UK Social Security and Child Support Commissioners' Decisions

THE CHILD SUPPORT COMMISSIONERS Commissioner's Case No: CCS/2567/1998 CHILD SUPPORT ACTS 1991 AND 1995 SOCIAL SECURITY ACT 1998 APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW DECISION OF THE CHILD SUPPORT COMMISSIONER MR COMMISSIONER JACOBS


 


Decision:

1. My decision is as follows. It is given under section 24(2) and (3)(a) of the Child Support Act 1991.PRIVATE
2. .1 The decision of the Carlisle child support appeal tribunal held on 18^th February 1998 is wrong in law.
3. .2 Accordingly, I set it aside and, as I can do so without making fresh or further findings of fact, I give the decision that the appeal tribunal should have given.
4. .3 My decision is:

the Secretary of State has jurisdiction to make a maintenance assessment of the father's liability to pay child support maintenance in respect of his daughter, Claire.

The facts

5. I refer to the parents in this case as the father and the mother. They had two children, Rachel and Claire. The parents separated and a court order was made on 21^st December 1987. As well as dealing with the ownership of the matrimonial home and its contents, it ordered the father to pay maintenance of £20 a week for each daughter. The order was honoured by the father until Claire went to live with him in 1993. (Rachel remained with her mother.) The father then applied under section 4 of the Child Support Act 1991 for a child support maintenance assessment of the mother's liability with respect to Claire. An assessment was made. In 1995, Claire went back to live with her mother. Her mother's liability to child support maintenance came to an end. In December 1995, she applied under section 4 of the Act for a child support maintenance assessment of the father's liability with respect to Claire. However, the papers were lost and a fresh application was made on 28^th May 1996. A child support officer decided that there was no jurisdiction to make an assessment and, on the mother's application for a review under section 18 of the Act, a different child support officer decided that there were no grounds for review. The mother appealed against that decision to a child support appeal tribunal, but the tribunal confirmed the child support officer's decision that there was no jurisdiction to make an assessment.

The appeal to the Commissioner

6. The mother appealed to a Commissioner with the leave of Mr Commissioner Mesher. When written observations were received from the parties, Mr Mesher directed an oral hearing, setting out the issues that arose. By this time, the title and status of child support officer had been abolished and the duties of those officers were transferred to the Secretary of State b the Secretary of State. So, the Secretary of State became the first respondent.
7. As with any case that comes within the care and control of Mr Commissioner Mesher, the grant of leave identified the relevant issues, and his further directions focused the discussion for the later submissions and the oral hearing. I am grateful to him for that. Unfortunately, he was not available to take the oral hearing. It was held before me in London on 31^st January 2001. The father did not attend and was not represented at the hearing. The mother attended without representation, although her solicitor had sent a detailed legal submission summarising the arguments that had been used in support of her application. The Secretary of State was represented by Mr L Scoon of the Office of the Solicitor to the Departments of Health and Social Security.

The issues

8. The key issue in this case is whether the mother was entitled to make an application with respect to Claire. In effect, I have to decide what is the relationship in Claire's case between the two schemes of maintenance – the court scheme and the child support maintenance scheme. There are two possibilities. One is that both schemes apply. If Claire's mother wants to claim maintenance for her, she has to use the court order. But if her father wants to claim maintenance for Claire, he has to use the child support scheme. The other possibility is that, once Claire has come within the child support scheme, she remains within it, regardless of whether her mother or her father wants to claim maintenance for her.
9. The best way to analyse the issues that arise is to take the case in chronological stages.

Stage 1 – when Claire was first living with her mother

10. So long as Claire was living with her mother following her parent's separation, her maintenance was governed by the court order. At first, this was because child support law did not exist. Even when the scheme had come into force, her mother could not make an application under section 4 for a child support maintenance assessment in respect of her. The reason lay in the phasing arrangements for the introduction of the scheme. The relevant provision was paragraph 2 of the Schedule to the Child Support Act 1991 (Commencement No 3 and Transitional Provisions) Order 1992:

'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 any 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 5^th 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.'

(This provision has now been re-enacted as section 4(10) of the Child Support Act 1991.)

11. Paragraph 2(a) prevented the mother from making an application for a child support maintenance assessment in respect of Claire.

Stage 2 – when Claire went to live with her father

12. When Claire went to live with her father, he was entitled to make an application for a child support maintenance assessment against her mother. This is not in dispute. However, there are two different reasons that have been given for this conclusion. One was given by Mr Commissioner Rice, the other by the Court of Appeal.
13. Mr Commissioner Rice In CCS/11/1994 (reported as R(CS) 4/96), the Commissioner interpreted paragraph 2. In that case, the parents had separated and a court order had been made ordering the father to pay maintenance for the children. The children then went to live with the father, who applied for a child support maintenance assessment against the mother. The Commissioner held that the father could make the application. His reasoning is in paragraph 12 of his decision:

'At that time [the date when the application was made] there was a maintenance order in being in respect of the children and the absent parent, but one which was wholly without effect. Although it had not been formally rescinded, it had no bearing on the financial relationship of the parties, nor if there had been an application to the court at that particular time at least, could the order have been brought into operation so as to require a payment by the parent with care in respect of the children. Any other view would be to fly in the face of reality, and to nullify the whole purpose underlying the statutory provision.'

14. Court of Appeal The mother applied to the Court of Appeal for leave to appeal against Mr Commissioner Rice's decision (Kirkley v. Secretary of State for Social Security and the Child Support Officer). Leave was refused, first on the papers by Lord Justice Neill (on 23^rd October 1995) and then after an oral hearing by Lord Justice Simon Brown and Mr Justice Buxton (on 15^th December 1995). The Court refused leave to appeal. Its reasoning was that the Commissioner had come to the correct conclusion for the wrong reason. Lord Justice Simon Brown explained:

'The central point, therefore, is that the absent parent, within the meaning of paragraph 2(a), is the parent absent when the order was made and against whom it was made. When, as here, that absent parent becomes the parent with care, the order remains in force but it ceases to be a relevant order because it is no longer an order in respect of an absent parent. ... The provisions refers, be it noted, not to "an" absent parent, but rather to "the" absent parent. In short, the only order with which paragraph 2(a) is concerned is one against a parent absent when ordered to pay maintenance and still absent when the section 4 application comes to be made under the Child Support Act.'

15. The reasoning of Mr Commissioner Rice and of the Court of Appeal both produced the same result on the facts of that case. On either reasoning, the father was entitled to make an application.

Stage 3 – when Claire went back to live with her mother

16. When Claire went back to live with her mother, what happened to the court order?

Court of Appeal

17. I first have to consider three issues that arise on the Court of Appeal's reasons for refusal of leave to appeal in Kirkley: their status, their accuracy and their scope.

Status

18. The status of reasons given for refusing leave to appeal to the Court of Appeal was considered by that Court in Clark v University of Humberside and Lincolnshire [2000] 3 All England Law Reports 752 at paragraphs 40 to 43. Mr Scoon argued that this decision was only concerned with whether reasons given on refusing leave were binding on the Court of Appeal itself. I accept that argument.
19. However, the factors that led to the conclusion in Clark are relevant in assessing the status in lower courts of reasons given by the Court of Appeal when refusing leave to appeal. In summary, the factors are that argument on an application for leave is usually limited and judgment is usually given briefly. Mr Scoon accepted that point and argued that reasons for refusing leave are merely persuasive in lower courts. I accept that argument. Reasons given by the Court of Appeal when refusing leave to appeal are not to be disregarded lightly, but their value as precedent must be assessed taking account of all relevant factors. These factors include whether all parties were represented and the extent of the arguments presented.
20. What weight do the reasons in Kirkley carry? On the debit side, the Court heard argument from only one of the parties (the mother) and had little time to consider its judgment. On the credit side, the decision of the Commissioner contained details of the legal argument by the different advocates for the Secretary of State and the child support officer. So, the Court had before it detailed arguments on both sides of the issue. It also gave a detailed judgment.

Accuracy

21. Most importantly of all is the fact that the reasons given by Lord Justice Simon Brown are, with respect, clearly correct. The Court was concerned with the position at the time when the father attempted to apply for a child support maintenance assessment. At that date, the order was still in force. Section 29 of the Matrimonial Causes Act 1973 deals with the duration of financial provisions orders in favour of a child. There is provision for an order to cease to have effect in some circumstances, but a change in the child's residence is not one of them. The order has to be varied or discharged, or its operation has to be suspended, under section 31 of that Act. The position is the same under the Domestic Proceedings and Magistrates' Courts Act 1978 and the Children Act 1989. There is no provision for a court order to cease being in force on the facts in Kirkley. Mr Commissioner Rice was, with respect, wrong on that point.

Scope

22. Two issues arise on the scope of the Court of Appeal's reasoning.
23. First, the Court was concerned with the position at the time when the father submitted a Maintenance Application Form. It was not concerned with the position later when an assessment was made. At that point, section 10 of the Child Support Act 1991 has to be considered. That section provides that in some circumstances orders made under particular statutes cease to have effect from the effective date of the maintenance assessment. I have to consider that section in this case.
24. Second, what is the significance of the word 'still' in Lord Justice Simon Brown's judgment? On the reasoning of the Court of Appeal, the court order had remained in force while Claire was living with her mother. So, it was still in force when Claire went back to live with her father. When she returned to live with her mother, her father became again the absent parent. Looking only at the wording of the Lord Justice Simon Brown's judgment, it seems that Claire's father was 'a parent absent when ordered to pay maintenance and still absent when the section 4 application' was made. The word 'still' may suggest that the Court envisaged that paragraph 2(a) applied only where the same person was continuously absent. But it can just as easily be explained as reflecting the facts of the case and not as embodying part of the interpretation of paragraph 2(a).
25. I read 'still' as merely reflecting the facts of the case. The Court did not expressly state that continuity of status was needed and there is nothing in its reasoning to suggest this. And, of course, if it was expressing this view, it did not take account of the possible effect of section 10.

Section 10

26. Section 10(1) provides:

'When an order of a kind prescribed for the purposes of this subsection is in force with respect to any qualifying child with respect to whom a maintenance assessment is made, the order-

(a) shall, so far as it relates to the making or securing of periodical payments, cease to have effect to such extent as may be determined in accordance with regulations made by the Secretary of State; or

(b) where the regulations so provide, shall, so far as it so relates, have effect subject to such modifications as may be so determined.'

27. The relevant regulations are the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992. The order in this case is one of those prescribed in regulation 3(1). Regulation 3(2) and (6) provides:

'(2) Subject to paragraphs (3) and (4), where a maintenance assessment is made with respect to-

(a) all of the children with respect to whom an order falling within paragraph (1) is in force; or

(b) one or more but not all of the children with respect to whom an order falling within paragraph (1) is in force and where the amount payable under the order to or for the benefit of each child is separately specified,

that order shall, so far as it relates to the making or securing of periodical payments to or for the benefit of the children with respect to whom the maintenance assessment has been made, cease to have effect.'

'(6) Where the provisions of paragraph (2) apply to an order, that part of the order to which those provisions apply shall cease to have effect from the effective date of the maintenance assessment.'

28. Two issues arise on section 10. First, does it apply to orders that are not made against the absent parent under the assessment? Second, what does 'cease to have effect' mean?

Does section 10 apply to this order?

29. Does section 10 only apply to order against the absent parent in respect of whom an assessment is made? If it does, it did not apply to the court order in this case when an assessment was made with respect to Claire's mother.
30. In its terms, section 10 covers the circumstances of this case. Its scope and effect are fixed without reference to which parent is liable to pay under the order. So, if I am to interpret the section differently from its wording, there must be a justification. I find no justification. Section 10 applies.

Cease to have effect

31. Mr Scoon argued that this means that the order is suspended in respect of the child for whom the assessment is made and that it automatically revives when that assessment comes to an end. He could not point to any authority for those propositions.
32. I was able to tell Mr Scoon that his view was also taken by Nicholas Mostyn QC in Child's Pay (2^nd edition) at page 149. Mr Mostyn reports that this is the view taken by 'Officials of the DSS' and says that regulation 8 supports the view. Regulation 8 provides that a court order is to be treated as having continued in force if an assessment is made in error. I do not see that as supporting Mr Scoon's interpretation. It deals with a special circumstance and makes the provision that is obviously appropriate to it.
33. I reject Mr Scoon's argument. I interpret 'cease to have effect' as meaning that the court order automatically comes to an end for all time as regards the child for whom the assessment is made. In outline, my reasoning is this. That is the natural meaning of the expression and the meaning that it bears elsewhere in the child support legislation. It is consistent with the use of the expression in other family legislation and that legislation shows that there is language better suited to convey Mr Scoon's interpretation. It is also consistent with the overall scheme of the child support legislation, at least in England and Wales.
34. I put to Mr Scoon that the expression did not bear his interpretation in the child support scheme or in other family legislation. In response, he argued that the meaning of words can vary according to the context. I accept that language has to be interpreted in its context. Nevertheless, I cannot find Mr Scoon's interpretation in the context of section 10 and regulation 3.
35. Considered in isolation, when something 'ceases to have effect' the natural meaning is that it comes to an end permanently on the happening of an event. However, the expression has to be interpreted in its context. That context consists of the child support legislation. As that legislation is part of British family legislation, it is appropriate also to consider that wider context.
36. I begin with the use of the expression in the child support legislation.
37. The expression is used in the child support legislation in two ways. One use is illustrated by paragraph 16(1) of Schedule 1 to the Child Support Act 1991, which sets out circumstances in which a maintenance assessment ceases to have effect. In this use, its meaning seems clear to me. It means that, on the happening of a specified event, something comes to an end automatically and without the need for a decision, and that this effect is permanent. It is used in contrast to cancellation, which is permanent in effect but requires a decision: see paragraph 16(2) to (11). The other use is found in regulation 7(3) of the Maintenance Arrangements and Jurisdiction Regulations, where the expression describes the effect of a cancellation. That also involves the notion of a permanent effect.
38. I deal next with the family legislation.
39. My interpretation is supported by the meaning of the expression in other family legislation. It is used, for example, in section 25(1) of the Domestic Proceedings and Magistrates' Courts Act 1978, under which an order ceases to have effect after the parties to a marriage have lived together for at least six months. There its meaning seems to involve an order coming to an end automatically on the happening of a specified event.
40. The family legislation does provide for an order that has ceased to have effect to be revived. For example, section 27(6B) of the Matrimonial Causes Act 1973 provides that an order which has ceased to have effect for a child between the ages of 16 and 18 may be revived in certain circumstances. However, although revival is possible, it is expressly provided for. Also, it requires a court order; it does not occur automatically. I am not aware of any provision in family legislation under which an order that has ceased to have effect revives automatically.
41. At this point, I need to deal with section 8 of the Child Support Act 1991. That Act limited the powers of the courts in respect of maintenance for children. Section 10 deals with the effect of a maintenance assessment on a court order. Section 8 limits the powers of a court in respect of an order when a maintenance assessment could be made.
42. If a maintenance assessment could be made in relation to Claire and her father, the court had no power to make, vary or revive an order in relation to them: see section 8(3). If the making of a maintenance assessment was prevented by section 4(10), which re-enacts paragraph 2 of the Commencement Order No 3, the court had no power to make or revive an order in relation to Claire and her father, although it did have power to vary one: see section 8(3) as modified by section 8(3A). So, in neither case was there power to revive the order. And it is not appropriate to speak of varying an order in relation to a child and a parent if there is no order in force or in effect in relation to them - that requires making an order or reviving one.
43. The family legislation also shows that there is language that is more appropriate to convey Mr Scoon's interpretation. Section 31(1) of the 1973 Act gives power to the court

'to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.'

I notice that even there a further order is necessary in order to revive the operation of the order. If Mr Scoon' interpretation were correct, I would have expected the child support legislation to provide that the operation of the court order was suspended for so long as a child support maintenance was in force. (The word 'discharge' could not be used in the child support legislation, because the whole of the maintenance order is not brought to an end, only the part that provides for maintenance for the qualifying child.)

44. So, in summary the family legislation is relevant for three reasons. First, it provides some support for the usual meaning of 'cease to have effect' Second, it provides an example of alternative language that could have been used. Third, it makes no provision for a court order that has ceased to have effect under the child support legislation to revive either automatically or on a further court order.
45. So far, all the indications are that Mr Scoon's interpretation is not correct. Turning to the overall scheme of the child support legislation, the issue becomes more confused.
46. If a court order ceases to have effect or revives, I would expect provision to be made for notifying the court that this has happened. There is a provision for notification when an order ceases to have effect: see regulation 5 of the Maintenance Arrangements and Jurisdiction Regulations. There is no provision for notification when an order revives. This supports my interpretation. However, there is no provision for notification even when an order does revive under the child support legislation. So, if a maintenance assessment was made in error, the court order is treated as having remained in force: see regulation 8 of those Regulations. But there is no provision for notification to the court. Nor is there any provision for notification when an order revives under regulation 3(4) of those Regulations. This is a difficult provision that I must consider in detail.
47. Regulation 3(4) applies only to Scotland. It provides that an order has effect again as soon as there is no longer jurisdiction to make a child support assessment. I begin with this assumption – that the child support legislation should have the same meaning in Scotland as it has in England and Wales, unless a different interpretation is unavoidable. However, I have not been able to find a way to avoid a different interpretation.
48. I know of no provision in English family legislation under which a court order that has ceased to have effect under the child support legislation revives automatically. Nor do I know of any provision in English family legislation under which the court may revive an order that has ceased to have effect under the child support legislation. So, if the order revives, it must revive under the child support legislation and without the need for an order. But, if it revives in England and Wales under that legislation, why does it not automatically revive in Scotland? The answer can only be that there is something in Scottish family law that prevents it – otherwise, regulation 3(4) would be redundant. Even with the help of the Commissioners' Edinburgh office, I have been unable to find any provision in Scottish legislation that has that effect.
49. So, I am left with the unsatisfactory conclusion that the law in Scotland is different from that in England and Wales. The only explanation that I have been able to think of is that when regulation 3 was drafted there were contributions from both London and Edinburgh and that a lack of communication or of understanding of the different systems of law led to different provision.

A rational policy?

50. Standing back from the detail of the argument, I return to the different models for transition from the court scheme to the child support scheme that I mentioned in paragraph 5. On my interpretation of the legislation, the child support scheme supplants the court scheme in respect of a child as soon as the child falls within it.
51. It is well-known that the transfer of private-client cases into the child support scheme has not taken place as originally intended. The plan was that all cases would fall within the child support scheme by 1997. That date has been postponed. However, that cannot affect the interpretation of the legislation. The scheme of the legislation was based on an assumption that all cases would be brought within it, subject to the limited powers left to the courts under section 8. This is why the Commencement Order No 3 referred to the 'Phased Take-on of Cases'. Against the background, my interpretation produces a rational transition. It may even be more rational, and more consistent with the details of the legislation, than for both schemes to operate in respect of the same child.

Representation before Commissioners in child support appeals

52. Commissioners exercise an inquisitorial jurisdiction. However, that does not mean that we have to do all the work ourselves. We are entitled to expect assistance from the parties and their representatives. This applies especially to the Secretary of State, who is not a contentious party to the proceedings. The Secretary of State is usually represented by the Office of the Solicitor to the Departments of Health and Social Security. I intend no personal criticism of Mr Scoon or his colleagues when I say that their background lies in social security rather than family law. They are familiar with the child support legislation, but inevitably their expertise does not extend beyond that into the further reaches of family law and legislation. In cases that involve consideration of issues of family law and legislation outside the child support scheme, it would be very helpful if the Secretary of State were represented by an advocate with the relevant knowledge and experience.

The effect of my decision

53. The mother's appeal is allowed. The Secretary of State has jurisdiction to make an assessment of the father's liability to pay child support maintenance in respect of Claire. The Secretary of State will now make that assessment, although further inquiries will have to be made in order to obtain up-to-date information from both parents.

Signed on original Edward Jacobs

Commissioner

12^th February 2001