England and Wales High Court (Administrative Court) Decisions

“On 25/10/97 a Chair gave comprehensive Directions addressed to the Secretary of State and the parties. Mr Denson failed to comply with these Directions within the time specified or by the eventual hearing date. On 25^th March 1998 the matter came before a CSAT for decision. The Directions Order stated that adverse inferences might be drawn from a failure to comply. Mrs S produced a great deal of documentation at that time, Mr Denson produced nothing saying he had not been well. To allow the parties an opportunity for consideration of the new papers produced and to give Mr Denson a longer period to comply with the Directions the hearing was adjourned to the 12^th June 1998, same tribunal. A Direction was given to issue a witness summons to Ms T in her capacity as Company Secretary of Deka Gifts Ltd to produce the documents itemised. She applied to have the summons once issued Set Aside, this was refused as was her subsequent application for leave to appeal against that refusal. She did not file the documents referred to in connection with her application or subsequently. She did not attend the hearing nor did Mr Denson.

On the morning of the hearing a telephone call was received on Mr Denson’s behalf requesting a Postponement as he was unwell, a migraine attack, and the doctor awaited. The Chair refused the postponement.

In the presence of the Presenting Officer and Mrs S, the tribunal raised the issue of Mr Denson’s absence and considered whether or not the hearing should be adjourned. Mrs S indicated that she had seen Mr Denson the day before and he seemed well, he had no history of migraine attacks and she said that a friend of his had done a similar thing in the context of a court appearance. She was not surprised by his absence which she regarded as intentional. She pointed out that he had still failed to comply with the Directions and that Ms T had ignored the Witness Summons. The CSO was content to proceed in Mr Denson’s absence. The parties left the room and the tribunal considered the situation and decided to proceed. It noted the history of delay and evasion and the failure of Ms T to attend or to send in the papers she was required to produce. It concluded that the alleged migraine attack was the sort of illness that can be relied on to persuade a doctor to issue a certificate and that the whole scenario was unconvincing. It concluded that there was probably sufficient information available for a proper decision to be reached; if necessary the question of adjournment could be reconsidered in the course of the hearing. In the event no adjournment was found necessary.”

“Mr Denson has had the opportunity to account for his financial circumstances but has wilfully declined to do so in order to make the situation as difficult as possible for the CSA and Mrs S in the hope that he can avoid liability to support his children.”

“I may add that such limited interchange as the court had with Mr Denson today reinforced me in that view. This Tribunal were perfectly entitled to say that enough was enough. The interests of others besides this applicant were at stake. The applicant could in those circumstances properly be adjudged to be a scheming parent playing the system.”

i) A decision dated either 20 November 2000 or 16 January 2001 (the precise date is immaterial) to apply for a liability order under section 33(2) of the Act.

ii) A decision dated 10 May 2001 (and confirmed on 18 May 2001) refusing to review, in accordance with regulations 32A-32B of the Child Support Departure Direction and Consequential Amendments Regulations 1996, SI 1996/2907, the CSAT’s decision on 12 June 1998.

I propose to deal first with the second of these two decisions.

“The Commission notes that the relevant legislation, insofar as it seeks to regulate the assessment of maintenance payments from absent parents, does not by its very nature affect family life. Nor, in the light of the factual information supplied by the applicant regarding his income and expenses, including the cost of visiting his children every fortnight, does the Commission consider that the applicant has shown that the effect of the operation of the legislation in his case is of such a nature and degree as to disclose any lack of respect for his rights under Article 8. In the circumstances, the Commission does not therefore find it necessary to go on to consider whether, had there been an interference, it would have been justified within the meaning of Article 8-2 of the Convention.”

“The Commission recalls its recent decision in [Logan] where it held that the relevant Child Support legislation does not by its very nature affect family life. Further, it recalls that the applicant’s complaints must be considered in the context of the financial obligations that are acknowledged to exist between the applicant and his children.”

“In that regard, the Commission recalls that the legislation about which the applicant complains is a practical expression of a policy relating to the economic responsibilities of parents who do not have custody of their children. Essentially it relates to the payment by an absent parent to the parent with care of the child[ren] for the purposes of their maintenance. The relevant legislation compels an absent parent to pay money to the parent with custody of the child. The Commission observes that in all Contracting States to the Convention, the legislation governing private law relations between individuals includes rules which determine the effects of these legal relations with respect to property, and in some cases, compel a person to surrender a possession to another. Examples include the division of inherited property, the division of matrimonial estates, and in particular the seizure and sale of property in the course of execution. This type of rule, which is essential in any liberal society, cannot in principle be considered contrary to Article 1 of Protocol No 1. However, the Commission must nevertheless make sure, that in determining the effect on property of legal relations between individuals, the law does not create such inequality that one person could be arbitrarily deprived of property in favour of another.”

“As regards whether the relevant measures are in the public interest, the Commission notes that while one specific aim of the measures is to make absent parents, who are able to do so, pay for the maintenance requirements of their children, the measures are not intended solely for the benefit of the children but for the benefit of the tax-payer in general who bears the burden of paying for single parents who claim social welfare benefits. In many cases therefore, while the children are no better off since social welfare benefits are removed and replaced with payments by the absent parent, the burden on the tax-payer in general is reduced. The Commission considers that the aims of reducing taxation and increasing parental responsibility must be considered as in the public interest for the purposes of Article 1 of Protocol No 1. The Commission further recalls that, while a Contracting State enjoys a certain margin of appreciation as regards interference with the peaceful enjoyment of possession in the public interest, it must respect a reasonable relationship of proportionality between the means employed and the legitimate aim. In view of the fact that the applicant is not required to pay a disproportionate percentage of his gross income in maintenance payments, approximately 20%, and taking into account the disposable income that he is left with, the Commission considers that the United Kingdom has not acted disproportionately in pursuing the legitimate aims referred to above. In the circumstances the Commission does not consider the relevant measures to be disproportionate to the legitimate aim they pursue and considers that a fair balance has been struck between the interests of the community as a whole and those of the individual.”

“any interference was “in accordance with the law” or “prescribed by law” in the United Kingdom, the measures concerned deriving from the Child Support Act 1991 and the regulations implemented thereunder. The measures, which seek to provide for financial support for children from absent parents, may also be considered as pursuing the legitimate aims of safeguarding the economic well-being of the country under Article 8 § 2 and the protection of the rights of others, including in particular the rights of the child, under Articles 8 § 2 and 10 § 2.”

“satisfied that a fair balance has been struck between the interests of individuals, namely, provision of a mechanism to avoid harmful disclosures, and the interests of the general community that the State recover child support maintenance from absent parents to reduce the burden on the tax-payer of single parent families. It finds accordingly that the requirement imposed on the applicant to provide information relevant to the enforcement of the financial obligations of absent parents arising in connection with their children is not disproportionate and may be regarded as necessary in a democratic society for the legitimate aims referred to above.”

i) it comes into play only when a deduction from earnings order either has proved or is likely to prove ineffective: see section 33(1)(b);

ii) in such cases it serves as a ‘gateway’ to those various enforcement mechanisms without recourse to which the overall objectives of the statutory scheme are, ex hypothesi, likely to be frustrated;

iii) it is only a ‘gateway’, and thus in fact affects neither the absent parent’s income nor his credit status;

iv) in any event it cannot be unreasonable or disproportionate to have some effective machinery for recovering a debt which is properly owing and has not been satisfied by the absent parent.

“The tribunal acted lawfully and reasonably and there was no breach of the rules of natural justice or of the requirements of fair procedure.”

Simon Brown LJ in the Court of Appeal said at para [19] of his judgment that it was not even arguable that the Commissioner had erred in coming to this conclusion. With respect I entirely agree. There was nothing “unfair” in what the CSAT did, whether one judges the matter by reference to common sense standards of fairness, by reference to the principles of natural justice and fair procedure, or by reference to the requirements of Article 8. Mr Denson has been, throughout, entirely the author of such misfortune as he may have suffered.

i) Any interference with a person’s possessions must strike “a fair balance” between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights; there must, as always, be a reasonable relationship of proportionality between the means employed and the aims pursued: The National & Provincial Building Society v United Kingdom (1997) 25 EHRR 127 at p 171 (para [80]). This principle, as we have already seen, was considered and applied by the Commission in the specific context of the CSA in Burrows.

ii) The notion of “interference” is not confined to situations where decisions or orders have been enforced against an individual. Measures which leave intact the owner’s right to use his possessions may nonetheless engage Article 1 if they render his rights precarious and defeasible: Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35 at p 50 (para [60]).

iii) The law must not “create such inequality that one person could be arbitrarily deprived of property in favour of another”: Burrows.

“Furthermore, the Court is of the opinion that in all the States Parties to the Convention, legislation governing private law relations between individuals includes rules which determine the effects of these legal relations with respect to property and, under certain conditions, compel a person to surrender a possession to another or impose financial obligations towards a third person. This type of rule cannot be considered contrary to Article 1 of Protocol No 1, unless there is arbitrariness.”

If, as both Burrows and Evers indicate, arbitrariness is the essence of the vice in this type of situation, Mr Denson’s claim must surely fail. There is nothing remotely arbitrary in what the CSA has done. Quite the contrary.

“The Commission is of the opinion that the registration of the mortgage in question could not be described as a deprivation of property, in the meaning of the first paragraph of the provision. Insofar as it might be considered as an interference with the right of everyone to the peaceful enjoyment of his possessions, in the meaning of the first phrase of the same paragraph, the Commission considers that this registration of a mortgage is a measure authorised by the second paragraph of Article 1, since it was clearly designed ‘to secure the payment of taxes or other contributions or penalties’. The interim registration had the object of securing the payment of evaded taxes or of fines which the applicant might eventually be ordered to pay to the administration at the end of the proceedings started against him and which were currently in progress. Moreover, there is nothing in the file which allows one to consider that the application of this measure in the present case was at all disproportionate to the object to be achieved.”

i) The CSA erred in law, and exercised its discretion improperly, in failing to have regard to a relevant consideration, namely the reasons for the ineffectiveness of the deduction from earnings order which had earlier been imposed on Mr Denson.

ii) If it had addressed itself to the reasons the CSA would have appreciated that the deduction from earnings order had proved ineffective only because it was based on an erroneous appraisal of Mr Denson’s financial circumstances, not because of any unwillingness on his part to pay. In this connection Mr Grief suggests that a payment (the word used in section 33(1)(b)(ii) of the Act) is not payable unless it is properly due, which presupposes that the amounts in question have been properly calculated on the basis of accurate information.

i) The argument proceeds on a misinterpretation of section 33(1)(b) of the Act. The statute does not require the CSA (or, to be more precise, the Secretary of State) to consider why the deduction from earnings order has proved ineffective. All that section 33(1)(b)(ii) requires is that it should appear to the Secretary of State that the deduction from earnings order “has proved ineffective as a means of securing that payments are made”. The statute in other words directs attention solely to the what and not to the why.

ii) That there had in fact been non-payment – in other words that the deduction from earnings order had indeed “proved ineffective” – could not possibly be gainsaid.

iii) There is, moreover, nothing to suggest that consideration was not in fact given to the reasons why the order had proved ineffective. The CSA was well aware of Mr Denson’s complaints, including his contention that the underlying assessments had been improperly made. In the light of the Court of Appeal’s decision the CSA was fully entitled to reject those arguments as groundless.

i) It is irrational for the CSA to obtain a liability order (a) if there is no prospect of the CSA obtaining any payments under it and accordingly (b) in circumstances where the only effect will be to prejudice the defaulting parent’s credit status.

ii) Mr Denson in fact has no assets (so it is said) other than an F-registration car and a 30 year old caravan.

MR JUSTICE MUNBY: These were judicial review proceedings in which Mr Denson, an absent father, sought to challenge decisions of the Child Support Agency, in large measure in reliance upon the provisions of the Human Rights Act and the European Convention.

For the reasons set out in a judgment, a draft of which has already been sent to the parties, and copies of which will be available in a moment for anybody who wants them, I have concluded that Mr Denson's challenge fails in all respects. That in all material respects, the Child Support Act 1991 is Convention compliant and, accordingly, in those circumstances, I propose to dismiss this application.

MR SHELDON: My Lord, thank you for your judgment. The defendant would like costs in this case against Mr Denson on the normal basis?

MR JUSTICE MUNBY: Yes. Yes, Mr Grief?

MR GRIEF: My Lord, my instructions are, so far as I can, to resist that application for costs and to ask that the defendant bear its own costs. I have two submissions on this point, my Lord. The first is that the point at issue in the proceedings was of some importance, as your Lordship yourself recognised, being the first time that the Agency had been challenged in an English court on the basis of the Convention, prior to the entry of course of the Human Rights Act.

My Lord, the importance of that point I think was reflected in the generous time allowance that your Lordship gave me to articulate my submissions in January and in your decision to reserve judgment. So, in short, my Lord, regardless of the rights and wrongs of the claimant, the case, and your Lordship's judgment, has served the important public purpose of confirming that the Act and the Agency, at least in the circumstances of this case, are Convention compliant.

My Lord, my second submission is perhaps less attractive, but it is one that I have been asked to make. It remains the claimant's case that he does not have the means to meet his liabilities towards the Agency and, in any event, my Lord, if he is ordered to bear the defendant's costs this will necessarily impact on his ability to meet those liabilities and to fulfil his obligations towards his children.

My Lord, I accept that is perhaps a less attractive submission, but it is one that I feel compelled to make. Those are my submissions, my Lord.

MR JUSTICE MUNBY: Thank you, Mr Grief.

MR SHELDON: My Lord, I have nothing further to add on that. It was a case where we were put to considerable expense and Mr Denson brought the case in the full knowledge that costs could be ordered against him if he failed.

MR JUSTICE MUNBY: Yes. Mr Grief, as you are aware, what I said in paragraphs 67 and 68 of my judgment was that Mr Denson, as Simon Brown LJ had occasion to observe on a previous occasion, is simply a scheming parent playing the system. His complaints against the CSA are groundless. He has failed to produce anything which even begins to show that the CSA has acted otherwise than entirely fairly, properly and appropriately throughout. His criticisms of the CSA are misplaced.

I also - and this is, as you will appreciate is a reference to your second ground - made it clear in paragraph 66 of my judgment that I did not for a moment accept, any more than the Agency does, that his only assets are the old car and caravan which he claims. Mr Denson might, in the light of those observations, consider himself luckily that the Agency is seeking only costs on the standard basis and not on the indemnity basis. The only conceivable ground for not making an order for costs would be that some public benefit has been served as a result of those proceedings. So it may have been, but it does not lie in this litigant's mouth, as it seems to me, in all the circumstances to take the point.

It seems to me, notwithstanding everything you have pressed on his behalf, that this is the plainest possible case for awarding costs as sought by the Agency.

MR GRIEF: My Lord, I am also instructed to request your Lordship's permission to appeal to the Court of Appeal on the Convention point?

MR JUSTICE MUNBY: Would you be so good as to articulate, first of all, whether the grounds of appeal go to matters of law and, if so, what, or if they go to some other aspect of the case?

MR GRIEF: My Lord, the grounds would go to the issue of whether the Convention is engaged, and the issue of the allegedly "gateway-nature" of the liability order, and whether a fair balance has been struck as required by Article 8 and Article 1 of the First Protocol.

MR JUSTICE MUNBY: Mr Sheldon?

MR SHELDON: My Lord, the Agency seeks to resist that application. It is quite clear from your judgment that these arguments are without merits, and if they are without merits here they should be at any higher court. So I would urge you to refuse this application.

MR JUSTICE MUNBY: Yes.

MR GRIEF: My Lord, I have nothing further to say.

MR JUSTICE MUNBY: I am not prepared to grant Mr Denson permission to appeal. As you will be aware from my judgment, I have come to a very plain view on each of the matters of law that was canvassed before me. I hope I have enough judicial humility to recognise that I may be wrong, but this is a case in which, if you seek to attempt to persuade the Court of Appeal I am wrong, you must persuade them that the matter is one properly to be canvassed before them.

MR GRIEF: My Lord, thank you.

MR JUSTICE MUNBY: As I have made clear, it is time for Mr Denson to stop playing the system. He should, as I said in paragraph 69 of my judgment, measure up to his responsibilities as a parent. This litigation has being going on for far too long and I am not prepared, myself, to play any part in any further prolongation of it.

In the circumstances, unless there are any further submissions from anybody, I propose to dismiss the application, to order the claimant to pay the defendant's costs of the proceedings, and I refuse the claimant permission to appeal.

MR GRIEF: My Lord, thank you.

MR JUSTICE MUNBY: I am very grateful to both of you for all your help. I will hand back to the associate that part of the papers which stay on the court file.

THE ASSOCIATE: My Lord, I have been asked by the reporters to clarify whether there are any reporting restrictions?

MR JUSTICE MUNBY: No, there are no reporting restrictions of any sort in this matter. The only element of confidentiality which attaches to the case, as those who read the judgment will see, is that there are two people who have, as it were, a walk-on part in the case, who in my judgment are referred to, in the one case, as "Mrs S" and, in the other case, as "Miss T". Apart from that there are no reporting restrictions, and anybody is at full liberty, if they so wish, to report any part of my judgment in the form in which it is handed down.

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