R (Kehoe) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WALL |
| Judgment Date | 16 May 2003 |
| Neutral Citation | [2003] EWHC 1021 (Admin) |
| Docket Number | Case No: CO/2349/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 May 2003 |
[2003] EWHC 1021 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(ADMINISTRATIVE COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Wall
Case No: CO/2349/2002
Mr. Richard Drabble QC and Mr. R de Mello (instructed by Hodge Jones & Allen) for the Claimant
Mr. Robert Jay QC and Mr. David Forsdick (instructed by the Solicitor to the Department for Work and Pensions) for the Respondent
Mr. Justice Wall:
Introduction
1. I am acutely aware of the fact that in Re MCA; HM Customs and Excise Commissioners and Long v. A and A (Long Intervening) (CA) [2003] 1 FLR 164 at 183–4, Schiemann LJ deprecated the tendency of judgments at first instance to be longer than strictly necessary for the proper resolution of the case. Whilst acknowledging the warning contained within this observation, and bearing in mind that it is my primary function in this case to identify the crucial legal points and to advance my reasons for deciding them as I have, it is my experience that when, as here, a judge at first instance hears skilled and detailed argument from leading counsel on both sides on a finely balanced point of public importance, it is necessary sometimes to set out the background material and the arguments in some detail in the judgment, in order both to attempt to do them justice and to explain why one argument has ultimately prevailed over another.
2. That is the case here. The point at issue is, in my view important and the arguments advanced by leading counsel on each side were both cogent and detailed. The point also requires an examination of a number of English authorities and cases decided by the European Court of Human Rights (EctHR). The result is that this judgment is longer than I had intended it to be, and no doubt longer than is strictly necessary for the bare reasoning which underlies my conclusions.
3. In an attempt to mitigate the judgment's length and to avoid unnecessary reading, I have divided it into identified sections, and provided an index. This will, I hope, enable the reader who wishes simply to know the outcome and my reasons for reaching it to avoid many of what I nonetheless regard as the necessary building blocks.
Index
4. This judgment is, accordingly, written under the following headings: -
Subject Paragraphs
The issues in outline 5 to 12
The three specific questions to be addressed 13 to 14
The policy behind the Child Support Act 15 to 17
The Scheme of the Child Support Act 18 to 27
The powers of enforcement contained in the Act 28 to 31
The essential facts 32 to 41
The Claimant's case on the facts 42 to 43
The first question: is Article 6 engaged?:
Arguments advanced on the Claimant's behalf 44 to 61
Arguments advanced on behalf of the Secretary of State 62 to 78
Discussion and Analysis:
Is Article 6 engaged at all in this case? 79 to 99
The second question: is the Scheme under the 1991 Act
HRA 1998 compliant on Alconbury principles?
The case for the Secretary of State 100 to 112 Does delay in enforcement of itself infringe Article 6? 113 to 117 The case for the Claimant 118 to 119 Discussion and Analysis
Is the Scheme under the 1991 Act HRA 1998
compliant on Alconbury principles? 120 to 137
Are my conclusions inconsistent with previous case law
relating to the Agency and the Act? 138 to 144
What remedies does the claimant have? 145 to 150
The result 151
The Issues in Outline
5. Mrs. Mary Kehoe (the claimant) seeks a declaration under section 4(2) of the Human Rights Act 1998 ( HRA 1998) in the following terms, namely that: -
the provisions of the Child Support Act 1991 (the 1991 Act) are incompatible with a convention right (namely the right of access to a court under Article 6) because they deny a parent with care of children (PWC) access to any court (in her own right or alternatively on behalf of the children) in connection with disputes as to her (or their) civil rights consisting of disputes as to whether the absent parent has paid and/or ought to pay the sums due under a maintenance assessment under the 1991 Act; or as to the manner in which the obligations under the maintenance assessment should be enforced”.
6. HRA 1998 came into force on 2 October 2000. Nothing turns on the terms of section 4, which gives me the jurisdiction to make the declaration sought, and which I need not set out. The terms of Article 6 of the European Convention on Human Rights (the Convention) are, of course, well known, and for the purposes of this judgment, it is only necessary to set out the first sentence: -
In the determination of his civil rights and obligations ….every one is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ….
7. As will be apparent from the statement of the relief sought in paragraph 5, the claimant does not seek to argue that the entire scheme for the assessment and collection of child maintenance contained within the 1991 Act and the Regulations issued pursuant to it is not HRA 1998 compliant. In particular, she makes no complaint about the framework within which assessments for child maintenance against absent parents (APs) are made.
8. The complaint, in a nutshell, is limited to the fact that when it comes to the enforcement of maintenance due from the AP, the PWC is precluded by the scheme from taking those proceedings upon herself, and is denied access to the court in her own right or acting on behalf of her children. The PWC is thus dependent upon the decisions and actions taken in relation to enforcement by the Secretary of State acting through the medium of the Child Support Agency (the Agency). The PWC is not a party to the enforcement proceedings; she has no status in them; she cannot take or influence decisions relating to them; and if the outcome is that the Agency fails to enforce the assessment and collect the money due under it, the PWC is effectively bound by that outcome. This, she submits, restricts her access to the court in “such a way or to such an extent that the very essence of the right is impaired”, the phrase used by the ECtHR in Ashingdane v. United Kingdom (1985) EHRR 528 at 546/7 paragraph 57
9. The Claimant has a second limb to her argument. On the premise that her rights under Article 6 are engaged, she seeks to bring an action under HRA 1998 section 7 based on what she submits is the Agency's undue delay after 2 October 2000 in taking steps to enforce the child maintenance assessments obtained in this case. The Claimant invites me to make a declaration that this delay on the Agency's part constitutes a breach of her Article 6 rights, and to give directions designed to enable the amount of damages to be assessed.
10. Unsurprisingly, the submission of the Secretary of State is that the 1991 Act is HRA 1998 compliant. On his behalf, counsel submit that Article 6 is not engaged; that the 1991 Act and the attendant regulations comprise an overall statutory scheme designed to facilitate the proper assessment and efficient collection of child maintenance, and to ensure that APs fulfil their proper obligations to their children. The 1991 Act, moreover, provides the Agency with a full spectrum of powers in relation to enforcement, several being wider than those available to a litigant attempting to enforce a court order in his or her own right.
11. In the alternative, counsel for the Secretary of State submit that if, contrary to their primary submission, Article 6 is engaged by the exclusion of PWCs from the enforcement process, the 1991 Act is nonetheless HRA compliant on what may loosely be called Alconbury lines: —see R (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 ( Alconbury) discussed in detail in the section headed Is the Scheme under the 1991 Act HRA 1998 compliant on Alconbury principles? —see paragraphs 120 to 137 below. The PWC, they submit, does have access to a court (the Administrative Court) which has “full powers” by way of judicial review and other means to provide an appropriate remedy.
12. As to delay post 2 October 2000, counsel for the Secretary of State accepted that, in principle, if the claimant's article 6 rights were engaged, unreasonable and unwarranted delays might amount to a breach of those rights where the effect of the delay was effectively to thwart their exercise. They submitted, however, that the chronology of the case did not demonstrate any unwarranted delay on the part of the Secretary of State post 2 October 2000 such as to constitute an unreasonable exercise of his discretions under the 1991 Act and/or an effective denial of the Claimant's rights.
The three specific questions to be addressed
13. In deciding whether the claimant is entitled to the relief she seeks, there are, it seems to me, three essential questions which I must address. They are:
(1) is Article 6 engaged in this case?
(2) if it is engaged, is the scheme under the 1991 Act nonetheless HRA 1998 compliant under Alconbury principles?
(3) dependent upon the answers to (1) and (2) what remedies, if any, does the claimant have?
14. The arguments on both sides were skilfully displayed, and the issues they raise are of considerable importance for the day to day operation of the Agency. I propose, accordingly, to set the arguments out in some detail. Firstly, however, I must deal with the policy behind, and the scheme contained within, the 1991 Act.
The policy...
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