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Law v Inostroza Ahumada [2010] EWCA Civ 1145

Appeal in child maintenance case. Court of Appeal held that the Circuit Judge hearing an application for a declaration under s.55A Family Law Act 1986. had no jurisdiction to stay enforcement action by CMEC.

This Court of Appeal case concerns the extent to which the Circuit Judge sitting in the County Court had jurisdiction to stay enforcement of child maintenance liabilities when the only proceedings before him were section 55A Family Law Act 1986 proceedings.  The Court of Appeal held that there was no jurisdiction.

The litigation concerns the Child Maintenance and Enforcement Commission ("CMEC") and long standing proceedings between the commission and Mr. Law in respect of a child who was born in 1989.

Mr. Law asserted through the proceedings that he was not the child's father but at a hearing before Peterborough Justices it was found that he was his father.  The decision was not appealed and a liability order was made.  Mr. Law sought to appeal the liability order leading eventually to proceedings being brought by him under section 55A seeking a declaration that Mr. Law is not the father.

In the County Court the matter was listed before HHJ Yelton and the hearing was convened to consider a submission by the Commission that the petition for a section 55A declaration should be struck out on the grounds of issue estoppels and/or an abuse of process.

HHJ Yelton adjourned the determination of the strike out application and issued a direction for a DNA test under section 20 of the Family Law Reform Act 1969.  However, of his own motion, the judge made an order to the effect that enforcement of Mr Law's child maintenance liabilities be stayed until the next hearing.  CMEC objected on the ground that HHJ Yelton had no jurisdiction to make that order.  HHJ Yelton simply disagreed with Mr Rowell and stuck to his guns.

It was held by the Court of Appeal that CMEC were correct and the judge had been wrong to disagree and to maintain that he had a general jurisdiction to control not only the proceedings before him under the Family Law Act but also the proceedings brought under different statutory provisions to enforce arrears.  Quite simply, he had no power to make the order restraining the Commission.  The section 55 proceedings are Family Law proceedings brought in the county court under an express statutory jurisdiction, and the only available relief is a declaration on the issue of parenthood.

Summary by Richard Tambling, barrister, 1 Garden Court _________________________________

Case No: B4/2010/1747
Neutral Citation Number: [2010] EWCA Civ 1145
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(HIS HONOUR JUDGE YELTON)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 6th October 2010

Before:
LORD JUSTICE THORPE
LORD JUSTICE STANLEY BURNTON
and
MR JUSTICE TOMLINSON

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MR MARK JOHN LAW 
Appellant

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INOSTROZA AHUMUDA & ORS 
Respondents

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(DAR Transcript of
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Mr George Rowell (instructed by Child Maintenance & Enforcement Commission) appeared on behalf of the Appellant.

The Respondents did not attend and were not represented.

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Judgment

(As Approved by the Court)

Crown Copyright©

Lord Justice Thorpe:
1. There has been a lot of litigation between the Child Support Agency (now the Child Maintenance and Enforcement Commission) and Mr Mark Law concerning his liability to support a child known as Matias Law, born in 1989.  The Agency (now the Commission) has been seeking to extract maintenance money for the benefit of Matias's mother, Griselda Ahumuda.  The first set of enforcement proceedings concerned an assessment of £29,356.08 for the period March 1999 to September 2004.  The Agency obtained an enforcement order in 2005.  Mr Law failed to pay, so in 2007 the Commission obtained a charging order over his property.  Mr Law did not appeal the assessment, the liability order or the charging order.

2. The second enforcement proceedings concerned an unpaid assessment in the sum of £12,019.13 for the period 14 March 2006 to 14 July 2008.  Against this assessment Mr Law appealed under section 20 of the Child Support Act 1999, asserting that he was not Matias's father.  The appeal was heard on 30 April 2008 by the Peterborough Justices.  They heard oral evidence and noted that Matias had refused to undergo a DNA test, and found that Mr Law was indeed Matias's father and dismissed the appeal.  Mr Law did not appeal that decision and failed to pay the sum of £12,000-odd, leading to a liability order granted by the justices on 24 June. 

3. Mr Law then appealed the liability order in the Bristol County Court.  It seems that he had instructed Mr David Burrows, a Bristol solicitor with a lot of expertise in this field, and that is how the proceedings were launched in that city.  On 30 October 2009 HHJ Rutherford set aside the liability order on a technicality and remitted the matter to the Peterborough Justices, who, on 3 March 2010, brought in a reduced liability order in the sum of £7,753.33.

4. On 22 July 2009 a third and completely separate set of proceedings were launched when Mr Burrows sought a declaration under section 55A of the Family Law Act 1986 that Mr Law is not the father of Matias.  The Commission were joined as intervener by HHJ Rutherford, and later, in December 2009, when the matter returned to him again, he transferred the case to the Cambridge County Court for the convenience of the parties.  To that order is a recital of an undertaking from the Commission that in the interim they would not enforce any liability order, save to the extent of obtaining a second charging over Mr Law's home.  That undertaking was recorded because all present acknowledged that the county court did not have jurisdiction to make any order concerning enforcement of the liability for child maintenance.

5. In the Cambridge County Court the matter was listed before HHJ Yelton on 29 June 2010.  That hearing was convened to consider a submission by the Commission that the petition for a section 55A declaration should be struck out on the grounds of issue estoppels and/or an abuse of process.  It seems the Peterborough Justices had already determined the issue alternatively, and there was no new evidence or any indication that Matias had changed his mind about submitting to a blood test.

6. HHJ Yelton adjourned the determination of the strike out application and issued a direction for a DNA test under section 20 of the Family Law Reform Act 1969.  Then, of his own motion, he made an order to the effect that enforcement of Mr Law's child maintenance liabilities by the Commission be stayed until the next hearing on 19 October 2010.  Mr Rowell, who appeared below as he does before us, objected on the ground that HHJ Yelton had no jurisdiction to make that order.  HHJ Yelton simply disagreed with Mr Rowell and stuck to his guns. 

7. Accordingly, there was an application to this court for permission to appeal, which was considered by Wilson LJ on 10 September 2010.  He granted permission and interim relief, allowing the Commission only to take the steps to obtain a further charging order, the position that had been adopted by the Commission before HHJ Rutherford.

8. On 21 September Mr Law communicated with the Civil Appeals Office, saying that he did not wish to attend the appeal fixed for 6 October by Wilson LJ; he did not wish to file a skeleton argument; he was not happy with permission being granted, and refused to attend this hearing, saying that he did not have time to do so.  Accordingly, we have only Mr Rowell; neither Matias nor either of his parents is before the court.  Mr Rowell has, however, informed us that Matias still holds to his refusal to submit to a blood test.  So the matter goes back before HHJ Yelton on 19 October. 

9. This hearing this morning was set down for three hours, but it does look to me something of a sledgehammer to crush a tiny nut.  Plainly, in my opinion, Mr Rowell was correct in his submission to the judge below, and the judge was wrong to disagree and to maintain that he had a general jurisdiction to control not only the proceedings before him under the Family Law Act but also the proceedings brought under different statutory provisions to enforce arrears.  Quite simply, he had no power to make the order restraining the Commission.  The section 55 proceedings are Family Law proceedings brought in the county court under an express statutory jurisdiction, and the only available relief is a declaration on the issue of parenthood.

10. The impugned order was clearly made outside the county court's jurisdiction, because it did not relate to any current course of action in issue in the section 55A proceedings and was not ancillary to the relief sought in those proceedings.  The county court was not seized of any proceedings under the statutory code for enforcement, and it had no jurisdiction to issue any stay.  Finally, Mr Rowell submits, it seems to me correctly, that the impugned order is barred by section 21(1)(a) of the Crown Proceedings Act 1947, which states that, in proceedings against the Crown, any relief that might, in proceedings between subjects, be granted by way of injunction shall not be so granted against the Crown. 

11. So Mr Rowell is, in my judgment, entitled to succeed on any of his three grounds, and the appeal clearly succeeds.  The order made by the judge is set aside; but to cover the period between 6 October and 19 October, I take it Mr Rowell is going to proffer an undertaking to this court not to take any enforcement proceedings beyond seeking a further charging order against Mr Law's property.

12. In passing, I am unable to understand why the judge in the county court has progressed firmly towards a factual investigation founded on DNA blood testing, which seems to suggest that there is no merit in the res judicata point raised by the Commission.  On the face of it, the res judicata argument seems persuasive, and I would have thought it should have been first determined before any factual investigation was set in train.

Lord Justice Tomlinson:
13.  I agree.

Lord Justice Stanley Burnton:
14. I also agree.

Order:  Application granted.