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In a Dorney-Kingdom of their own: Segal orders examined

Byron James, barrister, 14 Gray’s Inn Square, considers the circumstances in which Segal Orders can be made.

Byron James
, barrister, 14 Gray's Inn Square

There once was a man who gave everything up, everything he owned, loved and fought for. On the way out, instead of waving goodbye he just closed his eyes and tried to focus his mind on one moment of pure recollection, shutting the present entirely out from the past. Maybe he did; maybe he didn't; he did smile though, as one often does through pain, which he felt in equal measure to the pleasure. Some say his smile was actually the moment he realised he was letting everything go and some say it was actually the moment he realised that he did not mind at all.  How differently family lawyers think, where we are concerned with the not letting go, fighting over the material remains in the aftermath of a relationship end. Perhaps too this permeates to legal principle; learned behaviour from our clients, emotionally over identifying with the inanimate and ephemeral, over comforted by that which is familiar. Lawyers, like people, want safety and security, something that can sit there without challenge, general principles like fairness and welfare being old friends. Sometimes the very basis upon which we come to meet something familiar was wrong all along, or has come to be misunderstood; and so we turn to Segal Orders and how they are used in courts throughout the country. 

In relation to Segal Orders, the Court of Appeal in (Dorney-Kingdom v Dorney-Kingdom [2000] 2 FLR 855) concluded that the court only had jurisdiction to make an order for periodical payments for children where the parties consent. [in accordance with section 8(5) of the Child Support Act 1991]'. This follows from the Child Support Act 1991 which deprived the court of 'jurisdiction to make a discretionary determination of the extent of a [parent]'s liability to maintenance children of marriages which have been dissolved' (para 12), Parliament's intention being that such jurisdiction be conferred upon the CSA.
It is therefore ostensibly odd that in a case in which the section 8(5)] provision…was not exercised' it was also held that child maintenance orders made by the court at first instance and first appeal were considered to be 'just within the bounds of legitimacy' (para 15).

The explanation for this apparent contradiction comes from a practice introduced by District Judge Segal in the Principal Registry of the Family Division, described by the Court of Appeal in Dorney Kingdom as 'an order for spousal maintenance….that incorporates some of the costs of support the children as part of a global order….an important ingredient is that the overall sum will reduce pro tanto from the date upon which the CSA brings an assessment' (para 14). The purpose of this 'Segal order' is given as 'obviously' for the scenario in which 'the determination of the ancillary relief claims come at a time when the CSA has yet to complete its assessment of the liability'.

Subsequently, in an article published in Family Law Journal, District Judge Segal confirmed that a Segal order would not be applicable in the majority of cases because the CSA would have jurisdiction but that it could apply as a short term order prior to a CSA assessment early in the proceedings.

Therefore, the Court of Appeal and District Judge Segal both agree that the operation of a 'Segal order' is only as a short term measure so that the children do not go 'unmaintained' whilst the CSA begin/complete their assessment. This is clearly outside the boundaries of statute and not envisaged by Parliament in the drafting of the Child Support Act 1991, as acknowledged by the Court of Appeal, who held that the 'legitimacy' of Segal orders derives from it not being 'a sort of ouster of or challenge to the jurisdiction of the agency, but merely a holding until such time as the Agency can carry out its function' (para 15). The syllogic sequitur of this therefore is that any Segal order which purports to continue beyond the date of an assessment by the CSA would not be legitimate.

To this point, Segal orders appear simple. As the Court of Appeal state '[it is] very convenient for a district judge to have form of order which will carry the parent with primary care over that interim pending the Agency's determination' (para 14). The emphasis therefore is upon giving the family court, who are so often seeking to protect and serve the welfare of children, the ability to allow them not to be without funds due to the inherent delays in the government's chosen 'administrative agency'.

There are then complexities. First of all the Court of Appeal held that 'it seems…absolutely crucial that if legitimacy is to be preserved, there must be a substantial ingredient of spousal support in the Segal order'. The children who therefore go unmaintained because of administrative delay are therefore those whose father's do not earn over the CSA maximum of £106,000 per annum and do not earn enough to pay their former Wife spousal support. Perhaps, you might argue, those children the most in need. The reasoning being that 'if there is a determination that the primary carer has no entitlement to periodical payments on her own account any form of order, that is not an agreed order, plainly circumvents the statutory prohibition' (para 15).

One might be forgiven for asking what the relevance of a delay in the children receiving maintenance, and the Court assuming a 'holding role' in that regard, has to do with the amount of spousal maintenance paid by to the wife. Either the Court is entitled to assume a holding role in respect of child maintenance, because such an interim role does not challenge the jurisdiction of the Agency, or it does not.

In further explanation of the added test that the primary carer must also be in receipt of spousal maintenance as a substantial element of the global maintenance as a whole, the Court of Appeal stated, 'the reality is that the only order for periodical payments that can properly be made for the wife is a nominal order. There is no order that this court can make in respect of periodical payments to the children, absent agreement, and therefore any assessment of the father's continuing liability to maintain the children must be the subject of assessment by the agency' (para 15). This is simply a restatement of the principle that the Court of Appeal had referred to earlier (para 13) and decided would not prevent an order being made 'as a holding position' because the jurisdiction of the CSA essentially begins from the date of the assessment. It is therefore no explanation at all for why either an interim child maintenance element of spousal maintenance is appropriate and nor why a substantial element of the maintenance as spousal is required.

One could argue that given the authority for any order at all comes from section 23(1)(a) of the Matrimonial Causes Act 1973, which is referable to spousal periodical payments, such an order must ostensibly be spousal rather than for any other purpose; the delineation between child and spousal payments being made clear by Parliament. This would however militate against any form of child maintenance being included in such an order, whether as a holding position or not. There is also no qualitative difference stated in the Matrimonial Causes Act 1973 between different quantum of maintenance; a nominal order is not given higher preference than a substantive order, a very high substantive order is not given higher preference than a low substantive order. The effect of the Court of Appeal's assessment however is to create a qualitative difference in spousal maintenance dependent upon the amounts paid therein; the proportion (and consequently the amount) of spousal maintenance is stated as being directly referable to the efficacy of whether an element of child maintenance by way of a Segal order is 'legitimate'; a qualification not envisaged in statute.

There is perhaps scope for a wife to argue, which was not directly advanced in Dorney-Kingdom, that her needs increase in accordance with any deficit in the children's needs because she will have to meet any shortfall from her own pocket. This is easily refuted however as an obvious attempt to oust the jurisdiction of the CSA. If it is expressly done by way of a stated case on needs it should be prevented; if a more discreet attempt is made, it too should be thwarted. It would be nothing short of an attempt to undermine and blur the delineation imperative between spousal and child maintenance. 

The other aspect of Segal orders which presents difficulty is their lifetime. Given the clear guidance of both the Court of Appeal and DJ Segal, it would appear obvious that the moment the CSA has jurisdiction for child maintenance, the Segal order must terminate, as it loses thereon its legitimacy. When one considers the drafting of the orders at first instance (para 5) and first appeal (para 8) in Dorney-Kingdom, no provision is included for the Segal order to simply cease upon the date of the CSA assessment, rather, both include the phrase 'such sums to be reduced pro tanto by any sums payable as child support maintenance in respect of the children pursuant to the CSA 1991'. This is in effect endorsed by the Court of Appeal (para 14) wherein the effect of a Segal order is described as 'the overall sum will reduce pro tanto from the date the agency brings an assessment'. Whether the order reduces 'pro tanto' or not, following the logic of the Court of Appeal at paras 12-15, the Court has no jurisdiction at all to make any such order. This particular point, it is suggested, has led to some confusion in practice whereby it is thought that the Court can make a Segal order to control the overall global sum of maintenance, irrespective of the quantum of child maintenance assessed by the CSA. The mistaken belief being that if a District Judge assesses the overall needs of a Wife and children as, say £200, with £100 to the Wife and £100 to the children, if the same District Judge has little confidence in the CSA and simply records in the order that the maintenance payable will reduce pound for pound for every pound paid to the CSA without including an automatic variation to the overall sum, as a means of guarding against double payment, then the Court has determined the amount of child maintenance not the CSA. The CSA in such a scenario are just arranging for a portion of the Court assessed amount to be collected by them. Of course, even an order which does automatically vary the overall sum, as seems to be endorsed by the Court of Appeal in Dorney-Kingdom must be wrong because, from the date of assessment, the Court has no jurisdiction to make any order at all.

The correct use of a Segal order is therefore only as a short term, interim measure that must terminate on the date of a CSA assessment. Any order which attempts to control the quantum of child maintenance or even purports to exist beyond the point of assessment, without the consent of the parties, should be considered invalid and incapable of enforcement.