Kambiz Karoonian v Child Maintenance and Enforcement Commission (CMEC)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Richards,Lord Justice Patten |
| Judgment Date | 30 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1379 |
| Docket Number | B4/2012/0117 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 October 2012 |
[2012] EWCA Civ 1379
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL & MANCHESTER FAMILY PROCEEDINGS COURT
DISTRICT JUDGE SHELVEY & DISTRICT JUDGE A.P. CARR
MA11P00482 & LV11P00603
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Richards
and
Lord Justice Patten
B4/2012/0117
B4/2012/0116
Richard Gordon QC and Matthew Stockwell (instructed by Forshaws Davies Ridgway LLP) for the appellants
James Eadie QC and Katherine Olley (instructed by Child Maintenance Litigation and Advice Team) for the respondent
Hearing dates : 30th April and 1st May 2012
Each of these appellants in these linked appeals is a non-resident parent ("NRP") for the purposes of the Child Support Act 1991 ("the Act"). Each of them was committed to prison, suspended on terms, for their wilfully refusing or culpably neglecting to make payments for Child Support maintenance. In the case of Christopher Gibbons he was committed to prison on 3rd August 2011 for a term of 21 days suspended on condition that he discharged his liability for child maintenance in the sum of £2,895.00 at the rate of £5 per week. In the case of Kambiz Karoonian, he was sentenced on 14th February 2011 to 42 days' imprisonment suspended on terms he discharge his liability in the sum of £10,959.21 at the rate of £1,000 per month. It is their case that the procedure adopted under s. 39A of the Act is not compliant with the Human Rights Act 1998. If this contention is well-founded, the teeth will be drawn from this valuable remedy of last resort. With the number of committal orders having increased from 230 in 2004/5 to 1050 in 2010/11, the impact on the ability of the Child Maintenance and Enforcement Commission ("CMEC" or "the Commission") effectively to collect arrears of child maintenance will be huge. So this appeal raises issues of some importance. Each of the appellants had individual complaints arising from the conduct of the respective proceedings against him.
The operation of the Child Support Act 1991
"This statute introduced a new child maintenance scheme. The scheme was intended to provide an effective, cheap and speedy means to enforce parental support obligations. Another aim, of considerable importance, was to reduce dependence on social security and the cost to the tax payer."
So said Lord Nicholls of Birkenhead in Farley v Secretary of State for Work and Pensions (No. 2) [2006] UK HL 31, [2006] 1 WLR 1817 at [1]. That obligation to provide child support is imposed on each parent under section 1 of the Act. For the purposes of the Act a NRP 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. Either parent may apply under section 4 for a "maintenance calculation", using the terminology since 3rd March 2003 when the Child Support, Pensions and Social Security Act 2000 came into effect. Under the old scheme a "maintenance assessment" was made. Where a maintenance calculation has been made the Commission, formerly the Child Support Agency, has the power to arrange for the collection of the child support maintenance payable in accordance with the calculation and for the enforcement of the obligation to pay that maintenance.
Liability is calculated under s. 11 and Schedule 1. If insufficient evidence has been provided by the NRP to make a "full maintenance assessment", then the Commission can make a default maintenance decision (formerly an interim maintenance assessment). That is what has happened in each of the cases before us. It is, however, important to note that any such decision may be revised under s. 16 or superseded under s. 17 or appealed under s. 20. Thus there is ample opportunity afforded to an NRP to have a correct assessment of his liability made by the Commission. Neither appellant availed himself of those opportunities although each of them still complain of the calculation/assessment made against him.
The Act then sets out a detailed and comprehensive code for collection and enforcement of payments due under the maintenance calculation assessments. The Commission, and not a parent with care, has the power to arrange for collection and to enforce payments of child maintenance (see s. 29). S. 31 provides for collection by means of a Deduction from Earnings Order; s. 32A provides for orders for regular deductions from accounts which can be frozen by orders made under s. 32G. Orders preventing avoidance can be made under s. 32L. These remedies lie in the hands of the Commission backed, in some circumstances, by penal sanctions. Thus far the Court is not involved.
The next raft of steps for enforcement does involve the court. The first step is for the Commission to obtain a Liability Order under s. 33. This section applies where a person who is liable to make payment of child support maintenance, called "the liable person", fails to make one or more of those payments and it appears to the Commission that it is inappropriate to make a Deduction from Earnings Order against him because, for example, he is not employed or although such an order has been made against him, it has proved ineffective as a means of securing that payments are made. The Commission may then apply to a Magistrates' Court for a liability order against the liable person and where the Commission so applies, the Magistrates' Court shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid. S. 33(4) is of some importance: the court shall not question the maintenance calculation under which the payments of child support maintenance fell to be made. Farley explained this, to cite from the head note:
"… that on the face of the language of s. 33(4), read in the context of the section as a whole, the Magistrates' Court has to proceed on the basis that the maintenance assessment in question was lawfully and properly made, and was precluded from questioning the assessment or any aspect of it; that the function of the Magistrates' Court was to check that the assessment related to the defendant brought before the court and that the payments in question had become payable and remained unpaid; that section 33(4) was not an ouster provision, but was part of a statutory scheme which allocated jurisdiction to determine the validity of an assessment to a court other than a Magistrates' Court; … that the 1991 Act, in both its original and amended form, provided effective means whereby an absent parent could challenge the Secretary of State's jurisdiction to make a maintenance assessment; and that, accordingly, there was no justification for reading s. 33 as requiring or permitting the Magistrates' Court to entertain such a challenge."
The liability order provides the gateway for further steps for enforcement. Armed with the liability order the Commission "may levy the appropriate amount by distress and sale of the liable person's goods" pursuant to s. 35. "he appropriate amount means the aggregate of (a) the amount in respect of which the liability order was made to the extent that it remains unpaid; and (b) an amount in respect of the charges connected with the distress. It should be noted that no order of the court is required to levy distress, the Child Support (Collection and Enforcement) Regulations 1992 setting out the conditions for levying distress on behalf of the Secretary of State. A person aggrieved by the levy of, or attempt to levy distress, may appeal to the Magistrates' Court. S. 36 provides the next means of enforcement. Where a liability order has been made against a person, the amount in respect of which the order was made, to the extent that it remains unpaid shall, if a county court so orders, be recoverable by means of a third party debt order or a charging order, as if it were payable under a county court order (s. 38 provides for comparable enforcement in Scotland.)
Now we get to the Exocet of enforcement, commitment to prison and disqualification from driving.
"39A Commitment to prison and disqualification from driving.
(1) Where the Commission has sought –
(a) in England and Wales to levy an amount by distress under this Act; or
(b) to recover an amount by virtue of s. 36 …,
and that amount, or any portion of it, remains unpaid it may apply to the court under this section.
(2) An application under this section is for whichever the court considers appropriate in all the circumstances of –
(a) the issue of a warrant committing the liable person to prison; or
(b) an order for him to be disqualified from holding or obtaining a driving licence.
(3) On any such application the court shall (in the presence of the liable person) inquire as to—
(a) whether he needs a driving licence to earn his living;
(b) his means; and
(c) whether there has been wilful refusal or culpable neglect on his part.
(4) The Commission may make representations to the court as to whether it thinks it more appropriate to commit the liable person to prison or to disqualify him from holding or obtaining a driving licence; and the liable person may reply to those representations.
…
(6) In this section "the court" means –
(a) in England and Wales, a magistrates' court …
40. Commitment to prison.
…...
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