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Human Rights - 9 October 2009
Family: Time to rethink? ...
New Law Journal
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Issue 7388, October
Articles
159 NLJ 1382
9 October 2009
Family: Time to rethink?
Legal Update Specialist
David Burrows
is a solicitor advocate. E-mail: david.burrows@dbfamilylaw.co.uk
© Reed Elsevier (UK) Ltd 2009
David Burrows asks, is the tribunal system human rights compliant?
* * * * * *
In Brief
● Is child support "habitual residence" a question of fact or law?
● Is it a fair trial when a party may not understand the law?
* * * * * *
The European Convention for the Protection of Human Rights and Freedoms 1950, Art 6(1) provides that a person is entitled to a fair trial before an impartial tribunal. But how far is it possible to have a fair trial where the law under consideration is beyond the comprehension of the averagely intelligent lay person (AILP); and where, for practical purposes, legal representation is denied, because legal aid is not available?
To test this question I take the new child support scheme (effective from 24 July 2008 under the Child Maintenance and Other Payments Act 2008) as applied under the even slightly newer tribunal scheme (introduced on 3 November 2008 pursuant to the Tribunals, Courts and Enforcement Act 2007).
The 2007 Act brings with it a new set of procedural rules for tribunals. The most radical departure for both rules and the 2008 Act is the impulse towards a "voluntary" ethos and mediation: "voluntary maintenance arrangements" occurs early in the 2008 scheme (s 2(2)(a)). Tribunals Procedure (Upper Tribunal) Rules 2008 r 3(1) requires the tribunal to "seek, where appropriate (a) to bring to the attention of the parties the availability of any appropriate alternative procedure for the resolution of the dispute; and (b) if the parties wish...to facilitate the use of the procedure" (an identical provision applies to the First-tier Tribunals).
So a new statutory (the 2008 Act), and a new procedural scheme have burst upon the unsuspecting child support public. In the dense undergrowth of real tribunal litigation with its bare knuckle fighting over complex regulations the reality is different. And where the fair trial concept unravels is that unless tribunal representation is by one of the few specialist lawyers in this field, it will be only the tribunal judge who knows the law. If the judges get the law or the facts wrong (as they often do) who is to say they are wrong? It is not a healthy system.
A "question of law"?
If a layperson thinks they have a right to appeal, it is only on "a question of law" (Child Support Act 1991 s 24). How many appeals are still-born, another injustice perpetrated, because a lay person has found "a question of law" hard to spot? Or, worse, the appellant has spotted one, but the Upper Tribunal judge fails to see it.
The question posed by this article depends on a heavy loading: that the statutory provisions involved are beyond the understanding of an AILP. In Secretary of State for Work and Pensions v Boyle [2008] EWCA Civ 21 May LJ starts his judgment: "It is notorious that legislation and in particular regulations made under or in relation to the Child Support Act 1991 sometimes give rise to difficult, even sometimes impenetrable, questions of construction": what chance the AILP when May LJ says that? Later, over one page of text, he recites the words of Child Support (Maintenance Assessment Procedure) Regulations 1992 (SI 1992/1813) (regs 8D and 30A) and comments: "It is fair to say perhaps that the meaning and effect of all that does not leap off the page."
As a lawyer who deals daily with this jungle, I found those words very funny; but were I a non-resident parent and an AILP researching late at night a case where, tomorrow, I must face a tribunal-some of whose members can be hostile to non-resident parents-I might not see it quite that way. The wry judicial litotes balanced against the desperation of the layman facing the same dense statutory provisions might lead the independent bystander to doubt the chances of a fair trial.
Take, for example, "habitual residence" under Child Support Act 1991, s 44. A non-resident parent (F) has for two years paid maintenance under the pre-March 2003 scheme (much of what follows applies equally to both schemes). He decides to start a new life in Australia. He sells his house, leaves his job and travels to Australia where he remarries. After two years the marriage fails. Six months on, F returns to the UK. The Child Support Agency (CSA) finds out where he is working and make a deduction from earnings order, including substantial arrears. He asks them to take account of the fact that he has not been living in this country for three years. Where in law, on these facts, does this leave F?
Three questions
Three questions arise:
(i) once F leaves for Australia can it be said still that he "is habitually resident in [the UK]" (s 44). If he is not habitually resident;
(ii) what effect does that have on the assessment? On his return here:
(iii) does the original assessment subsist or resume? For a lawyer these questions present a field-day (the standard source book, Child Support the Legislation 2007-2008 (2009-10 is still awaited), Jacobs & Douglas, Sweet & Maxwell at 154 provides six pages of recondite discussion on "habitual residence" interpreting the authorities, sometimes, in an idiosyncratic way). For F the maze, which has become his child support life, merely thickens.
(i) Habitual residence
"Habitual residence" is not statutorily defined in the 1991 Act; nor in other obvious statutory sources, eg Child Abduction and Custody Act. Much of the case law concerns people who want to be treated as habitually resident in this country (eg Nessa); not out of it. The s 44 criterion is that the CSA cannot have jurisdiction if a person is not habitually resident. It is well-known that habitual residence can be lost in a day; but it may not be established elsewhere for some appreciable time (Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562).
F's departure from the UK terminates his habitual residence. That should be easy on the facts; but he will search long for an answer as to the effect of this. If he is lucky he will find CCS/2314/2008 (decision: 9 January 2009): if the tribunal judge knows of this reference he will not provide F with a copy. It is available on the internet if F knows where to look and can find his way around the Tribunals Service web site (not easy). The newly appointed and highly academic Upper Tribunal Judge Wikely gives a summary of what is "habitual residence" which helps to deal with the first question.
(ii) What happens to the assessment?
However, CCS/2314/2008 does not answer F's second question (Judge Wikely was not asked the question in that case): what happens to the original assessment on it being determined that F is no longer habitually resident. This requires deductive reasoning which plumbs the depths of what is fair, and can lead to a fair trial. For opacity of statutory provision the consequences of s 44 must take a Kafka award; and in what follows I feel I am only guessing at the law (unless I've missed something very simple).
Section 44 is in the future tense: the CSA "shall have jurisdiction to make" an assessment. Does this apply only where a calculation or assessment is in prospect? What happens once the assessment has been made? Child Support Act 1991 Sch 1 para 16 was entitled "termination of assessments", a heading left out of the current version. Para 16(1)(b) provides that the assessment "shall cease to have effect (b) on there no longer being any qualifying child with respect to whom it would have effect". Looking at the rest of para 16 that is probably the nearest F will get to an answer. Para 16(1)(b), it might be thought, merely begs the question.
Then the deductive reasoning: Child Support (Information, Evidence and Disclosure) Regulations 1992 (SI 1992/1812) reg 6 requires a parent with care to tell the CSA where she believes that "by virtue of section 44...a calculation [or assessment] has ceased to have effect". The draftsperson of this regulation takes it for granted that "by virtue of s 44" a calculation comes to an end.
(iii) Can the assessment revive?
"Termination of assessments" is what para 16 is/was about. The text of para 16 provides for assessments to "cease to have effect". Does this mean the same? Is the assessment ended, or does it just "cease to have effect" till it re-emerges? Not for the only time, child support takes the researcher to Monty Python, this time the dead parrot sketch. Is it an assessment which "is no more" etc ; or could it hop back on its perch? In F's case the CSA seems to think it's back on its perch.
In Askew Page v Page [2001] Fam Law 794 the wife argued, in the context of a child periodical payments order, that the words "cease to have effect" in Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 (SI 1992/2645) reg 3(2) merely meant that the order became latent for a time, like a stream in limestone hills it went underground, to emerge again when she came off benefit. She could then ask the CSA to "cease acting" (s 4(5)) and apply for variation of her Matrimonial Causes Act 1973 order. HHJ Meston QC said no: the words meant that the order came to an end. "Cease to have effect" meant "terminated". Does the wording of the text of para 16 mean the same? F must hope so.
A voluntary approach
A pre-child support lawyer child like me thinks back to how it could have been. F's order in the county court would have gone on whether he went to Australia or not. F had paid before he went away; and a polite approach by relatively friendly letter might have got things going again. A realistic view on arrears could be taken by his former partner. And, like a limestone stream, the order would re-emerge and resume its full effect.
None of this weedy, conciliatory stuff attracts the CSA. Enquiries are conducted clandestinely. Every letter is peppered with threats of prosecution if the correspondent does not do exactly as is wanted. No wonder parents' backs are up. An approach is fostered which may have been attractive to Mrs Thatcher in her declining years and to Gulag "new" Labour; but this is the antithesis of "voluntary maintenance arrangements" and conciliatory family law. At its worst it can frequently make a broken relationship so much more broken. And to deepen the awfulness of the scheme, if a tribunal appeal results, the possibility is that it will be based on law which is only slightly more comprehensible to the judges than to the unrepresented lay-people; and based on a system the fairness of which, if challenged, might well be on the wrong side of human rights boundaries.
Let us declare a fair trial impossible, dismantle AILP-incomprehensible legislation and regulations; and then bring in mediation and a fair family law-based scheme-please.
Source [The New Law Journal]