inserted by the Child Support Act 1995.
Leave to appeal against the Commissioner's decision was given by a constitution of this court consisting of myself and Lord Justice Waller on 21st February 1997, when the appellant appeared before us in person, as, indeed, he has throughout all these proceedings. On that date we gave leave to appeal on one point and one alone. It was a point which had not previously been identified, at any rate clearly, and which crystallised only in the course of the oral hearing before us. The point was that the Barnet County Court order could perhaps be construed as one requiring the securing of periodical payments.
As Lord Justice Waller put it at page 4 of the judgment:
"The way the argument is put is that, prior to the making of this order, periodic payments were being made, subject to court orders, and that the object of the Barnet County Court order was to achieve the security of providing periodic payments to the child thereafter. [The appellant] submits that the express terms of the order provide for the lump sum to be paid to the applicant's solicitors, as agents for the said minor."
Having identified the argument, Lord Justice Waller nevertheless saw "very serious difficulty" in it and expressed himself as:
"extremely doubtful...
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SJ CCS 2717 2013
...its normal meaning. 24. Indeed, the present case is in all material respects essentially on all fours with AMS v Child Support Officer [1998] 1 FLR 955, where a father had made a capital payment to the mother of some £35,000, as a result of a consent order made under the Guardianship of Min......