Mr. D. G. Rice CCS/4968/199521.6.98
Jurisdiction - Secretary of State requiring the person with care to authorise him to recover child support maintenance - whether obligation to consult absent parent
On 15 July 1994 the parent with care, who was the mother of the child, applied for child support maintenance under section 6(1) of the Child Support Act 1991. On 16 August 1994 a child support officer decided that the absent parent was liable to pay child support maintenance of £67.86 from 18 August 1994. A tribunal allowed the absent parent's appeal in part, remitting the case to the Secretary of State for him to arrange for the child support officer to reassess the child support maintenance after considering whether the correct amount had been allowed in respect of housing costs in the calculation of exempt and/or protected income. However, the tribunal rejected the absent parent's contention that the Secretary of State, when considering whether to require the parent with care to authorise him to take action to recover child support maintenance, should have enquired of the absent parent as to his views, and that by not doing so, the Secretary of State had failed to have regard to the welfare of the child contrary to section 2 of the Child Support Act 1991.
in exercising his discretion under section 6(1)(b) of the Child Support Act 1991 as to whether to require the person with care to authorise him to take action to recover child support maintenance, the Secretary of State was not in breach of section 2 of the Act if he did not first consult the absent parent (R v. Secretary of State for Social Security ex parte Lloyd  1 FLR 856 applied). In any event, the exercise of the discretion was a matter for the Secretary of State and the adjudicating authorities had no jurisdiction to consider this issue.
"This is an application by a father for leave to move for judicial review in relation to a determination under the Child Support Act 1991. The point that he makes is that the mother ought not to be asked, or required, to make an application without the Secretary of State first inquiring of the father over any points he wishes to make.
The power to force the mother to make the application is, under s.6 of the Child Support Act. Section 6(2) of that Act says:
"The Secretary of State shall not require a person (the parent) to give him the authorisation mentioned in subsection (1) if he considers that there are reasonable grounds for believing that-
(a) if the parent were required to give that authorisation; or
(b) if she were to give it, there would be a risk of her, or of any child living with her, suffering harm or undue distress as a result."
It is said on behalf of the father that that subsection, taken in conjunction with s. 2 of the Act, requires the Secretary of State to make inquiries, at the very best of the father, whether there is anything he wished to say on that aspect.
Section 2 of the Act provides that the Secretary of State, when considering the exercise of any discretionary power conferred by the Act, shall have regard to the welfare of the children likely to be affected by his decision.
The submission made by the father would have wide-ranging effects. It would mean in every case that when the Secretary of State required the mother to make an application, he would first of all have to ask the father whether there was anything he wanted to say about it. Section 6(3) of the Child Support Act provides that the mother can ask the Secretary of State to disregard s. 6(2) in which case s. 6(2) shall not apply. So, if the mother does not wish the Secretary of State to consider whether there are reasonable grounds for believing that there might be a risk, the Secretary of State does not even have to consider it at all. I regard the argument being put forward by the father in this case as fanciful, unrealistic and not supported by the Act. This application is dismissed."
Manifestly, in the present instance, the mother, the person with care, did not seek to prevent the Secretary of State from requiring her to apply to the child support officer for a maintenance assessment, and the Secretary of State was not required to consult the absent parent. Accordingly, the absent parent's criticism of the Secretary of State was ill-founded.
Date: 21 June 1998 (signed) Mr. D. G. Rice