QUEENS BENCH DIVISION
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF ANTHONY PLUMB
|- and -
|THE SECRETARY OF STATE FOR WORK AND PENSIONS
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR T WARD & MR I BURNETT (instructed by Office of the Solicitor Department of Work and Pensions) for the Defendant
Crown Copyright ©
HHJ ALAN WILKIE QC:
(1) whether Regulation 13 of the Child Support (Maintenance Assessment and Special Care) Regulations 1992 is ultra vires the Child Support Act 1991, by application of the principles set out in R v IAT ex parte Saleem and Raymond v Honey; and
(2) Whether Regulation 13 (above) is incompatible with Article 8 of the ECHR.
(1) staying contact every other weekend from Saturday 5pm to Monday 9am;
(2) staying contact during half-term holidays and over the Christmas periods, the precise details of which are not in evidence;
(3) weekly visiting contact on Wednesdays of 4 hours from after school until 7.30pm;
(4) similar contact on Fridays every other week being the weekends when she was not staying with him;
(5) Alternate Sundays non-staying contact of 10 hours.
THE STATUTORY FRAMEWORK
The Article 8 Challenge
"There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country for the prevention of disorder or crime for the protection of health or morals or for the protection of rights and freedoms of others".
JUDGE WILKIE: For the reasons given in the draft judgment which has been distributed to the parties, the application for judicial review fails and I dismiss the application. PRIVATE
MR DE MELLO: Both my learned friends and I have not had the benefit of seeing the draft judgment. So I cannot tell you whether I want to ask for permission.
JUDGE WILKIE: I will give you a couple of minutes just to look through. I think probably starting at page 11 is where you might want to....
MR DE MELLO: Thank you. (Pause)
My Lord, I have quickly read through the pertinent parts of your Lordship's judgment, and given your conclusions on paragraph 16 - sorry is it paragraph 16. There are two 16s. The first paragraph 16 on page 11, I see that it might be difficult to persuade your Lordship to grant me permission to appeal because your Lordship has made a finding of fact. But, nevertheless, with some audacity, I do ask for permission.
JUDGE WILKIE: I found your argument as a matter of law persuasive, but as a matter of fact unfortunately you did not suceed.
MR DE MELLO: I see that, but nevertheless I safeguard my client's position by asking for permission to appeal for the same reasons advanced by Mr Blake, and I need not rehearse those arguments. I also see your Lordship has not touched on Article 1 of the First Protocol, but I think your Lordship----
JUDGE WILKIE: Sorry, well I dealt with that in paragraph 3....
MR DE MELLO: I see.
JUDGE WILKIE: ....of the judgment.
MR DE MELLO: I was going to say the outcome would be the same, given your findings in the first paragraph 16 on page 11.
JUDGE WILKIE: Yes.
MR DE MELLO: But I need say nothing else. That is my submission.
JUDGE WILKIE: Thank you.
Ultimately my decision was one based on fact, and therefore I refuse you leave.
MR DE MELLO: The second thing is the claimant has the benefit of a legal aid certificate, now called a public funding certificate. May I have the necessary order for taxation?
JUDGE WILKIE: Certainly, yes.
MR DE MELLO: I am most grateful.