Upper Tribunal (Administrative Appeals Chamber)

CMEC v NC [2009] UKUT 106 (AAC) (11 June 2009)
Child support
applications

 


DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

The Child Maintenance and Enforcement Commission's appeal to the Upper Tribunal, begun in the name of the Secretary of State for Work and Pensions, is allowed. The decision of the appeal tribunal of 15 October 2007 involves an error on a point of law, for the reasons given below, and is set aside. It is appropriate to re-make the decision on the non-resident parent's appeal against the decision dated 20 October 2006 of the Secretary of State (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii) and (4)). The decision as re-made is that the appeal is disallowed and that no variation is to be allowed under regulation 10 of the Child Support (Variations) Regulations 2000.

REASONS FOR DECISION

1. The essential facts in this case are relatively straightforward and not in dispute, but some complicated questions of the application of European Community (EC) law and of the Human Rights Act 1998 have been raised. For that reason, although there can now be no doubt that the appeal tribunal went wrong in law by overlooking a crucial definition, the position under the child support legislation considered alone has to be established with some care. The issue is whether a non-resident parent of a qualifying child in the United Kingdom is entitled to have the ordinary rules for a maintenance calculation varied to take account of the costs of contact with another child of his who is resident in another Member State of the European Union and for whom he is liable to pay maintenance under a court order made in that state.
2. There was an oral hearing of the appeal on 14 November 2008, at the request of the non-resident parent of the child in question (Faith), who from now on I shall call the father. He attended, as did the parent with care, who from now on I shall call the mother. The Child Maintenance and Enforcement Commission (CMEC), which took over responsibility for the Child Support Agency from the Secretary of State for Work and Pensions on 1 November 2008, was represented by Mr Tim Buley of counsel, instructed by the Solicitor to the Department for Work and Pensions. It does not matter that everyone involved continued to refer to the Secretary of State. I am grateful to all present for their contributions. As the hearing was slightly compressed due to a late start, I accepted two further written submissions from the father made after the hearing. There was then some delay while CMEC and the mother were given the opportunity to comment, taken up only by CMEC. There has been a further extended delay after I gave the parties the opportunity (which no-one wished to take up in substance) to comment on the Opinion of the Court of Session in Scotland in HW v Secretary of State for Work and Pensions [2009] CSIH21, dated 17 March 2009. The lapse of time has been beyond what the parties were entitled to expect and I apologise for it.

The background

3. On 31 August 2006 the mother of Faith (born 8 March 2006) applied for a maintenance calculation against the father. In his maintenance enquiry form the father included an application for a variation of the rules on grounds including that just mentioned in respect of his daughter Raniah, who was resident in France. He supplied a copy of an order of the Paris Court of Appeal and a calendar of contact visits for 2006/07, both of which were unhelpfully omitted from the papers attached to the Secretary of State's written submission to the appeal tribunal. In his oral evidence to the appeal tribunal, which appears in general to have been accepted, the father said that Raniah was born in France and, although she currently had Irish nationality, would acquire French nationality if her residence continued. The father is an Irish national, currently working and (it appears throughout all relevant periods) residing in Great Britain. I think, if I have read the chairman's handwriting correctly, that the father said that he was not working in France when he met Raniah's mother, who is not a citizen of an EU Member State.
4. The maintenance calculation in the absence of any variation was correctly made in accordance with regulation 11 of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 (the MCSC Regulations) and the Child Support Act 1991 (all references to sections and Schedules from now on are to this Act).
5. The normal rule under Part I of Schedule 1 to the Act where the non-resident parent has one qualifying child is to take 15% of the non-resident parent's net income as the basic rate (paragraph 2(1)). If there are two qualifying children, then 20% is taken and if the children have different parents with care that amount is shared between them under paragraph 6. As carefully shown by the chairman in his statement of reasons, for the purposes of Part I of Schedule 1 references to "qualifying children" are to those qualifying children with respect to whom the maintenance calculation falls to be made (paragraph 10C(1)) and a calculation may only be made if an application is made or treated as made with respect to the child in question (section 11(1) and (2)). In addition, section 44(1) provides that there is jurisdiction to make a maintenance calculation with respect to a parent with care, non-resident parent or qualifying child only if the person in question is habitually resident in the United Kingdom (subject to exceptions for certain non-resident parents). If any one of those parties is not habitually resident, the condition in section 44(1) is not met. Here, no application for a maintenance calculation has been made in respect of Raniah and, if her mother or father had made one, there would have been no jurisdiction to make a calculation because both the mother and Raniah were habitually resident outside the United Kingdom, in France. Therefore, although Raniah came within the general meaning of "qualifying child" in section 3(1), because one of her parents was a non-resident parent, she was not a qualifying child for the purposes of Part I of Schedule 1 and the normal rules for maintenance calculations.
6. The further rule in paragraph 2(2) of Schedule 1 needs brief consideration. It requires a deduction from the basic rate under subparagraph (1) if the non-resident parent has a "relevant other child" or children. The main definition of that term in paragraph 10C(2) covers a child in respect of whom the non-resident parent or partner receives child benefit. That plainly did not apply to Raniah. Nor did the additional definition under regulation 10 of the MCSC Regulations, which extends only to some children cared for by local authorities.
7. It was therefore necessary to apply the special rule in regulation 11 of the MCSC Regulations (non-resident parent liable to pay maintenance under a maintenance order):

"11.--(1) Subject to paragraph (2), where the circumstances of a case are that--

(a) an application for child support maintenance is made or treated as made, as the case may be, with respect to a qualifying child and a non-resident parent; and

(b) an application for child support maintenance for a different child cannot be made under the Act but that non-resident parent is liable to pay maintenance for that child--

(i) under a maintenance order;

(ii) in accordance with the terms of an order made by a court outside Great Britain; or

(iii) under the legislation of a jurisdiction outside the United Kingdom,

the case shall be treated as a special case for the purpose of the Act.

(2) This regulation applies where the rate of child support maintenance payable is the basic rate or the reduced rate or has been calculated following agreement to a variation where the non-resident parent's liability would otherwise have been a flat rate or the nil rate.

(3) Where this regulation applies, subject to paragraph (5), the amount of child support maintenance payable by the non-resident parent shall be ascertained by--

(a) calculating the amount of maintenance payable as if the number of qualifying children of that parent included any children with respect to whom he is liable to make payments under the order referred to in paragraph (1)(b); and

(b) apportioning the amount so calculated between the qualifying children and the children with respect to whom he is liable to make payments under the order referred to in paragraph (1)(b),

and the amount payable shall be the amount apportioned to the qualifying children, and the amount payable to each person with care shall be that amount subject to the application of apportionment under paragraph 6 of Schedule 1 to the Act and the shared care provisions in paragraph 7 of Part I of that Schedule.

[(4) and (5) deal with shared care and payment of the minimum amount of maintenance]."

8. A "maintenance order" is defined as in section 8(11) so as to cover an order for the making or securing of periodical payments to or for the benefit of a child under various British legislative provisions. It was not until March 2005 that regulation 11 was amended so as also to apply to liabilities under foreign orders or legislation. In context, the liability under paragraph (1)(b)(iii) must refer to a liability that has been imposed by some body that is not a court under sub-paragraph (ii) (for instance, a tribunal or an administrative agency). It cannot extend to a mere general liability under a foreign law that a non-resident parent purports to be following by making payments of maintenance for a child. Then paragraph (3), which was not amended in March 2005, can make sense through its reference to an order being construed to include official decisions under paragraph (1)(b)(iii). I use "order" in that way in relation to regulation 11 from now on. The general point I take from the above is that the benefit of the special case under regulation 11 is limited to cases where there has been an official imposition of liability to maintain the other child, whether or not that necessarily involves an official recognition of paternity.
9. A further point relevant to the overall structure of the legislation is that regulation 11 only applies where an application for a maintenance calculation cannot be made under the child support legislation for the child in relation to whom there is liability to pay maintenance under an order. If such an application can be made, there is no special case and the ordinary percentages in paragraph 2(1) of Schedule 1 apply without deductions. The "remedy" for the non-resident parent in those circumstances is to make an application for a maintenance calculation with respect to the child under section 4, which does not have to come from the person or parent with care. Then that child will become a qualifying child within paragraphs 10C(1) and 2 of Schedule 1. The limit on the scope of regulation 11 and the availability of the "remedy" will be present in many cases where there are orders in existence. The existence of a foreign order (as for most British maintenance orders after 12 months, without going into the complicated rules) does not in itself prevent an application and a subsequent maintenance calculation being made. The main factor excluding the making of an application is therefore likely to be that one of the relevant parties is not habitually resident in the United Kingdom. For the avoidance of doubt, it must in my judgment be the case that if the circumstances are that CMEC/the Secretary of State would have no jurisdiction to make a maintenance calculation in response to an application, no application (ie no application requiring a response) can be made.
10. The circumstances of the present case therefore fell squarely within regulation 11(1). An application for a maintenance calculation could not be made in respect of Raniah because of her and her mother's habitual residence outside the United Kingdom. The father was liable to pay maintenance for her under the order made by a court outside Great Britain and under the legislation of a jurisdiction outside the United Kingdom (France). Accordingly, under regulation 11(3), the Schedule 1 calculation was to be made as if Raniah were a qualifying child, meaning that 20% of the father's net income was to be taken and then apportioned equally between Raniah and Faith, so that the share payable under the maintenance calculation for Faith was 10% of his net income.
11. As I understand it, the father does not challenge the application of regulation 11 in that way, although he has drawn attention to the fact that it applies regardless of the amount or method of calculation of the foreign court order and of whether that calculation allows any adjustment to be made for the non-resident parent's potential liability for another child or children under the British child support legislation.
12. The father's application for a variation for contact costs was initially refused merely on the misconceived ground that Raniah lived outside the jurisdiction. The father's appeal raised arguments based on EC law and human rights. The Secretary of State's written submission to the appeal tribunal failed to engage with those arguments and all that it said about regulation 10 of the Child Support (Variations) Regulations 2000 was that it only applied to contact with a qualifying child and Raniah was not a qualifying child, merely a "relevant non-resident child".
13. Regulation 10(1) of the Variations Regulations provides:

"(1) Subject to the following paragraphs of this regulation, and to regulation 15, the following costs incurred or reasonably expected to be incurred by the non-resident parent, whether in respect of himself or the qualifying child or both, for the purpose of maintaining contact with that child, shall constitute expenses for the purposes of paragraph 2(2) of Schedule 4B to the Act--

[(a) to (f) lists eligible travel, accommodation and incidental expenses]."

The effect of expenses falling within paragraph (1) is that the amount of the non-resident parent's net income for calculation purposes is reduced by the amount of the expenses, subject to a minimum threshold and an overall exclusion of expenses that were unreasonably incurred or unreasonably high (regulation 15). In regulation 1(2) "qualifying child" is defined, unless the context otherwise requires, as "the child with respect to whom the maintenance calculation falls to be made".

14. The power under which regulation 10 was made is in paragraph 2 of Schedule 4B:

"2.--(1) A variation applied for by a non-resident parent may be agreed with respect to special expenses.

(2) In this paragraph `special expenses' means the whole, or any amount above a prescribed amount, or any prescribed part, of expenses which fall within a prescribed description of expenses.

(3) In prescribing descriptions of expenses for the purposes of this paragraph, the Secretary of State may, in particular, make provision with respect to--

(a) costs incurred by a non-resident parent in maintaining contact with the child, or with any of the children, with respect to whom the application for a maintenance calculation has been made (or treated as made);

[(b) to (e) mention other categories of expenses]."

The appeal tribunal's decision

15. The appeal tribunal allowed the father's appeal on the application of regulation 10 of the Variations Regulations without having to rely on the EC law and human rights arguments. Its reasoning was as follows. Raniah was a qualifying child under the general meaning in section 3. The habitual residence of Raniah and her mother outside the United Kingdom did not alter that, as section 3 itself made no reference to such factors and section 44 was only to do with jurisdiction to make maintenance calculations, not with the meaning of words. That meaning therefore had to adopted in regulation 10, so that the father was entitled to a variation. The identification of the eligible amounts was remitted to the Secretary of State.

The Secretary of State's/CMEC's appeal to the Commissioner/Upper Tribunal

16. The Secretary of State/CMEC now appeals against the appeal tribunal's decision with my leave granted as a Child Support Commissioner on 6 May 2008, the application to the chairman of the appeal tribunal having been rejected as out of time.

The meaning of "qualifying child" in regulation 10 of the Variations Regulations

17. It is plain that the appeal tribunal went wrong in law by failing to have regard to the definition of "qualifying child" in regulation 1(2) of the Variations Regulations. Further, in my judgment the chairman's reasoning was undermined because that definition replaced and narrowed the general meaning for the specific purposes of the Variation Regulations, as was accepted as proper in principle, if authority is needed, in Secretary of State for Social Security v Maddocks, R(CS) 5/00, at paragraph 13. Raniah was not the child with respect to whom the maintenance calculation sought to be varied was made. The father's costs of maintaining contact with her were not for the purpose of maintaining contact with the qualifying child. Therefore, no variation could be imposed by the straightforward application of regulation 10 and the appeal tribunal's decision has to be set aside.
18. I must deal specifically with the father's submissions that the context of regulation 10 required that the regulation 1(2) definition not be applied, so that the general meaning adopted by the appeal tribunal was right. It must be stressed at the outset that under the terms of regulation 1(2) and accepted general principles of statutory interpretation an alternative definition must be required by the context.
19. To start with the regulation-making power, I agree with the appeal tribunal that it would not have been ultra vires for regulation 11 to have applied to costs of contact with any child of the non-resident parent, or possibly any child for whom a maintenance liability was officially recognised under regulation 11(1)(b) of the MCSC Regulations. Paragraph 2(2) of Schedule 4B provides almost unlimited power and the specific categories in paragraph 2(3) are merely examples of what the Secretary of State can prescribe in regulations. However, in my judgment the terms of paragraph 2(3)(a) are a powerful factor in establishing the legislative context. They do not refer to qualifying children, but refer directly to children with respect to whom an application for a maintenance calculation has been made. They are plainly restricted to the cost of maintaining contact with a child with respect to whom a maintenance calculation is to be made on a valid application. When regulation 10 of the Variations Regulations then uses the phrase "qualifying child", whose definition in regulation 1(2) achieves exactly the restriction of the example in paragraph 2(3)(a) of Schedule 4B, that points strongly against the adoption of any other meaning. It would require something particularly clear in the context to require another result.
20. I cannot find anything in the immediate context of the language of regulation 10 or the rest of the Variations Regulations. Regulation 10 makes perfect sense with "qualifying child" having the meaning in regulation 1(2), just as it would make perfect sense if it had the meaning contended for by the father. Nor can I see that the interaction with any other provisions of the Variations Regulations, for instance, regulation 23 on how a variation for special expenses affects the maintenance calculation or regulation 15 on thresholds and limits for special expenses, has an effect either way. It is agreed that, if variations were allowed for contact costs with a wider category of children, that would affect the amount of the non-resident parent's net weekly income to which the appropriate percentage would be applied for any qualifying children, subject to any apportionment under regulation 11(3) of the MCSC Regulations. That would be workable, but no more workable than the result of using the regulation 1(2) definition. The immediate legislative context is entirely neutral and so does not take the father any further forward.
21. That leaves the father's submissions that the effect of applying the regulation 1(2) definition in regulation 10 was so unfair, in breaching a principle accepted on behalf of the Secretary of State (and now the CMEC) that no one child should be favoured over another, and led to such anomalies within the child support scheme that that context required that the regulation 1(2) definition not be used. I confess to some difficulty in grasping just what unfairnesses and anomalies the father says are created. It seems to me that much of his submissions come back to the argument that the Variations Regulations ought to recognise that the costs of maintaining contact with other children (or even just regulation 11(1)(b) children) are just as legitimately and reasonably taken out of the income that a non-resident parent has available for the support of any children through the payment of child support maintenance as the costs of maintaining contact with a child with respect to whom a maintenance calculation is to be made. That is an argument that the Regulations ought to have been drafted differently. In my judgment it falls a long way short of establishing such an anomalous result that rejection of the regulation 1(2) definition is required.
22. The father also submitted that the requirements of EC law and/or the Human Rights Act 1998 established a context that did require that definition to be rejected. I prefer to deal directly with the question of the effect of those requirements on the rules that can be imposed in making a maintenance calculation.

The effect of EC law

23. With all due respect to the detail and scope of the father's submissions, especially in terms of the case-law referred to, I have eventually found it unnecessary to set all that out. Instead, I have focused on what seem to me the strongest points in his submissions, without going into great detail on the principles that I accept as applicable, and explained my conclusions on those points.
24. I accept, without having to trouble about whether the obligation arising from the making of a maintenance calculation is analogous to a tax or not, that the father is entitled to invoke the protections of Articles 12 and 18 of the EC Treaty in the context of Article 17 on citizenship of the Union. Article 12 contains the following provision:

"Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited."

Article 18(1) provides:

"Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect."

25. Although the regulation of obligations to maintain children as between their parents does not fall directly within the scope of application of the Treaty, it is now firmly established that Member States must exercise their powers on matters within their own competence which are not purely internal subject to those fundamental freedoms. See, in relation to both Article 12 and Article 18, paragraphs 17 to 19 of the judgment of the European Court of Justice (ECJ) in Schempp v Finanzamt München V (Case C-403/03) [2005] ECR I-6421:

"17. As the Court has already held, Article 17(2) EC attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right to rely on Article 12 EC in all situations falling within the material scope of Community law (see Case C-85/96 Martinez Sala [1998] ECR I-2691, paragraph 62).

18. Those situations include those involving the exercise of the fundamental freedoms guaranteed by the Treaty and those involving the right to move and reside within the territory of the Member States, as conferred by Article 18 EC (Bidar [(Case 209/03) [2005] ECR I-2119], paragraph 33).

19. While in the present state of Community law direct taxation falls within the competence of the Member States, the latter must nonetheless exercise that competence in accordance with Community law, in particular the provisions of the Treaty concerning the right of every citizen of the Union to move and reside freely within the territory of the Member States, and therefore to avoid any overt or covert discrimination on the basis of nationality (see, to that effect, Case C-273/93 Schumacker [1995] ECR I-225, paragraphs 21 and 26, and Case C-385/00 De Groot [2002] ECR I-11819, paragraph 75)."

Those principles have been confirmed relatively recently in Schwarz and Gootjes-Schwarz v Finanzamt Bergisch Gladbach (Case C-76/05) [2007] ECR I-6849, mentioned further below, and in the wide-ranging discussion by Advocate General Colomer in his Opinion in Petersen v Arbeitsemarktservice Niederösterreich (Case C-228/07) [2008] ECR I-0000.

26. I would be inclined to say that the circumstances of the present case fall within the scope ratione materiae of the EC Treaty, through the residence of Raniah and her mother in France, as well as the nationality of the parties, taking the case outside what could be described as a purely internal situation. As I have concluded below that there has been no breach of either Article 12 or Article 18, I need not explore here whether a narrower approach, restricted to cases where a relevant person has moved residence between Member States, should be taken.
27. In relation to Article 12, the question then is whether the Variations Regulations involve overt or covert discrimination on the ground of nationality in a way that requires regulation 10 to be applied to the father as if Raniah were a qualifying child. The answer must be no. As submitted by Mr Buley for CMEC, the operation and effect of regulation 10 involve no difference of treatment on the ground of the non-resident parent's nationality. It would have made no difference to the result if the father here had had British nationality instead of Irish, or had had any other nationality. The factor that made the difference was that Raniah could not be a qualifying child as defined for the purposes of regulation 10 because of her and her mother's residence in France. The existence of the French court order was not in substance a differentiating factor, because that in itself would not have prevented the father from making an application for a maintenance calculation for Raniah, thus having his "remedy" in his own hands. It was her and her mother's residence that knocked out that remedy.
28. I suppose that it could be argued that a non-resident parent living here who was a national of a Member State other than the United Kingdom would be more likely to have a child or a parent with care resident in another Member State in addition to a child resident here. It could then be said that there was covert discrimination on grounds of nationality in comparison with a non-resident parent who had a non-qualifying child elsewhere in the United Kingdom. That seems to me a very flimsy likelihood. On the facts of the present case, there is nothing in the father's Irish nationality to make it any more likely that he would have a child and her mother in France than if he had been a British national.
29. And even if that were accepted as a covert discrimination, the difference in treatment has to carefully analysed. The existence of a child such as Raniah, the subject of a foreign court order, has the same effect on the father's liability under the ordinary maintenance calculation with respect to Faith as if she had been a qualifying child. And in some respects the father is in a better position than if he had a child in the United Kingdom with a British court order, because (subject to the habitual residence conditions) he can make an application for a calculation without waiting for 12 months to pass after the making of the order, as for British orders. Despite the father's arguments about unfairness and the inequity of treating children differently, in my judgment CMEC would have little difficulty in justifying the difference in treatment as based on objective considerations of public interest independent of nationality and as proportionate to that legitimate objective. That objective would be the primary focus on the support of children resident in the United Kingdom. The effect on the income of the non-resident parent available for the support of children in the United Kingdom of an official liability for a child resident abroad has been recognised in regulation 11 of the MCSC Regulations. It is in my judgment well within the bounds of proportionality for the United Kingdom to say that in such cases (or in cases where the foreign liability falls outside regulation 11) no further provision should be made for adjusting the amount of the non-resident parent's income regarded as available for support of children in the United Kingdom by allowing a variation for costs of contact with the child abroad. Given the wide range of circumstances likely to be covered, a "rough justice" approach of simply excluding consideration of contact costs could be taken.
30. I can see no way in which any argument could succeed on the basis that children and parents with care who are nationals of other Member States are more likely to be affected by the absence of provision for contact costs. Even if such an effect could be shown, it is not clear that someone in the situation of the father here could rely on it. The situation is different from that in Schwarz, where the absence of a reduction of the parents' income tax liability in Germany was accepted as disadvantaging the children who had been sent to a private school in Scotland. Here there is not the same community of interest within the family. And in any case, there would be objective justification as above.
31. In relation to Article 18, there is an initial problem in the father's submissions. This is that there appears not to have been any movement between Member States sufficient to support any argument that someone has been made worse off than if they had not availed themselves of that freedom. Raniah's mother, who has no fundamental EC rights as a non-EU national, appears to have been (habitually) resident in France throughout. Raniah appears to have been born in France and continuously thereafter to have been habitually resident there through her mother's habitual residence. The father was not exercising any freedom of movement as a worker when he met Raniah's mother in France. So far as I know, he did not at that time become habitually resident in France. But even if he was there for more than a merely transient visit and that is good enough (and I am conscious that I did not explore the history of this matter at the oral hearing), it seems to me that he cannot establish that he has been disadvantaged in relation to his rights and obligations under the child support scheme merely by reason of having exercised his Article 18 right to move freely between Member States. The decisive factor was not the father's movement to France and back, if there was a sufficient movement, but the subsequent continued residence of Raniah and her mother in France, with the consequence that Raniah could not come within the definition of qualifying child for the purposes of the Variations Regulations.
32. I entirely accept and apply the way in which the principles were expressed by the ECJ in paragraphs 88 to 93 of Schwarz:

"88. Inasmuch as a citizen of the Union must be granted in all Member States the same treatment in law as that accorded to nationals of those Member States who find themselves in the same situation, it would be incompatible with the right to freedom of movement were a citizen to receive in the Member State of which he is a national treatment less favourable than he would enjoy if he had not availed himself of the opportunities offered by the EC Treaty in relation to freedom of movement (D'Hoop [v Office National de l'Emploi [2002] ECR I-6191], paragraph 30; and Pusa [v Osuuspankkien Keskinainen Vakuutusyhtio (C-224/02) [2004] ECR I-5763], paragraph 18).

89. Those opportunities could not be fully effective if a national of a Member State could be deterred from availing himself of them by obstacles placed in the way of his stay in the host Member State by legislation in his State of origin penalising the mere fact that he has used them (see, to that effect, Case C-370/90 R v Immigration Appeal Tribunal, ex parte Secretary of State for the Home Department (Singh) [1992] ECR I-4265, paragraph 23; D'Hoop, paragraph 31; Pusa, paragraph 19; and Case C-406/04 De Cuyper [v Office National de l'Emploi (ONEM) [2006] ECR I-6947], paragraph 39).

90. The Schwarz children, by attending an educational establishment situated in another Member State, used their right of free movement. ...

93. National legislation which places at a disadvantage certain of the nationals of the Member State concerned simply because they have exercised their freedom to move and reside in another Member State is a restriction on the freedoms conferred by Article 18(1) EC on every citizen of the Union."

33. There can be no doubt that the father is not precluded from relying on those principles in the present case by the fact that he is an Irish national (without, so far as I know, British nationality). The principles must apply to legislation of the Member State where the citizen of the Union was resident before moving and to which he has returned, whether or not he is a national of that State. Having accepted the principles as stated in Schwarz, there is no need to set out their earlier statement in D'Hoop and De Cuyper, which had been particularly relied on by the father. The application of the principles to the facts in those cases does not assist in the present case. However, for the reason given in paragraph 30, I conclude that the father has not been disadvantaged in a way that had restricted or rendered less than fully effective his Article 18(1) rights.
34. In addition, if am wrong in that conclusion, the restriction would be objectively justified in a proportionate way, for the reason given in paragraph 28 above.
35. The operation of regulation 10 of the Variations Regulations as construed above is therefore not inconsistent with any principles of EC law and to be disapplied. Neither can those principles form part of any context indicating that the definition of "qualifying child" in regulation 1(2) should not be applied in regulation 10.

The Human Rights Act 1998

36. The father relied in particular on Article 14 (discrimination) of the European Convention on Human Rights in conjunction with Article 8 (respect for private and family life). He had a mountain to climb in the light of the existing case-law authority, including a number of decisions of the House of Lords. The general effect of that authority has recently been surveyed and summarised by Cranston J in Treharne v Secretary of State for Work and Pensions [2008] EWHC 3222 (QB) [2009] 1 Family Law Reports 853, a case that was not cited to me and has so far not been mentioned in these proceedings. With all due respect to the father's arguments and citation of authority, I shall not go through all, or even a selection of the case-law, but shortly express my conclusions.
37. First, I have some doubt as to how far the father can rely on his actual current relationship with either Raniah or Faith and/or their respective mothers as constituting part of his family life, respect for which is protected by Article 8. In M v Secretary of State for Work and Pensions [2006] UKHL 11 [2006] 2 AC 91, also reported as R(CS) 4/06, the majority of the members of the House of Lords agreed with the Court of Appeal in that case that in the context of a child support maintenance assessment a divorced mother's relationship with the children of the marriage, who lived in the main with her ex-husband, did not fall within the ambit of Article 8. Lord Walker of Gestingthorpe, who gave the most extensive opinion, put it this way at [85]:

"all three members of the Court of Appeal rejected the argument that the method of calculation of Ms M's maintenance assessment under the 1991 Act and the Regulations fell within the ambit of the right to respect for the family relationship between Ms M and her two children by her marriage to her ex-husband [references omitted]. In my opinion they were right to do so. Ms M is of course entitled to respect for her continuing relationship with her children. But she is not complaining of being deprived of all contact with her children, or of being deprived of contact with them at her home where her same-sex partner lives. On the contrary, they spend part of the time with her at her home. She is complaining because she considers that she should be paying less towards their maintenance. As Neuberger LJ said, at para 99 [of [2006] QB 380], her Article 14 complaint has nothing to do with respect for her relationship with her children."

Lord Mance said this at [125]:

"In the present case, Ms M was entitled to respect for such continuing family life as she had with her children as well as, possibly, with her former partner. But the [child support] regime as a whole was directed at supporting her children in the new family in which her children lived; while the particular aspects of the regime about which she complains were directed at any new relationship she formed. If these aspects (or indeed the whole regime) had any bearing at all on her continuing family life with her children or former partner, the link could only be of the most indirect and tenuous nature. I agree with the Court of Appeal's unanimous rejection of the case based on her family life with her children and former partner."

38. In my judgment, the father here at most can be in no better position than Ms M. His complaint is not that he has been prevented by the rules of the Variations Regulations from having contact with Raniah as often as he otherwise would have had. He does not complain of an interference with his family life with a new family. His complaint is that he is not allowed the costs of that contact, within the prescribed limits, as a deduction from the income that is taken into account in calculating what he is liable to pay for Faith. And his link with a family life with Raniah is distinctly more tenuous and indirect than was that of Ms M with her children by her ex-husband. Those children spent two and a half days a week a week with her in her and her same-sex partner's home. In the present case, the father's only contacts with Raniah are on his visits to her in Paris. If he can be said to have a family life with her at all, the link was so tenuous and indirect as not to bring the circumstances within the ambit of Article 8.
39. I find that the father gains no assistance from EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64 [2008] 3 WLR 931, particularly mentioned at the oral hearing. It is true that it was recognised there that, as it was put by Lord Hope at [6], "the mutual enjoyment by parent and child of each other's company is a fundamental element of family life". And Lord Bingham at [31] spoke of the right to care for one's child as a fundamental element of an elementary human right. But Lord Bingham also spoke of the importance of the circumstances of particular cases and of the need to look at the family life that was being enjoyed at the relevant time. EM was a case where the child had been living with his mother to the age of 12. She was resisting her removal from this country to Lebanon on the ground that under the Shari'a law in operation there custody of her son would pass to his father or another male member of the family, leaving her merely with rights of visitation. Thus, EM currently had a family life in the fullest sense with her son and was relying on the potential destruction of a fundamental aspect of that life as demonstrating a real risk of a flagrant breach of Article 8 if she were removed to Lebanon. That is completely different from the present case, where the only family life that the father actually had with Raniah (although no doubt he would wish for more involvement) was in the form of his visits to her while she lived with her mother in France.
40. Thus, I do not need to discuss all the other authorities helpfully summarised in Treharne, and to an effect that points against the father showing that his case was within the ambit of Article 8. Neither Plumb v Secretary of State for Work and Pensions [2002] EWHC 1125 (Admin) nor R (on the application of Qazi) v Secretary of State for Work and Pensions [2004] EWHC 1331 (Admin), reported as R(CS) 5/04, helps the father, because in both cases the engagement of Article 8 was merely assumed in dismissing human rights challenges at other points in the argument. If I were wrong about the ambit of Article 8 and he could in principle invoke Article 14, there is in my judgment no discrimination that is contrary to that provision. At the oral hearing, the father put the discrimination in terms of ethnic origin. He submitted that the rules in the Variations Regulations would be more likely to adversely affect someone born abroad. But in order to rely on the Human Rights Act 1998 the father has to show that he himself has been discriminated against. I find it impossible to accept that there had been discrimination on the ground of his own nationality or ethnic origin or on the ground being a parent of a child born and resident in a country outside the United Kingdom, even if that could amount to a status or personal characteristic for the purpose of Article 14. And if there had been any difference in treatment on a prohibited ground, it would have been justified (see paragraph 28 above and paragraph 45 of Qazi).
41. In so far as the father was also relying on Article 1 of Protocol 1 to the European Convention, in conjunction with Article 14, such an argument is doomed to failure in the light of the House of Lords' decision in M (see in particular Lord Walker at [89] and [90]). Leaving him with less money than if a variation had been made to take account of contact costs did not engage Article 1. In HW v Secretary of State for Work and Pensions, the engagement of that Article was merely assumed on a concession for the purposes of argument and the case for discrimination against a particular class of non-resident parents was dismissed in short order.

Conclusion

42. Accordingly, there is nothing in EC law or the Human Rights Act 1998 to affect the interpretation of the Variations Regulations as set out in paragraphs 16 to 20 above. The appeal tribunal's conclusion was inconsistent with that interpretation, as well as its reasons being inadequate in failing to deal with the definition in regulation 1(2). Its decision must therefore be set aside as involving an error of law. The Upper Tribunal's substituted decision on the father's appeal against the Secretary of State's decision dated 20 October 2006 must be to disallow that appeal, as set out at the head of this document.

(Signed on original): J Mesher

Judge of the Upper Tribunal

Date: 11 June 2009