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Court of Appeal finds CMEC breaches fathers' Article 6 rights

CMEC’s enforcement procedures are ‘obnoxious’, says Lord Justice Ward

Stephen Lawson, a child support specialist and partner at QualitySolicitors Forshaws Davies Ridgway, and Liverpool barrister Matthew Stockwell, from St Johns Buildings, worked with Richard Gordon QC of Brick Court Chambers to bring two test cases before the Court of Appeal.

The heart of the cases, reported as Karoonian v CMEC; Gibbons v CMEC [2012] EWCA Civ 1379, related to whether or not the procedure routinely adopted by the Child Maintenance & Enforcement Commission was compliant with Article 6 of the European Convention on Human Rights. It was decided that it did not.

The judgment of the Court, comprising Ward, Richards and Patten LJJ, directs CMEC to review "as a matter of urgency" its current legal procedures for making applications to send parents to prison when they fail to keep up maintenance payments.

In the judgement, Lord Justice Ward condemned the lack of robustness and confusion in the current legal practices as "obnoxious" and "unreasonable" and stated: "the procedures adopted do not comply with the rights to a fair trial and were flawed." The ruling also recommends that suspended sentences should now be limited to a maximum of two years.

This means that the appellant fathers, Mr Kambiz Karoonian and Mr Christopher Gibbons, have had the threat of committal to prison quashed, although they both still owe child maintenance arrears.

Stephen Lawson said:

"I hope this ruling will now end the unjust practice of non-resident parents, usually fathers, being jailed or threatened with jail without the opportunity to defend themselves properly.

"Parents may have heard nothing from the CSA for many years and then suddenly out of the blue they receive a demand for thousands of pounds. Many are simply unable to pay and are met with an application to put them in prison or disqualify them from driving.

"In another recent case, a father was arrested, taken to court and sent to prison all on the same day, with no opportunity to challenge the evidence against him. The CSA has been sending summons notices through the post, often to an old address, so this has led to some parents being tracked down and arrested, knowing nothing of the court proceedings. And the onus has been on the parent to prove why he shouldn't be sent to prison, which reversed the traditional burden of proof.

"The ruling means the burden of proof, the serving of summons notices and disclosure of documents will now be improved to a level similar to criminal proceedings – which is only fair if people are threatened with the ultimate sanction of imprisonment."

The appeal centred on the case of two fathers. Mr Gibbons was appealing against a prison sentence of 21 days, suspended for 11 years, for non- payment of £2,895, issued on 3 August 2011, and Mr Karoonian was appealing against a suspended prison sentence of 42 days for non-payment of £10,959.21 – an amount he disputes.

The Department of Work and Pensions may apply for permission to appeal to the Supreme Court.

You can read the judgment and the summary by Victoria Flowers, barrister, of Filed Court Chambers, here.