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R v DWP ex parte Kehoe [2005] UKHL 48

Whether Child Support Act 1991, s 8, in denying caring parents the right directly to recover or enforce a claim to child maintenance, was compatible with the right of access to a court under art 6(1) of the European Convention.

R v DWP ex parte Kehoe [2005] UKHL 48

House of Lords: Lord Bingham, Lord Hope, Lord Walker, Baroness Hale & Lord Brown (14 July 2005)

Summary
Whether Child Support Act 1991, s 8, in denying caring parents the right directly to recover or enforce a claim to child maintenance, was compatible with the right of access to a court under art 6(1) of the European Convention.

Background
In December 1993, the appellant mother of four ('Mrs K') filed a petition for divorce from her husband, the children's father ('Mr K'), and applied to the Child Support Agency ('the Agency') under Child Support Act 1991 ('CSA 1991'), s 4(1), for a maintenance assessment.

After a delay, a full maintenance assessment was eventually made, and arrears of maintenance began to accumulate. The agency was granted a liability order by the magistrates' court to cover arrears between May 1995 and September 2000. Bailiffs attempted to levy distress, but failed. In October 2001 a deduction from earnings order was made, followed in February 2002 by a further order for an increased amount. As Mr K was a director of the company on which the orders were served, these steps were unsuccessful. After Mrs K moved to Spain permanently, the Agency closed her file with effect from September 2002. Arrears remained due to Mrs K which the Agency continued to seek to enforce against Mr K.

Arguing that CSA 1991 gave her a right to recover financial support for the children from Mr K, Mrs K sought a declaration under Human Rights Act 1998 ('HRA 1998'), s 4(2), that CSA 1991, s 8, in purporting to deny her a power of direct enforcement against Mr K was incompatible with her right of access to a court under art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ('the Convention'). She also sought a declaration that her Convention rights were breached by the Agency's unreasonable delay in taking enforcement action. She claimed damages under HRA 1998, ss 7 and 8, with respect to the Agency's acts and failures to act.

Judgment
Held, dismissing the appeal, that CSA 1991 did not confer any right on a caring parent to recover or enforce a claim to child maintenance against an absent or non-resident parent. This was not an omission, but was the essence of the new scheme. The former right to recover maintenance had been removed, and had been vested in the Agency. CSA 1991, s 4(2), made it clear that enforcement of the obligation to pay child support maintenance was at the discretion of the Secretary of State, not at the discretion of the person who applied for its enforcement.

The function of art 6 of the Convention was to guarantee procedural safeguards in the exercise of rights accorded by national law, and not ordinarily to require that particular substantive rights be accorded by national law. If national law had conferred on Mrs K a right to recover child maintenance from Mr K, art 6 would have guaranteed her access to an impartial and independent court. But art 6 did not require that she have such a right.

As art 6(1) was not engaged, the Agency could not be said to have acted unlawfully within the meaning of HRA 1998, s 7(1).

Per curiam: If the Agency were to refuse to enforce a claim because it made some error of law Mrs K could take proceedings by way of judicial review, and in that way could hope to influence the enforcement process.

Read the full text of the judgment here