R (Kehoe) v Secretary of State for Work and Pensions
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,BARONESS HALE OF RICHMOND,LORD WALKER OF GESTINGTHORPE,LORD HOPE OF CRAIGHEAD,LORD BROWN OF EATON-UNDER-HEYWOOD |
| Judgment Date | 14 July 2005 |
| Neutral Citation | [2005] UKHL 48 |
| Court | House of Lords |
| Date | 14 July 2005 |
ex parte Kehoe (FC)
[2005] UKHL 48
Appellate Committee
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
Appellants:
Richard Drabble QC
Rambert de Mello
(instructed by Hodge Jones & Allen)
Respondents:
Robert Jay QC
David Forsdick
(instructed by Solicitor to the Department for Work and Pensions)
My Lords,
The appellant (Mrs Kehoe) married Mr Kehoe in 1983. They had four children. The marriage broke down in May 1993, a petition for divorce was filed by Mrs Kehoe in December 1993 and Mr Kehoe left the family home at the beginning of 1994. The children remained with Mrs Kehoe, who invoked the services of the Child Support Agency ("the CSA") to obtain financial support for the upbringing of the children from Mr Kehoe. Over the next ten years significant sums of money for the support of the children were paid by Mr Kehoe in response to demands by the CSA, but the process of obtaining payment was protracted and difficult and substantial arrears built up from time to time. Mrs Kehoe strongly feels, perhaps rightly, that direct action by her against her former husband would have yielded more satisfactory results. She contends that, properly understood, the Child Support Act 1991 gives her a right to recover financial support for the children from Mr Kehoe and that the provisions of the Act purporting to deny her a power of direct enforcement against him are inconsistent with the right of access to a court guaranteed by article 6 of the European Convention on Human Rights. At issue in this appeal is the correctness of that contention.
The detailed facts of this case and the relevant statutory provisions have been clearly and comprehensively summarised by Wall J sitting in the Administrative Court at first instance ( [2003] EWHC 1021 (Admin), [2003] 2 FLR 578), by the Court of Appeal (Ward, Latham and Keene LJJ) [2004] EWCA Civ 225, [2004] QB 1378) and by my noble and learned friend Lord Hope of Craighead in his opinion. I gratefully adopt and need not repeat their accounts.
It is necessary first to examine whether Mrs Kehoe has a right to recover financial support for the maintenance of the children (which I shall call "child maintenance") from Mr Kehoe under the domestic law of England and Wales: Matthews v Ministry of Defence [2003] UKHL 4, [2003] 1 AC 1163, para 3. Under the law as it stood before 1991 it was clear that she had such a right under the Matrimonial Causes Act 1973, the Domestic Proceedings and Magistrates' Courts Act 1978, the Matrimonial and Family Proceedings Act 1984 and the Children Act 1989: see the judgment of Ward LJ, paras 11-16 and section 8(11) of the 1991 Act. But these procedures were judged by the government of the day to be unsatisfactory, for reasons summarised in para 2 of the Summary in a White Paper "Children Come First" vol I (Cm 1264) presented to Parliament in October 1990:
"2. 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."
It was proposed (Summary, para 6) to create a Child Support Agency which would have responsibilities for the assessment, review, collection and enforcement of maintenance payments, with powers to collect information on incomes and obligations, make a legally binding assessment of what was payable, determine methods of payment, monitor and (where necessary) collect maintenance and enforce payment where payments failed. Once the CSA was fully established, all claims for maintenance and reviews of maintenance would be handled by the CSA and not by the courts (Summary, para 8). The CSA was to have responsibility for the assessment, collection and enforcement of maintenance payments (chapter 2, para 2.2). It was regarded as important that, as far as possible, all the services relating to child maintenance provided to the public should be delivered by one single authority, the CSA, for which it should be a priority to secure payment to the caring parent as quickly and accurately as possible (chapter 5, para 5.2). It was to take appropriate enforcement action at an early date when payments were not made (chapter 5, para 5.3). The White Paper outlined the proposed means of enforcement, and stated (chapter 5, paras 5.20, 5.24):
"Taking enforcement action
5.20 If enforcement action is to be effective, it has to be taken quickly. It is therefore proposed that, when a parent first commissions the Child Support Agency to take enforcement action on her behalf, that parent should give a standing authority for the Agency to take action if and when full payment is not made on time. If the Agency were required to seek specific authority to act in every instance, then that could only cause additional delay.
5.24 The final stage, and very much a last resort, would be for the Agency to apply to the court for the court to take action. It is to be expected that the other measures, already described, will be more effective and it should be necessary to apply to the courts only very rarely. In England and Wales, the courts have the power to impose deferred prison sentences, where the debtor is committed to prison if the debt has not been paid in a specified period of time, or immediate prison sentences."
It was to be open to parents who were able to reach agreement to resolve the issue of child maintenance between themselves, whether or not in a sum assessed by the CSA, provided the caring parent was not in receipt of benefit from the state (chapter 5, para 5.26).
The Child Support Act 1991 gave effect to the scheme foreshadowed by the White Paper. It imposed a responsibility for maintaining a qualifying child on each parent (section 1(1)). It imposed a duty on the absent or non-resident parent to make payment of child maintenance in any periodical sums assessed (section 1(3)). It obliged the Secretary of State, on the application of either parent, to assess the child maintenance payable according to a statutory formula (sections 4, 11). It empowered the Secretary of State to take enforcement action if authorised to do so (sections 4, 6). It gave the Secretary of State significant powers (sections 14, 15, 30, 31, 33, 35, 36, 39A). While the role of the courts was preserved in relation to consensual settlements reached by parents not in receipt of state benefit (section 8), and there can be no doubt of the Secretary of State's duty to account to the caring parent for sums which he has received from the paying parent, subject to any appropriate deduction of benefit, the Act conferred no right of recovery or enforcement on a caring parent such as Mrs Kehoe against an absent or non-resident parent such as Mr Kehoe.
In Department of Social Security v Butler [1995] 1 WLR 1528 the issue was whether the court could grant a Mareva injunction to the Secretary of State against an absent or non-resident parent who had failed to make the payments assessed under the 1991 Act. Evans LJ, at pp 1531-1532 said:
"The following observations may be made on these statutory provisions. (1) The Act of 1991 together with regulations made under it provide a detailed and apparently comprehensive code for the collection of payments due under maintenance assessments and the enforcement of liability orders made on the application of the Secretary of State. (2) The only method provided for enforced collection before a liability order is made is a deduction from earnings order made by the Secretary of State himself under section 31. (3) Although section 1(3) provides for a duty which arises when the maintenance assessment is made, this duty is not expressed as a civil debt. Mr Crampin accepts that the duty could not be directly enforced by action in any civil court, or by any means other than as provided in the Act. (4) There is no provision for precautionary or Mareva-style relief."
Morritt LJ agreed at pp 1540-1541:
"As I have indicated the Secretary of State claims in respect of the statutory right correlative with the obligation expressed in section 1(3) of the Act of 1991. But that obligation and right is not a civil debt in any ordinary sense. First, the obligation may only be enforced by the Secretary of State and not by any other person who may be stated to be the payee in the maintenance assessment. Secondly, the Secretary of State's powers of enforcement do not enable him to sue for the arrears in the ordinary way. In the first instance his choice lies between a deduction of earnings order directed to the employer or an application to justices for a liability order. In my judgment, neither of those rights is such as would entitle this court, consistently with the decision in The Veracruz I [1992] 1 Lloyd's Rep. 353 to grant Mareva relief.
The Child Support Act 1991 introduced a wholly new framework for the assessment and collection of the sums required for the maintenance of children by their parents. There is no provision for the enforcement of any...
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