R (Kehoe) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Latham,Lord Justice Keene |
| Judgment Date | 05 March 2004 |
| Neutral Citation | [2004] EWCA Civ 225 |
| Docket Number | Case No: C1/2003/1325 QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 05 March 2004 |
[2004] EWCA Civ 225
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Administrative Court
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Ward
Lord Justice Latham and
Lord Justice Keene
Case No: C1/2003/1325 QBACF
Robert Jay Q.C. and David Forsdick (instructed by Marilynne Morgan, Office of the Solicitor, Department of Work and Pensions) for the Appellant
Richard Drabble Q.C. and R. de Mello (instructed by Hodge, Jones & Allen) for the Respondent
Introduction
Mrs Mary Kehoe sought a declaration under s.4(2) of the Human Rights Act 1998 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 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."
She also sought a declaration that delay on the agency's part constituted a breach of her article 6 rights and she claimed damages under s.7 of the Human Rights Act 1998.
On 16 th May 2003 Wall J. dismissed the application for a declaration of incompatibility. He stayed giving further directions on her damages' claim until the resolution of this appeal for which he gave permission because:-
'The case raises points of considerable public importance on which there is no direct authority and this warrants the attention of the Court of Appeal."
It does indeed. The Secretary of State appeals against the judge's conclusion that Mrs Kehoe's inability personally to enforce arrears of maintenance arising under the maintenance assessment engaged her article 6 rights, contending that she does not have a civil right to a maintenance award enforceable by her. She cross-appeals against the judge's second conclusion that the scheme under the Child Support Act 1991 is article 6 compliant, contending that judicial review is an inadequate process for the adjudication of her dispute about the arrears and their collection.
That these questions give rise to matters of importance is obvious. The Child Support Agency's report for 2001/2002 revealed that during that year the agency managed over a million cases where parents had separated and used the agency. The evidence filed on behalf of the agency reveals that £2,500m. maintenance was outstanding of which nearly £2,000m. was probably incapable of collection for one reason or another. Recent reports of problems with the computer system may mean that the agency is still not functioning with the utmost efficiency.
The Child Support Agency scheme
To understand whether the mother's or child's civil rights are engaged it is necessary to examine first the position at common law, then the statutory developments, the ordinary enforcement procedures, the background to the introduction of the Child Support Agency and finally the provisions of the Act itself.
The position at common law
In Re C (A Minor) (Contribution Notice) [1994] 1 F.L.R. 111, 116 I said:-
'The strange state of our law is that there may be a so-called common law duty to maintain, but when one analyses what that duty is it seems effectively to have come to nothing. Like so many rights, the right extends only so far as the remedy to enforce it extends. … the common law has no remedy. The remedies to enforce a duty to maintain are statutory remedies which are variously laid down in numerous statutes."
I need to elaborate.
There is no doubt that a father was under a duty to maintain his legitimate children in the sense that he had to provide them with food, clothing, lodging and other necessaries. In a similar way a husband was under a common law duty to maintain his wife. As Morris Finer and O.R. McGregor trenchantly explain in The History of the Obligation to Maintain (1955) 18 M.L.R. 114, republished as Appendix 5 to the Finer Report on One Parent Families (Cmmd. 5629 (1974)) at para.25:-
'The judges based this principle upon the same doctrine of matrimonial symbiosis as they employed to deprive the wife of her property rights. Since the husband owed it to the community to sustain himself, he was, it was said, under the inevitable compulsion to sustain his other self, his wife, who was "bone of his bone, flesh of his flesh, and no man did ever hate his own flesh so far as not to preserve it."(See Manby v Scott (1663) 1 Mod 124, 128).
However while recognising the husband's obligation, the common law refused recognition of any corresponding right on the part of the wife to enforce the obligation directly against him. The law was conclusively so established in 1663, in Manby v Scott. The reasoning was that the marriage and its incidents were exclusively within the jurisdiction of the Ecclesiastical Courts, so that for the common law to have entertained a claim for maintenance by the wife against her husband would have amounted to an invasion of the spiritual jurisdiction. A wife could neither claim nor enforce any right to maintenance in the civil courts. The only assistance which the common law did give to her was that in certain circumstances it would support her in pledging her husband's credit so that, for example, if a wife was able to purchase household goods from a tradesman on credit, the husband might be held liable, at the suit of the tradesman, to discharge the debt. This was based on the notion of agency …"
The wife's agency of necessity extended to cover necessities for the children: see Bazeley v Forder (1868) L.R. 3 Q.B. 559.
That apart, the only avenue for enforcement of the duty to maintain was provided by the Poor Law statutes which gave the Justices of the Peace power to order the defaulting relative to maintain the "poore person", e.g. his child, by way of certain periodical sums in addition to the repayment of monies already expended by the overseer. As Finer and McGregor explain in para.52:-
'Thus was established the national system by which the public supported those who were unable to support themselves, but sought reimbursement by imposing a legal liability upon financially able relatives."
Its echoes reverberate on.
The National Assistance Act 1948 decreed that the existing Poor Law cease to have effect but, as I shall show, the so-called "liable relative's"obligation to reimburse the State has survived. Section 41 of the Matrimonial Proceedings and Property Act 1970 abolished the agency of necessity. For all practical purposes the common law duty to maintain is now no more than an historical footnote. If, however, the father's duty to maintain his legitimate children by providing them with food, clothing, lodging and other necessities ever gave rise to a correlative right, it was a right only to be maintained in that general sense: there was no right to maintenance in the sense of a right to periodical payments of a certain sum of money.
The statutory developments
The first important reform was the Matrimonial Causes Act 1857. This saw the end of the ecclesiastical court's power to award alimony, an award which could not be enforced in the common law courts. The 1857 Act introduced divorce to the new divorce courts. Section 35 allowed for such provision as appeared just and proper to be made with respect to custody, maintenance and education of children. Such orders could be enforced in the same or like manner as orders of the High Court of Chancery: s.52. In the divorce courts the powers are now conferred by the Matrimonial Causes Act 1973 and, in the case of foreign divorces, by Part 3 of the Matrimonial and Family Proceedings Act 1984. Jurisdiction was first given to the magistrates' court by the Matrimonial Causes Act 1878 which provided for weekly sums to be paid to the wife in cases where the husband had been convicted of aggravated assault. Much wider jurisdiction was given to the justices by the Summary Jurisdiction (Married Women) Act 1895. Its successor is the Domestic Proceedings and Magistrates' Court Act 1978. So far as children are concerned, the power to make maintenance orders and custody orders was conferred by the Guardianship of Infants Act 1925 and the current powers are to be found in Schedule 1 to the Children Act.
Thus in summary the power to make a "maintenance order", which as defined in s.8(11) of the 1991 Act, means "an order which requires the making or securing of periodical payments to or for the benefit of the child", is currently given by:-
a) Part II of the Matrimonial Causes Act 1973;
b) the Domestic Proceedings and Magistrates Court Act 1978;
c) Part III of the Matrimonial and Family Proceedings Act 1984;
Each of these statutes, which for convenience I shall call the "ordinary maintenance statutes", is listed in s.8(11) and each gives the relevant court a wide discretion as to the amount of the periodical payments order, the court's task very broadly being to balance needs against available resources.
The ordinary enforcement procedures
By "ordinary enforcement procedures", I mean the procedures available to enforce the orders made under the "ordinary maintenance statutes"above. The remedies in the High Court and County Court are those available for the enforcement of other orders as judgment debts...
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