Mr. J. Mesher CCS/13462/1996
Application for maintenance - undertaking in preamble of court order to make maintenance payments to children - whether a 'maintenance order' is in force
The parent with care (PWC) made an application under section 4 of the Child Support Act 1991 which resulted in an interim maintenance assessment. That was cancelled when a maintenance assessment was made. The PWC appealed against the cancellation and against the basis of the assessment to a tribunal, which found inter alia that a court order had been made on 15 June 1993 but that it had no bearing on the effective date of the assessment. On application by the PWC, the Commissioner granted leave to appeal to consider the effect of the court order and contemporaneous undertakings, and specifically whether there was in force a "maintenance order" within the meaning of section 8(11) of the Child Support Act 1991 so that an application under section 4 of the Act was precluded by paragraph 2 of the Schedule to the Child Support Act 1991 (Commencement No. 3 and Transitional Provisions) Order 1992. Section 8(11) defines a maintenance order as "an order which requires the making or securing of periodical payments to or for the benefit of the child" and is made under specified legislation.
In the preamble to the court order of 15 June 1993 it was recited that the absent parent undertook to continue to pay periodical payments of £10 per week to each child of the family.
Held, allowing the appeal, that:
- undertakings may for some purposes be treated in the same way as orders, especially where the undertaking is an integral part of the order, although there are important differences in their nature (e.g. the requirement to carry out an undertaking stems from the undertaking, not the order) (paragraphs 8 to 19);
- section 8(11) of the Act, however, reflects the distinction between undertakings and orders so as to exclude obligations arising out of undertakings, even where the undertaking is an integral part of the order;
- the tribunal did not therefore err in law by failing to find that no valid application for maintenance had been made by reason of the existence of the court order.
The Commissioner thereafter identified errors of law relating to the basis of the assessment and cancellation of the interim maintenance award and remitted the case to a fresh tribunal.
DECISION OF THE CHILD SUPPORT COMMISSIONER
"1. There is a conflict of evidence as to whether the original MEF was received by [the absent parent]. The CSO has investigated and has taken the view that it was received. The assessment has been conducted on that basis.
- There is some evidence that [the absent parent] may have sought to maximise his housing costs. The CSO has not challenged this, but housing costs are capped under regulation 18(1) MASC Regulations 1992.
- [The absent parent] has received £20,500 in respect of his share in the former matrimonial home. Some of this has been spent on refurbishment of his house. He has paid £205 off his mortgage."
Its reasons for decision were as follows:
"1. The MEF could not have been "given or sent" to [the absent parent] on Saturday, 23 October 1993.
- The CSO has previously obtained a P60 in respect of [the absent parent] and the calculation of wages is based on this, following the review conducted on 12 December 1994.
- The CSO, having made an investigation has concluded that [the absent parent] received the original MEF. The effective date is now therefore 25 October 1993. There is no basis on which to alter this decision. Equally the CSO has now seen fit to cancel the interim assessment from 6 January 1994, when sufficient information about [the absent parent's] financial circumstances was available. This was within the regulations (regulation 9(3) CS(MAP) Regulations). Following a section 18 review the CSO has back-dated the revised assessment to the effective date (presumably under regulation 31(9) MAP Regulations). Again there is no basis for a contrary direction.
- Regulation 18(1)(e) MASC Regulations is inapplicable. The fact that [the absent parent] has not used the substantial sum received in April 1995 in respect of his interest in the former matrimonial home in order significantly to reduce his present mortgage creates an inference that his present housing costs are not inflated "by virtue" of the previous unavailability of that lump sum. Regulation 18(1) should continue to apply.
- The court order (made on 15 June 1993) is not specified for the purposes of section 10(1) CSA and regulation 3 MAJ Regulations 1992. Accordingly its existence does not have a bearing on the effective date."
"2. Subject to paragraph 4 below, during the transitional period no application under section 4 of the Act (applications for child support maintenance) in relation to a qualifying child or those qualifying children may be made at any time when-
(a) there is in force a maintenance order or written maintenance agreement (being an agreement made before 5th April 1993) in respect of that qualifying child or those qualifying children and the absent parent; or
(b) benefit is being paid to a parent with care of that child or those children."
The "transitional period" was the period from 5 April 1993 to 6 April 1997 (paragraph 1(1)). Paragraph 4 allowed an application under section 4 to be made from certain dates from 8 April 1996 onwards. The application in the present case was made well before that date and so fell within the general rule of paragraph 2. From 4 September 1995, the newly inserted section 4(10) of the Child Support Act 1991 has re-enacted the general rule set out above, without the exception formerly provided by paragraph 4 of the Schedule to the Commencement Order.
"the Respondent undertaking to continue to pay periodical payments for each child of the family at the rate of £10 per week until such time as the appropriate rate is assessed by the Child Support Agency."
Then there were orders for the sale of the matrimonial home and division of the proceeds of sale; the transfer of endowment policies to the petitioner; the dismissal of the petitioner's claim for periodical payments for herself; and the dismissal of all other claims on the distribution of the proceeds of sale and the transfer of the policies.
"Let it be stated in the clearest possible terms that an undertaking to the court is as solemn, binding and effective as an order of the court in the like terms and that the contrary has never been suggested . ... Undertakings may be recorded in an order of the court, as occurred in this case, but it is the undertaking and not the order which requires the giver of the undertaking to act in accordance with its terms. If he fails to do so, he acts in breach of the undertaking, but cannot be said to refuse or neglect to act in accordance with the order which happens to record the undertaking or to disobey that order and it is to those offences alone that these two rules [on committal to prison] apply."
Date: 13 May 1998 (signed) Mr. J. Mesher