Upper Tribunal (Administrative Appeals Chamber)

[2009] UKUT 84 (AAC) (12 May 2009)
Child support
jurisdiction

IN THE UPPER TRIBUNAL File No: CCS 3574/08

Administrative Appeals Chamber

12 May 2009

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

CHILD SUPPORT ACTS 1991-2000

APPEAL FROM DECISION OF APPEAL TRIBUNAL

DECISION OF THE UPPER TRIBUNAL

Judge: P L Howell QC


 


IN THE UPPER TRIBUNAL File No: CCS 3574/08

Administrative Appeals Chamber

12 May 2009

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

CHILD SUPPORT ACTS 1991-2000

APPEAL FROM DECISION OF APPEAL TRIBUNAL

Appellant: [the absent parent]

Respondents: (1) Secretary of State (CMEC)

(2) [the parent with care]

Appeal Tribunal: Cambridge

Tribunal case ref: 140/06/00105

Tribunal date: 11 August 2008 (reasons issued 11.08.08)

DECISION OF THE UPPER TRIBUNAL

The absent parent's appeal is dismissed and the decision of the appeal tribunal given on 11 August 2008 confirmed.

REASONS

Mr P L Howell QC:

1. This appeal by the absent parent is dismissed, as in my judgment there was no material error of law in the decision of the Cambridge appeal tribunal on 11 August 2008 (Mr D Turrell, chairman, sitting alone) that the absent parent had not ceased to be habitually resident in the United Kingdom in April 1998 when she went to take up temporary, and in the event short-lived, employment as a holiday representative in Spain.
2. The absent parent in this case is a woman now aged 37. She is the mother of the qualifying child whose maintenance is at issue, a boy now aged 14 who at all material times has lived with his father, the parent with care. When the marriage failed and his mother left in 1997, he was only three. Since then according to his father she has paid nothing towards his maintenance despite being in employment while the two of them were left to subsist on benefit.
3. On 16 January 1998 a child support assessment was made under which she became legally liable to pay maintenance for her son, at the rate of £49.74 per week from the effective date of 28 November 1997 onwards. That assessment and liability remained in force though any attempts there were at enforcing it seem to have been unsuccessful.
4. That remained the position for some years. In February 1998 there is a record of the absent parent having told the Child Support Agency on the telephone that she was moving abroad in the next few weeks. Subsequently on 30 April 1998 her father telephoned the Agency saying she had left the country, but without apparently being able to give any information for how long, or even where she was: see the telephone records at pages 10 to 11. There was no information in the papers or evidence before the tribunal as to what happened to the case in the intervening years until 2006. In that year the original 1998 assessment of her liability remained on foot but she was complaining in correspondence that it ought to have been terminated from 13 April 1998, as on that date she had left to take up a job as a holiday representative at a resort in Spain and was no longer within the child support jurisdiction.
5. Her complaint was taken as an application for the (still subsisting) child support assessment to be superseded or cancelled, and on 19 June 2006 the Secretary of State gave a decision refusing to do so, on the ground that her absence from the United Kingdom working for a UK tour operator had only been a short one. (The evidence showed she had returned to the UK on 15 August 1998, after which she remained here permanently). In those circumstances the determination was that she had remained habitually resident in this country and subject to the child support jurisdiction without any break: pages 8 to 9. Her appeal to the tribunal was against that decision.
6. An earlier tribunal decision in her favour on the habitual residence issue on 17 November 2006 had to be set aside by the Commissioner for error of law, and a complete rehearing by a different tribunal was directed: see the decision of 18 June 2008 on file CCS 3457/07 at pages 94 to 98. This present appeal is against the decision of the appeal tribunal on the rehearing on 11 August 2008 when the chairman determined on the basis of a complete reconsideration of the evidence that the facts did not show the absent parent to have ceased being habitually resident in the United Kingdom when she left to take up her job in Spain in April 1998, and accordingly the Secretary of State's decision not to supersede or cancel her child support liability had been the correct one.
7. As the chairman noted in his combined decision notice and statement of reasons dated 11 August 2008 at pages 102 to 104, it was not in dispute that if the absent parent had ceased to be habitually resident in the UK on her departure the child support maintenance assessment of 1998 and her liability under it had as a matter of law to be closed: regulation 7, Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 SI No. 2645, as in force at the material time, required an assessment to be cancelled in such circumstances. Accordingly the sole live issue was whether she had in fact ceased to be so resident. The chairman summarised the material facts about the absent parent's four-month absence from the United Kingdom during 1998 as follows:

"This case stretches back [to] 1997 when [the absent parent's] then marriage failed and she formed the intent to move to Spain for a fresh start in a country where she spoke the language and enjoyed the culture. She found a job with Thomson Holidays as a rep in Spain and left the country on April 13^th with the intention of starting afresh. She left some possessions in a friend's loft and utilizing her status as a Thompson employee utilized the absence of a weight restriction on staff moving out to take up holiday rep positions to take the bulk of her possessions with her and gave up her accommodation. She retained a UK Bank account into which her salary was paid (her local allowance was paid in pesetas locally) and from her UK Bank account she serviced debts of the marriage. Her stay in Spain did not get off to a good start and she had to be hospitalised due to hypertension and after she recovered from that her resort start[ed] to experience violent attacks on reps and their accommodation which left her uneasy. In consequence she returned to her friend with whom she had stored the remnants of her possessions rather than finish her season and find a winter holiday representative's job which had been her initial plan. She claimed benefit on her return but prior to interview she found temporary work and has remained in the UK ever since."

8. I would add that according to the evidence before the previous tribunal (page 31) the job the absent parent had been offered was for the summer season only. As recorded in the chairman's contemporaneous note of her evidence at the hearing on 11 August 2008 she described it as a "stepping stone to living abroad". She had continued to pay UK national insurance contributions on the salary she received here and had paid no Spanish taxes. She had signed on for benefit when she returned, on the normal basis for persons habitually resident in this country, and had not even been asked about her habitual residence at that time.
9. The chairman directed himself as to the relevant law and expressed the conclusions to which this led him on the facts and evidence as follows:

"At today's hearing the CSA adopted a non combative mode and submitted that the issue turned on the appellant's intent when she departed and in Re J ( A minor) (Abduction: Custody Rights) [1990] 2 AC 562 Lord Bridge of Harwich observed that a person might cease to be habitually resident in a day if they left a country with a settled intention not to return even if it would take time to establish habitual residence in the country of choice. [The absent parent] says her case falls four square into the Lord Bridge analysis.

Mr Commissioner Bano in remitting this case from an earlier tribunal however directed everybody's attention to two Commissioner's decisions (R (CS) 5/96 and CSCS/06/2006) which put a considerable gloss on Lord Bridge's analysis. In R (CS) 5/96 ... Mr Commissioner Rice stated at paragraph 9 the acid test in the child support context namely: '……. the purpose underlying the child support legislation is the social need to require absent parents to maintain, or contribute to the maintenance of, their children. In determining as a question of fact whether in the above context a person has ceased to be habitually resident in this country, it appears to me that emphasis should be put on factors directed to establishing the nature and degree of his past and continuing connection with this country.' The actual case being considered related to a civil servant who had extended an overseas posting who did intend, eventually, to return to the UK. In CSCS/06/06 Mrs Commissioner Parker summarized Commissioner Rice's analysis pithily stating that 'there must as a minimum be evidence that a person has 'burned his boats' with respect to continuing residence in this country before it can be said that residence here has ceased to be habitual.'

Unusually for a habitual residence case the tribunal is considering a decision made comparatively recently about events a decade ago. The tribunal had no difficulty in accepting that the appellant on departure had left with the intention of setting up residence in temporary work related accommodation. The nature of her employment and the marriage debts meant that she retained a British bank account, she had left some limited possessions [behind], her family links (albeit weak or non existent) were in the UK and at the first sign of trouble and unease she returned to her friend in the UK and has remained ever since. Given the entire history of the 4 month absence the tribunal today cannot conclude that it satisfied on the balance of probabilities that the appellant had left with a 'settled' intention to leave or had burnt her boats. In this case her 'boats' following the failure of her marriage were minimal to start with but she turned to her UK based friend when she felt uneasy with remaining in Spain after the attacks on reps and their homes. She says she had nowhere else to go but she had the option to remain and tough it out but she chose to return to the UK and chose to remain here.

Today's tribunal considers that the appellant went to Spain on a 'suck it and see' basis and when it was not the positive experience she had hoped for she came back. The tribunal takes this global view and does not restrict itself to the stated intent at the point of departure because post departure conduct is clearly relevant to deciding on how deep rooted the intent was. Clearly if the appellant herself had been the victim of violent crime there would have been a significant adverse event to undermine a settled intent but in this case it was a fear of becoming a possible victim and that does contradict the existence of a settled intent especially as 'Crime on the Costas' was a regular feature in the nineties redtops (tabloids) ..

In consequence and despite the tacit support of the appellant's appeal by the CSA today the appeal was dismissed."

10. The absent parent appeals, with the leave of the chairman, on the grounds that (1) the chairman based his decision at least in part on an unjustified assumption that she decided to abandon her job at the resort and return to the United Kingdom merely because of attacks on other representatives, when in fact she had suffered one such assault herself; (2) too much weight had been placed on the decisions cited, and other relevant decisions on habitual residence had not been referred to; (3) other facts such as that she had gained Spanish citizenship and had made efforts to secure other work which would have been available to her had she not decided to return to the United Kingdom had not been mentioned; (4) the chairman's conclusion relying on her continuing links with the UK had been unreasonable when balanced against her intentions at the time of leaving to make a settled life overseas; and (5) on her return to the UK she had not signed on immediately but only after a two week period of reflection: see her notice of appeal and grounds at pages 112 to 119.
11. I agree with the submission on behalf of the Child Maintenance and Enforcement Commission by Mr S A Powell dated 26 January 2009 at pages 121 to 124 that there is nothing in the claimant's first two main grounds of appeal, which are eseentially that the chairman's decision was invalidated by his not knowing the absent parent had herself suffered an assault, and by his failing to give effect to relevant authority on the meaning of habitual residence. As that submission points out the claimant's evidence to the tribunal (on both occasions) had been that it was the general situation in the Spanish resort, and in particular a spate of attacks on representatives there, that caused her to decide against staying any longer and as she put it herself to "come back". At no point did she make any mention of any assault on herself as having been the one factor that precipitated a complete change of plan out of the blue, and I do not think the chairman's comment that this was not such a case, or his acceptance of what the absent parent, who is obviously an educated and articulate young woman, told him about her actual reasons for coming back can fairly be criticised on the material before him.
12. I specifically reject the contention that it could have been an error of law, or breach of inquisitorial duty, on the part of the tribunal not to take it on itself to probe further or subject the absent parent to its own speculative questioning about her personal experiences at the resort beyond what she volunteered in her own evidence. It might fairly have been criticised as unnecessary and intrusive for it to have done so.
13. Nor in my judgment is it arguable that the tribunal misdirected itself or otherwise erred in law in approaching the facts of this case on the basis of what was said by the Commissioners in the reported case of R(CS) 5/96 and in CSCS/06/06, in determining whether an existing habitual residence in this country has been shown to have been abandoned on departure for what turns out to be a short period of temporary absence. As has been reiterated many times questions of whether a person's habitual residence in one place is shown to have ceased, like those of whether or when he or she has established habitual residence in some fresh place, are questions of fact depending on the evidence and circumstances of each individual case. I can see no arguable error of law in the chairman not having referred expressly to more authorities than he did, or specifically in not referring to the decision of another Commissioner (on very different facts) in CCS 3818/06 as suggested by the absent parent in her grounds of appeal. Nothing said by the Commissioner in that case as to the general principles to be applied was in any way inconsistent with the authorities the chairman here did refer to, and by which he was guided. The individual result in terms of the facts of that case is of course of little assistance, and certainly no binding authority, for others.
14. The remaining grounds of appeal take issue with the way the chairman applied the established principles of R(CS) 5/96 to the facts and evidence in the present case, and with his overall conclusion that what happened here did not show the absent parent's previous established habitual residence in this country (where her family and of course her own three year old son remained, and to which she immediately reverted on failing to find any satisfactory basis for a settled life overseas) had been abandoned in the sense necessary to remove her from the child support jurisdiction.
15. I have carefully considered these arguments, especially in view of the support given to the appeal on behalf of the CMEC on this aspect, but I have not been persuaded that any material error of law in the tribunal's reasoning or in its overall conclusion has been shown, such as to warrant allowing this appeal or setting its decision aside.
16. It should be emphasised yet again that questions of habitual residence are questions of fact and the expression itself is not a term of art. It is in my judgment a mistake to take the many attempts that have now been made in the cases at illustrating and illuminating the concept, and the way it applies to particular facts, as if they purported to lay down universal rules of law or of legal construction, which they clearly do not and cannot. For that reason I think it better to avoid adding to such attempts yet further myself, and I do not think there is anything material or useful to be added so far as the guiding principles to be applied in a case such as the present are concerned to what was said by the Commissioners in R(CS) 5/96 and CSCS/06/06 to both of which the tribunal in this case referred expressly and plainly had regard.
17. I can see no valid basis for any suggestion of the tribunal having misdirected itself as to the tests to be applied or the material questions to be looked at in determining whether this absent parent's established habitual residence in this country had been terminated by her brief absence, and I therefore agree with the submission on behalf of the CMEC that its decision involved no error of law so far as the relevant legal principles are concerned. I do not however agree that it is fair to conclude that when it came to analysing the evidence and finding the facts in this case the tribunal lost sight of those principles or failed to apply them; or that its statement of reasons is inadequate to show whether it did so or explain the conclusion reached.
18. Contrary to the suggestion made, it was in my judgment entirely proper, and highly relevant, for the tribunal to have taken account of what happened when the claimant's initial "stepping stone" plan of a short-term job overseas at a holiday resort, embarked on at a time when her own life was obviously and understandably in an unsettled and volatile state following the break up of her marriage, came up against reality. Plainly any reasonable person would regard what she did in those circumstances as having "headed home" (as she said herself, to take stock), and plainly in my judgment any reasonable tribunal would have taken that into account as reinforcing the initial impression from her own evidence that the "stepping stone" summer job overseas had been on a trial basis, falling well short of showing any immediate or actual abandonment of her established habitual residence in April 1998 when she merely took the first step.
19. In my judgment there was ample material in the evidence from which any reasonable tribunal could have concluded, as this one did, that her move abroad at this time was provisional, and as later events proved, anything but "settled" in the sense necessary to demonstrate abandonment of her habitual residence here. Although such matters are always for the tribunal of fact seeing and hearing the evidence I have to say that for my part I find it difficult to see how any other conclusion could sensibly have been reached on the actual facts and undisputed evidence recorded here.
20. Nor in my judgment was it an error of law on the part of the chairman to omit further reference in his statement of reasons to the facts and evidence which caused him to decide the case as he did. The statement gives a clear and succinct, though admittedly not over-elaborately detailed, explanation of the material facts in the case as the chairman found them and although no doubt as with almost all statements of reasons some points might have been better expressed or expounded in more detail or at greater length, the result here gives in my judgment a fair and reasonable explanation of the outcome of the case and the factual findings and reasons which led to it. That in my judgment was sufficient for the purposes of the procedure rules, and of their underlying purpose which is to enable the parties and an appellate court or tribunal to discern that the evidence in the case has been fairly considered and there has been no material misdirection as to the principles of law applied. Again in this context, the fact that particular lines of factual inquiry or points to be considered have been emphasised in the "guidance" contained in other cases when remitting habitual residence issues for rehearing does not turn such observations into binding rules of law to which lip-service has to be paid in every factual inquiry in every case. In each case it is a matter for the good sense and judgment of the tribunal dealing with the facts and evidence in the particular case before it.
21. For those reasons, this appeal is dismissed.

12 May 2009

_________________________________