UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CCS_4049_2007 (09 July 2008)

 
DECISION OF THE CHILD SUPPORT COMMISSIONER
1. My decision is given under section 24(2) and (3)(a) of the Child Support Act 1991:

I SET ASIDE the decision of the Oxford appeal tribunal, held on 30 August 2007 under reference 048/07/00568, because it is wrong in law.

I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.

My DECISION is that, as there was in force a maintenance order made before 3 March 2003, Rhian's mother has no power to make an application for a child support maintenance calculation.

REASONS

Introduction

2. Child support was introduced by the Child Support Act 1991. The statutory scheme was substantially modified under the Child Support, Pensions and Social Security Act 2000. Part of the scheme of the 2000 Act was to allow court orders to govern maintenance for children so long as the parent with care was not receiving income support or income-based jobseeker's allowance. The issue in this case is whether there is in force a maintenance order. If there is, there was no power to apply for a child support maintenance calculation and the Secretary of State has no jurisdiction to make one.

How the issue arises

3. The issue arises in this way. The case concerns maintenance for Rhian. She lives with her mother, who applied for a maintenance calculation of Rhian's father's liability in 2005. A calculation was made of £81 a week. This amount was later changed to £71 a week. Rhian's father exercised his right of appeal to an appeal tribunal. One issue that he raised was whether the Secretary of State had jurisdiction to make a calculation in view of the court order that had been made in 1999. The tribunal decided that the Secretary of State had jurisdiction and the father applied for leave to appeal to a Commissioner. Leave was given by Mr Commissioner Turnbull, who later transferred the case to me. I have received observations from the Secretary of State and Rhian's father. Rhian's mother had no comments to make.

The legislation

4. Section 4 of the Child Support Act 1991, as amended, provides:

'(10) No application may be made at any time under this section with respect to a qualifying child or any qualifying children if-

(a) there is in force … a maintenance order made before a prescribed date in respect of that child or those children and the person who is, at that time, the non-resident parent; …'

The prescribed date is 3 March 2003.

5. 'Maintenance order' is defined by sections 54 as having the meaning given in section 8(11), which reads:

'(11) In this Act "maintenance order", in relation to any child, means an order which requires the making or securing of periodical payments to or for the benefit of the child and which is made under-

(a) Part II of the Matrimonial Causes Act 1973;

…

and includes any order varying or reviving such an order.'

The court order

6. The order was made on 9 December 1999 in the Reading County Court before District Judge Henson. The order is not identified as a consent order and there is no evidence that it was given by consent. Rhian's father was the respondent. The relevant part reads:

'IT IS ORDERED THAT:

…

3. A. The Respondent do pay periodical payments:

(i) Until further order to the Petitioner for the benefit of the child Rhian … until she attains the age of seventeen or ceases full time education (whichever is the latter [sic]); and

(ii) During their joint lives to the Petitioner until the Petitioner's earlier remarriage or further order

in the global sum of £300 per calendar month commencing 6^th January 2000.

B. For so long as the Respondent shall be under an obligation to maintain the child under the terms of this order the said sum of £300 shall be apportioned in such a way that the amount payable in respect of the child shall equate to the sum which the Respondent would have to pay upon assessment under the Child Support Act 1991.'

The issues

7. Two issues arise. Was the order a 'maintenance order' as defined by section 8(11)? Was it 'in force' for the purpose of section 4(10)(a)?

Was the order a 'maintenance order'?

8. The order was clearly an order in the sense that it was a formal document issued by a court that recorded the decision made by that court. It required Rhian's father to make periodical payments for her benefit. The judge did not record the legislation under which the order was made, but it is reasonable to infer from the circumstances that it was made under the Matrimonial Causes Act 1973. That is the case for the order being a maintenance order as defined.
9. The case against is that this is a form of order known as a Segal order. This type of order was considered by the Court of Appeal in Dorney-Kingdom v Dorney-Kingdom [2000] 2 FLR 855. The essence of this type of order is that one parent is ordered to pay a global amount of maintenance for the other parent and their children, with that amount reducing by the amount of the paying parent's later liability for child support maintenance. It is, therefore, designed to be of temporary effect, as described by Thorpe LJ:

'14. … When a "Segal order" is made an important ingredient is that the overall sum will reduce pro tanto from the date upon which the Child Support Agency brings in an assessment. The utility of the "Segal order" is obvious, since in many cases the determination of the ancillary relief claims will come at a time when the Child Support Agency has yet to complete its assessment of liability. It is therefore very convenient for a district judge to have a form of order which will carry the parent with primary care over that interim pending the Agency's determination.

15. … it seems to me to be just within the bounds of legitimacy, since it is no sort of ouster of or challenge to the jurisdiction of the Agency, but merely a holding until such time as the Agency can carry out its proper function. …'

The Segal order also gave the courts control over the total maintenance payable by adjusting spousal maintenance as child support maintenance came in and changed over time.

10. The order in this case was not a Segal order. It contained no provision for the maintenance to reduce as and when a maintenance calculation was made. It merely provides for the apportionment of the maintenance between Rhian and her mother. The only indication that it was designed to be temporary in its effect is the opening words of paragraph 3B, which limit the apportionment for such time as the father's obligation to pay maintenance was governed by the order. It is silent on how that obligation might come to an end. With respect to the judge who made the order, I do not understand what it was designed to achieve.
11. Rhian's mother has produced counsel's advice that this order is a Segal order. I do not agree with that advice for the reasons I have given.
12. My conclusion is that the order is a maintenance order as defined by section 8(11).

Was the order 'in force'?

13. This issue arises because from 2000 the parents came to a different arrangement about maintenance for Rhian. This agreement continued to be honoured until at least 2004. However, neither parent applied for the court to vary the order.
14. The Child Support Act 1991 does not define 'in force'.
15. It was considered by Mr Commissioner Rice in R(CS) 4/96. He decided that an order was in force only if it continued to have practical effect between the parties. The parents in that case 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:

'13. … Manifestly, in determining whether there was jurisdiction, the relevant time was the date of application for child support maintenance. At that time 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.'

16. However, that was not the end of the matter. The mother applied to the Court of Appeal for leave to appeal against Mr Commissioner Rice's decision. The application was considered on the papers by Neill LJ who refused leave on 23 October 1995. The mother then attended an oral hearing before Simon Brown LJ and Buxton J on 15 December 1995, but the Court refused leave. The transcript (Kirkley v Secretary of State for Social Security and the Child Support Officer) shows that the Court considered that the Commissioner had come to the correct conclusion for the wrong reason. Simon Brown LJ 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.'

Accordingly, the father was entitled to make an application on the reasoning of both the Commissioner and the Court.

17. Mr Rice's reasoning was applied to a written maintenance agreement by Mr Commissioner Sanders in CCS/12849/1996. His decision was given on 2 May 1997, but he showed no signs of being aware of the grounds on which the Court of Appeal had refused leave to appeal. On the other hand, I declined to follow Mr Rice's interpretation of 'in force' in CCS/2567/1998, but I can hardly rely on my own decision as an independent authority in this matter.
18. I note that R(CS) 4/96 has been criticised by Professor Nick Wikeley in Child Support - Law and Policy (2006) at pages 205-206. He cites a decision of the Outer House of the Court of Session, which decided that an order containing a reservation clause allowing either parent to apply for a variation had the effect that the order remained in force even after the father's duty to pay under the order had come to an end (Cassidy v Cassidy 1997 SLT 202).
19. I am not bound to follow a decision of a Commissioner if to do so would perpetuate error (R(I) 12/75 at paragraph 21). Following Mr Rice on the meaning of 'in force' would perpetuate error. The reasons given by the Court of Appeal for refusing leave to appeal in Kirkley are not citable as an authority: see the decision of the Court of Appeal in Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 and Practice Direction (Citation of Authorities) [2001] 1 WLR 1001. However, I am entitled to take account of the contents of those reasons, which are (with respect) right.
20. The words 'in force' relate to the order and naturally relate to its continuing operation. The duration of the operation may be determined in three ways: (i) by further order; (ii) by its terms; or (iii) by operation of law.
21. As to (i), there has been no further order. 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, which do not apply. Otherwise, the order has to be varied or discharged, or its operation has to be suspended, under section 31 of that Act. Under those provisions, the order remains in force. I notice that counsel's advice was to the same effect. The Secretary of State has argued that the parents' later agreement varied the court order. That is not correct; only the court had power to vary the order. (i) does not apply.
22. As to (ii), the terms of the order provide only for maintenance for Rhian to come to an end when she is 17 or ceases full-time education. Neither has happened. (ii) does not apply.
23. As to (iii), I am not aware of any rule that renders a court order inoperative simply because the parties do not implement it. Parties may waive their rights under an order, but that does not affect the order itself. (iii) does not apply.
24. My conclusion is that the order remains in force for the purpose of section 4(10)(a).

Disposal

25. I allow the appeal and substitute the decision that the tribunal should have given, which is that that Rhian's mother had no power to apply for a child support maintenance calculation and that the Secretary of State had no jurisdiction to make one.

Signed on original on 09 July 2008

Edward Jacobs Commissioner