Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1994] NISSCSC CSC 1-94 (8 July 1994)

 


Decision No: CSC 1/94

THE CHILD SUPPORT (NORTHERN IRELAND) ORDER 1991 CHILD SUPPORT Appeal to the Child Support Commissioner on a question of law from the decision of Newry Child Support Appeal Tribunal dated 2 November 1993 DECISION OF THE CHILD SUPPORT COMMISSIONER
1. This is an appeal by the Child Support Officer against the decision of Newry Child Support Appeal Tribunal, whereby they held that they did not have jurisdiction to hear an appeal by the absent parent against the refusal of the Child Support Officer to review the maintenance assessment in the case.
2. Briefly, the history of events is that, following an application for child support maintenance by the parent with care, the alleged absent parent, Mr R..., completed an enquiry form in which he acknowledged that he was the parent of the child in question. A maintenance assessment having been duly made, Mr R... applied for a review as provided for by article 20 of the Child Support (Northern Ireland) Order 1991, (the Order). This is a form of internal appeal and is commonly referred to as a "second tier review". However, Mr R... failed to provide any additional information, and the Child Support Officer accordingly refused the application for a review. This refusal gave Mr R... a right of appeal to a Child Support Appeal Tribunal under article 22 of the Order, and following the exercise of that right the matter came before the Appeal Tribunal on 2 November 1993. At the outset of the hearing Mr R... was asked if he was the father of the child, and it was in response to that question that he first indicated that paternity might be disputed. In the light of this information the Tribunal held that they were unable to deal with the case; which they referred back to the Child Support Agency for reconsideration. Their reasons for decision were recorded as follows:-

"Had this information received today, about the doubt of Mr R... being the child's parent, been received by the Child Support Agency earlier, under Section 27 of the Child Support (NI) Order 1991, the Child Support Officer would not have made a maintenance assessment (as his case did not fall within the exceptions listed).

In these circumstances we feel that the panel does not have jurisdiction to hear this appeal."

3. The grounds of the Child Support Officer's appeal to the Commissioner are that the Tribunal misconstrued article 27 of the Order in its application to a valid maintenance assessment. Attention is drawn to the Child Support Appeal (Jurisdiction of Courts) Order (Northern Ireland) 1993, (the Jurisdiction of Courts Order), paragraph 2 of which states:-

"Parentage Appeals

2. An appeal under article 22 of the Order shall be made to a court of summary jurisdiction instead of to a child support appeal tribunal where:-

(a) the decision against which the appeal is to be brought was made on the basis that a particular person (whether the appellant or some other person) either is, or is not, a parent of the child in question, and

(b) the ground of the appeal will be that the decision should not have been made on that basis."

It is accepted that an appeal on the grounds of a paternity dispute does lie outside the jurisdiction of the Child Support Appeal Tribunal; but it is said that in this instance the grounds of the appeal were against the amount of a valid maintenance assessment which had already been made.

4. I held an oral hearing which was attended by Mr R.... The Child Support Officer was represented by Mrs Fitzpatrick, Solicitor.

Mrs Fitzpatrick submitted that there was no parentage dispute before the Appeal Tribunal. Mr R... had not previously raised the issue of parentage. On the contrary he had expressly acknowledged paternity of the child in question and his appeal had merely been against the Child Support Officer's refusal to review the amount of the maintenance assessment. In these circumstances the Appeal Tribunal had misconstrued article 27 of the Order, which did not apply to an appeal concerning an assessment which had been validly made at a time when there was no dispute as to paternity. A discussion followed as to the action which an alleged absent father might take if, having initially acknowledged paternity, he subsequently wished to dispute it. Mrs Fitzpatrick said that guidance on the subject would be welcomed by Child Support Officers.

5. I have considered this matter and have reached the conclusion that the Appeal Tribunal erred in law in this case in deciding that they did not have jurisdiction to hear the appeal. In my view the Child Support Officer's grounds of appeal are well-founded. Mr R...'s appeal against the refusal of his application for the review of the maintenance assessment was concerned only with the amount thereof. A valid maintenance assessment had been made and there was nothing in Mr R...'s application under article 20 of the Order for a second tier review to suggest that parentage was disputed. The appeal to the Appeal Tribunal under article 22 of the Order was against the refusal of that application and did not raise the issue of paternity; which had not bearing upon the outcome of that appeal.

I note that a contrary view is expressed in a recent publication, "Child Support: The Legislation", with commentary by Jacobs & Douglas, at page 64. It is said that the effect of Section 26 of the Child Support Act 1991, (which is in all relevant respects identical to Article 27 of the Order), is to require an Appeal Tribunal to decide that it has no jurisdiction and refer the matter to the Secretary of State if an issue as to parentage arises in the course of an appeal. No mention is made of the Child Support Appeals (Jurisdiction of Courts) Order 1993 which only came into force on 5 April 1993 and may therefore not have been in existence when the commentary was written. It is not possible to say whether it would have made any difference to the view expressed. For my part, I consider that paragraph 2 of the Jurisdiction of Courts Order is designed to enable a decision to be made as to whether an appeal should go before a Child Support Appeal Tribunal or a Court of Summary Jurisdiction by studying the grounds of appeal. It would be impossible to operate such a system if account had also to be taken of new grounds of appeal arising in the course of a hearing.

6. My views on this matter set out in paragraph 5 above are sufficient to dispose of the appeal in this case. For the reasons given I allow this appeal and set aside the decision of the Appeal Tribunal. Fortunately, the Tribunal, despite deciding that they had no jurisdiction to hear the appeal, recorded the evidence and findings of fact in sufficient detail to enable me to give the decision which I consider should have been given by the Tribunal. Having confirmed with Mr R... that he does not dispute any of the figures on which the maintenance assessment was based, I find that the maintenance assessment in this case has been correctly calculated. My decision accordingly is that I disallow Mr R...'s appeal against the Child Support Officer's refusal of his application for review under article 20 of the Order and I confirm the maintenance assessment made on 30 June 1993.
7. As I explained at the hearing, the disallowance of Mr R...'s appeal against the amount of the maintenance assessment does not mean that he is fixed for all time with his initial acknowledgement that he is the father of the child in question. It was and is open to him to raise the issue of disputed parentage by way of a further application for a review under article 20 of the Order, on the grounds that the maintenance assessment was made in ignorance of or was based upon a mistake as to a material fact. For the moment I leave to one side the question of the precise nature of "the material fact" around which the application for a review would be built. So far as Mr R... would be concerned, he would no doubt merely state that he wished to have the assessment reviewed because he now maintained that he was not the father of the child in question and should not therefore have had a maintenance assessment made against him. At the oral hearing I suggested that, on receipt of such a further application the Child Support Officer would have to decide whether there were reasonable grounds for a review, and if satisfied that there were not, might refuse the application and leave it to Mr R... to decide whether or not to exercise his right of appeal under article 22. I further commented that, in those circumstances, any such appeal by Mr R... would, by virtue of the provisions of paragraph 2 of the Jurisdiction of Courts Order to be a Court of Summary Jurisdiction – not to an Appeal Tribunal. On further consideration of the legislation, I feel that my tentative views on the course which should be adopted by the Child Support Officer on receipt of a further application from Mr R... based upon a dispute as to parentage may well have been mistaken. I propose therefore to deal with that situation in the context of the guidance requested by Mrs Fitzpatrick on the procedure to be followed in relation to child support cases, with particular reference to disputed parentage.
8. Certain propositions can be stated with reasonable confidence:-

(a) As a general rule, a decision must undergo a form of internal appeal by way of a second tier review or be subject to a refusal thereof, before there can be an appeal to an Appeal Tribunal:- article 22 of the Order.

(b) Disputes about parentage are not to be decided under the regular adjudication procedure; but must be dealt with by a Court of Summary Jurisdiction:- articles 27 and 28 of the Order and paragraph 2 of the Court Jurisdiction Order.

(c) Under the wording of articles 27 and 28, a denial by an alleged parent that he is one of the child's parents is, (subject to the specified exceptions), sufficient to preclude a Child Support Officer from making a maintenance assessment and to require the dispute to be dealt with by a Court of Summary Jurisdiction. The Child Support Officer who is faced with a denial of parentage does not have the power to decide whether or not the dispute is a genuine one.

With rather less confidence, I am of the opinion that the following propositions can also be extracted from the legislation:-

(d) Although a denial of parentage will at any time remove from the regular adjudicating authorities their usual powers in relation to the making of a maintenance assessment until the issue has been resolved by a Court of Summary Jurisdiction, the effect of such a denial depends upon the stage at which it is first announced.

(i) a denial of parentage by an alleged father when he is first approached in relation to an application for child support maintenance precludes the Child Support Officer from making an assessment. The Department or the person with care must first apply to a Court of Summary Jurisdiction for a declaration of parentage:- article 28(1) of the order,

(ii) a denial of parentage which is advanced as a ground for a second tier review under article 20 again removes from the Child Support Officer the power to make a maintenance assessment and, as in (i) above, the case cannot proceed until the Department or the person with care has applied to a Court of Summary Jurisdiction for a declaration of parentage,

(iii) if, having sought a second tier review under article 20 on other grounds, an alleged father is dissatisfied with the result, and appeals against the second tier review decision or the refusal thereof by raising, for the first time, the issue of parentage, the appeal would be made to a Court of Summary Jurisdiction instead of to an Appeal Tribunal:- para 2 of the Jurisdiction of Courts Order.

It seems to me that this provision is of somewhat limited application, in that it concerns only those cases in which an entirely new issue is raised on appeal against a second tier review decision. I take the view that, in order to trigger the application of para 2 of the Jurisdiction of Courts Order, the stated grounds of such an appeal must comprise or include the specific ground of disputed parentage. It would not be sufficient for an alleged parent to raise that issue at the hearing.

(iv) Where, as happened in the present case, the denial of parentage is first raised at the hearing of an appeal under article 22 of the Order on other grounds, it is too late to apply the provisions of paragraph 2 of the Jurisdiction of Courts Order. If he wishes to pursue the matter an alleged parent must make a further application under article 20 of the Order for a review of the maintenance assessment. It is now my view that any such further application should be dealt with in the same way as an application at (ii) above, for a second tier review. A Child Support Officer has no power to deal with the matter and the case cannot proceed until the Department or the person with care has applied to a Court of Summary Jurisdiction for a declaration of parentage.

(v) Where, at some stage after a maintenance assessment has been made, an alleged father seeks a review on the ground of disputed parentage, and the information which he provides is sufficient to satisfy the Child Support Officer that he is indeed not the father of the child in question, it is in my view open to the Child Support Officer to accept the denial, bring the assessment to an end, and close the file on the case. I see no reason why, in such circumstances, the Department should spend time and money applying to a Court of Summary Jurisdiction for a resolution of the issue of paternity. Article 28 of the Order does not require such action to be taken. The provision is merely that the Department may apply, and if it decides not to do so, that option is still open to the person with care.

(e) I am now also of the opinion that the "material fact" in relation to parentage disputes is not the fact of parentage itself; but the fact of the existence of a denial by an alleged parent that he is one of the child's parents. As stated in sub-paragraph (c) above, the mere denial of parentage by one of the alleged parents is sufficient to take the case out of the hands of the regular adjudicating authorities. I accordingly take the view that it is the existence of that denial which should be regarded as the mistaken or unknown material fact which renders it appropriate that a review should be conducted. On this approach the Child Support Officer is not required to consider whether there is a reasonable or genuine dispute as to parentage; the denial is all that is needed to render it impossible for him to make a maintenance assessment until a Court of Summary Jurisdiction has made a declaration on parentage.

9. Applying these propositions to the facts of the present case, the view which I now take is that if Mr R... wishes to pursue this matter he should apply for a further review under article 20 of the Order, making it clear that the ground of his application is that he denies that he is father of the child in question and that he therefore maintains that an assessment should never have been made against him. It will then be open to the Department or the person with care to apply to a Court of Summary Jurisdiction for a declaration as to whether or not Mr R... is one of the child's parents. Any subsequent developments will depend upon the outcome of the application to the Court, and in the meantime the maintenance assessment should remain in abeyance.

(Signed): R R Chambers

CHIEF COMMISSIONER

8 July 1994