Secretary of State for Work and Pensions v Kehoe

Mrs Mary Kehoe sought a declaration under s.4(2) of the Human Rights Act 1998 that:-

“the provisions of the Child Support Act 1991 (“the 1991 Act”) are incompatible with a Convention right (namely the right of access to a court under article 6) because they deny a parent with care of children access to any court (in her own right or alternatively on behalf of the children) in connection with disputes as to her (or their) civil rights consisting of disputes as to whether the absent parent has paid and/or ought to pay the sums due under a maintenance assessment under the 1991 Act; or as to the manner in which the obligations under the maintenance assessment should be enforced.”

She also sought a declaration that delay on the agency’s part constituted a breach of her article 6 rights and she claimed damages under s.7 of the Human Rights Act 1998.

On 16^th May 2003 Wall J. dismissed the application for a declaration of incompatibility. He stayed giving further directions on her damages’ claim until the resolution of this appeal for which he gave permission because:-

“The case raises points of considerable public importance on which there is no direct authority and this warrants the attention of the Court of Appeal.”

It does indeed. The Secretary of State appeals against the judge’s conclusion that Mrs Kehoe’s inability personally to enforce arrears of maintenance arising under the maintenance assessment engaged her article 6 rights, contending that she does not have a civil right to a maintenance award enforceable by her. She cross-appeals against the judge’s second conclusion that the scheme under the Child Support Act 1991 is article 6 compliant, contending that judicial review is an inadequate process for the adjudication of her dispute about the arrears and their collection.

That these questions give rise to matters of importance is obvious. The Child Support Agency’s report for 2001/2002 revealed that during that year the agency managed over a million cases where parents had separated and used the agency. The evidence filed on behalf of the agency reveals that £2,500m. maintenance was outstanding of which nearly £2,000m. was probably incapable of collection for one reason or another. Recent reports of problems with the computer system may mean that the agency is still not functioning with the utmost efficiency.

To understand whether the mother’s or child’s civil rights are engaged it is necessary to examine first the position at common law, then the statutory developments, the ordinary enforcement procedures, the background to the introduction of the Child Support Agency and finally the provisions of the Act itself.

In Re C (A Minor) (Contribution Notice) [1994] 1 F.L.R. 111, 116 I said:-

“The strange state of our law is that there may be a so-called common law duty to maintain, but when one analyses what that duty is it seems effectively to have come to nothing. Like so many rights, the right extends only so far as the remedy to enforce it extends. … the common law has no remedy. The remedies to enforce a duty to maintain are statutory remedies which are variously laid down in numerous statutes.”

I need to elaborate.

There is no doubt that a father was under a duty to maintain his legitimate children in the sense that he had to provide them with food, clothing, lodging and other necessaries. In a similar way a husband was under a common law duty to maintain his wife. As Morris Finer and O.R. McGregor trenchantly explain in The History of the Obligation to Maintain (1955) 18 M.L.R. 114, republished as Appendix 5 to the Finer Report on One Parent Families (Cmmd. 5629 (1974)) at para.25:-

“The judges based this principle upon the same doctrine of matrimonial symbiosis as they employed to deprive the wife of her property rights. Since the husband owed it to the community to sustain himself, he was, it was said, under the inevitable compulsion to sustain his other self, his wife, who was “bone of his bone, flesh of his flesh, and no man did ever hate his own flesh so far as not to preserve it.” (See Manby v Scott (1663) 1 Mod 124, 128).

However while recognising the husband’s obligation, the common law refused recognition of any corresponding right on the part of the wife to enforce the obligation directly against him. The law was conclusively so established in 1663, in Manby v Scott. The reasoning was that the marriage and its incidents were exclusively within the jurisdiction of the Ecclesiastical Courts, so that for the common law to have entertained a claim for maintenance by the wife against her husband would have amounted to an invasion of the spiritual jurisdiction. A wife could neither claim nor enforce any right to maintenance in the civil courts. The only assistance which the common law did give to her was that in certain circumstances it would support her in pledging her husband’s credit so that, for example, if a wife was able to purchase household goods from a tradesman on credit, the husband might be held liable, at the suit of the tradesman, to discharge the debt. This was based on the notion of agency …”

The wife’s agency of necessity extended to cover necessities for the children: see Bazeley v Forder (1868) L.R. 3 Q.B. 559.

That apart, the only avenue for enforcement of the duty to maintain was provided by the Poor Law statutes which gave the Justices of the Peace power to order the defaulting relative to maintain the “poore person”, e.g. his child, by way of certain periodical sums in addition to the repayment of monies already expended by the overseer. As Finer and McGregor explain in para.52:-

“Thus was established the national system by which the public supported those who were unable to support themselves, but sought reimbursement by imposing a legal liability upon financially able relatives.”

Its echoes reverberate on.

The National Assistance Act 1948 decreed that the existing Poor Law cease to have effect but, as I shall show, the so-called “liable relative’s” obligation to reimburse the State has survived. Section 41 of the Matrimonial Proceedings and Property Act 1970 abolished the agency of necessity. For all practical purposes the common law duty to maintain is now no more than an historical footnote. If, however, the father’s duty to maintain his legitimate children by providing them with food, clothing, lodging and other necessities ever gave rise to a correlative right, it was a right only to be maintained in that general sense: there was no right to maintenance in the sense of a right to periodical payments of a certain sum of money.

The first important reform was the Matrimonial Causes Act 1857. This saw the end of the ecclesiastical court’s power to award alimony, an award which could not be enforced in the common law courts. The 1857 Act introduced divorce to the new divorce courts. Section 35 allowed for such provision as appeared just and proper to be made with respect to custody, maintenance and education of children. Such orders could be enforced in the same or like manner as orders of the High Court of Chancery: s.52. In the divorce courts the powers are now conferred by the Matrimonial Causes Act 1973 and, in the case of foreign divorces, by Part 3 of the Matrimonial and Family Proceedings Act 1984. Jurisdiction was first given to the magistrates’ court by the Matrimonial Causes Act 1878 which provided for weekly sums to be paid to the wife in cases where the husband had been convicted of aggravated assault. Much wider jurisdiction was given to the justices by the Summary Jurisdiction (Married Women) Act 1895. Its successor is the Domestic Proceedings and Magistrates’ Court Act 1978. So far as children are concerned, the power to make maintenance orders and custody orders was conferred by the Guardianship of Infants Act 1925 and the current powers are to be found in Schedule 1 to the Children Act.

Thus in summary the power to make a “maintenance order”, which as defined in s.8(11) of the 1991 Act, means “an order which requires the making or securing of periodical payments to or for the benefit of the child”, is currently given by:-

By “ordinary enforcement procedures”, I mean the procedures available to enforce the orders made under the “ordinary maintenance statutes” above. The remedies in the High Court and County Court are those available for the enforcement of other orders as judgment debts such as execution, garnishee and charging orders, the appointment of a receiver and sequestration. There is a power to commit to prison and a power to attach earnings. All of these are remedies available to the payee as judgment creditor. There is also a power to seek the registration of the order in the Magistrates’ Court. There are, however, important special provisions relating to the enforcement of maintenance orders. They are the need for leave to enforce more than one year’s accumulation of arrears and the power to remit arrears. To anticipate my later discussion of the child support scheme under the 1991 Act, there is no such indulgence shown to the debtor there.

In the magistrates’ court, a magistrates’ court maintenance order (as defined in Schedule 8 of the Administration of Justice Act 1970) may be enforced by distress, attachment of earnings or committal. There is, however, an important difference in the procedure of the magistrates’ court and the superior court. In the magistrates’ court, enforcement is not always taken by the party for whose benefit the order is made. That development is interesting.

In 1912 the Gorrell Barnes Committee giving the Report of the Royal Commission on Divorce and Matrimonial Causes (1912, Cmmd. 6478) acknowledged that it would “relieve the wife of many difficulties” in her efforts herself to enforce payments against a recalcitrant husband if those payments were to be made through a third party who would keep proper records and avoid disputes about how much was owing. That was implemented in 1914 by the Affiliation Orders Act 1914 and the Criminal Justice Administration Act 1914 (the title of which the Finer report notes in para.4.119 to be “yet another example of the offensive labelling of the matrimonial disputes of the working classes”). The justice’s clerk was to be the collecting officer and the hope was that this would avoid the difficulties liable to arise if the woman had to make personal application to the man for payment. When making a maintenance order the justices were required to direct that payments be made to the justice’s clerk unless satisfied upon the express representation of the applicant that they ought not to do so. The clerk was then required to proceed in his own name for the recovery of those sums if the person for whose benefit the payment should have been made so requested in writing, and unless it appeared to the clerk that it was unreasonable in the circumstances to do so. The current provisions are contained in s.59 and 59A of the Magistrates’ Courts Act 1980, as amended by the Maintenance Enforcement Act 1991. It was the success of these measures, acknowledged by the Morton Report (the 1956 Royal Commission on Marriage and Divorce) which led to the recommendation that divorce court orders be registerable in the magistrates’ court.

In his very recently published magisterial magnum opus, Family Law in the 20^th Century, Professor Stephen Cretney Q.C. writes at p.455:-

“The effect of these changes (which does not seem to have been foreseen) was effectively to transfer the power of dealing with much of the aftermath of marital breakdown to the magistrates’ court. This had a profound impact on the enforcement of support obligations: the law officially recognised that the magistrates’ courts had become the usual forum for dealing with default in the making of orders for periodical payments. Paradoxically this occurred at a time when the availability of legal aid for divorce had reduced the number of applications to magistrates for matrimonial orders; and to some extent the role of the courts changed from making and enforcing orders for the support of separated wives to those of an enforcement agency for the divorced. The fact that it was primarily the existence of a state-provided administrative collection machinery which had influenced the Morton Report’s recommendations was also significant for the future: it was increasingly suggested that the attempt to deal with maintenance obligations by judicial process was outdated and that court procedures should be replaced by a system of administrative assessment and recovery.”

Does therein lie a clue to the resolution of this case?

It always had been and doubtless will always remain a sad fact that the enforcement of maintenance orders is frequently less than successful. In former times wives and children were rendered destitute and humiliatingly driven to the workhouse to survive. The state intervened to provide the support which the liable relative had failed to provide until forced to do so under the Poor Laws. The historic National Assistance Act 1948 sought to remove the stigma but, as I have already observed, it retained (as has the subsequent Social Security legislation) the core obligation of the husband to maintain his wife and child and gave the state power, apparently not widely deployed, to seek reimbursement from him if his neglect to maintain forced the wife and child to rely on state-funded income support: see now ss.78 and 106 of the Social Security Administration Act 1992. Para. 112 of Appendix 5 to the Finer Report summarised the consequences:-

“Thus, one fundamental principle of 43 Elizabeth, namely, the designation in the public assistance legislation of liable relatives and the right of the public authority granting such assistance to seek reimbursement from the liable relatives, still retains its vitality today. … the unsupported wife or mother both retains her legal right of maintenance which she may seek to enforce through an order of the court, and enjoys also, in her capacity as a citizen, a right to support from the social security authorities which carries no stigma. … the relationship between those two rights … still remains unsatisfactorily resolved, either in practice or principle …”

As more and more husbands and fathers failed - deliberately or otherwise - to maintain their wives and children, there developed the perception of “welfare benefit divorce” whereby the state (or taxpayers) would assume financial responsibility for the first family when a marriage or relationship broke down. There is in her memoirs an interesting vignette – for the knowledge of which my thanks are due to Professor Cretney - of the effect that this had on the Prime Minister, Mrs Thatcher. (Footnote: ¹) The upshot of this dawning realisation was a White Paper, Children Come First Cmnd.1264, published in October 1990, in which it was noted in point 2 of the summary:-

“The present system of maintenance is unnecessarily fragmented, uncertain in its results, slow and ineffective. It is based largely on discretion. The system is operated through the High and County Courts, the Magistrates’ Courts … and the offices of the Department of Social Security. The cumulative effect is uncertainty and inconsistent decisions about how much maintenance should be paid. In a great many instances, the maintenance awarded is not paid or the payments fall into arrears and take weeks to re-establish. Only 30% of lone mothers and 3% of lone fathers receive regular maintenance for their children. More than 750,000 lone parents depend on income support. Many lone mothers want to go to work but do not feel able to do so.”

The Government proposed that a Child Support Agency (the"CSA”) be created which would:-

“Ensure that parents honour their legal and moral responsibility to maintain their own children whenever they can afford to do so. It is right that other taxpayers should help to maintain children when the children’s own parents, despite their own best efforts, do not have enough resources to do so themselves. That will continue to be the case. But it is not right that taxpayers, who include other families, should shoulder that responsibility instead of parents who are able to do it themselves.” (See para. 2.1)

In order to “produce consistent and predictable results” the CSA would apply a formulaic calculation to assess the amount of maintenance to be paid for each qualifying child by the absent parent. The government recognised in para. 5.1 that “an improved system of assessment of maintenance awards is worthless unless the sums were actually collected and where necessary enforced”. Para. 5.2 acknowledged:-

“It is important that, as far as possible, all the services relating to child maintenance which are to be provided to the public should be delivered by one single authority. … It will be a priority for the agency to secure payment to the caring parent as quickly and accurately as possible.”

In para. 5.20 the point was made, and one does not imagine that Mrs Kehoe would disagree:-

“If enforcement action is to be effective, it has to be taken quickly.”

Thus it came about that the Child Support Act 1991 was rushed onto the statue book.

The 1991 Act, as amended by the Child Support Act 1995 and the Child Support, Pensions and Social Security Act 2000 provides very broadly for this scheme. The basic principle is set out in s.1 to be:-

“(1)

For the purposes of this Act, each parent of a qualifying child is responsible for maintaining him. …

(3)

Where a maintenance assessment made under this Act requires the making of periodical payments, it shall be the duty of the absent parent with respect to whom the assessment was made to make those payments.”

A child’s welfare is a relevant matter to which the Secretary of State must have regard only when considering the exercise of any discretionary power conferred by the Act: s.2. A parent is a “non-resident parent” (formerly called the “absent parent”) if he does not live in the same household with the child and the child has a home with a parent who is, in relation to him “a person with care”. Under s.4(1) either the person with care or the non-resident parent may apply to the Secretary of State for a maintenance assessment to be made under the Act with respect to a qualifying child. If, however, the person with care of the child is a parent who is claiming or receiving income support, income-based job-seeker’s allowances or any other benefits of a prescribed kind and that person is required to do so by the Secretary of State, then she shall authorise the Secretary of State to take action under this Act to recover child support maintenance from the non-resident parent: s.6. The Act makes a clear distinction between those receiving State benefits and those, like Mrs Kehoe, who are not: the former are given no choice, the latter can at least decide for themselves whether to seek the help from the CSA. Once such a request has been made or deemed to have been made to the Secretary of State, it shall be dealt with by him in accordance with the provision made by or under the Act: s.11(1). In this regard, therefore, the Secretary of State has no discretion. Maintenance is assessed applying the formula prescribed by the Act. Assessments can be reviewed, and now revised. There can be an appeal with a public hearing to a Child Support Appeal Tribunal and further appeals on a question of law to a Child Support Commissioner and thence to the Court of Appeal: ss.20-25.

The Child Support (Collection and Enforcement) Regulations 1992 provided for the manner of collection of the child support maintenance. Where a maintenance assessment has been made the Secretary of State was entitled to specify that payments should be made by the liable person to the person caring for the child or to the Secretary of State. The method of payment could be specified to be by standing order or direct debit or by debit card. Payments of the maintenance made through the Secretary of State were to be transmitted to the person entitled to receive them. The documentation which is ordinarily issued makes it perfectly plain that the person who is to receive a payment is the parent with care.

Section 8 is important because it regulates the role of the courts with respect to maintenance for children. The crucial provisions are:-

“(1)

This subsection applies in any case where the Secretary of State would have jurisdiction to make a maintenance assessment with respect to a qualifying child and the absent parent of his on an application duly made by a person entitled to apply for such an assessment with respect to that child. …

(3)

In any case where ss.(1) applies, no court shall exercise any power which it would otherwise have to make, vary or revive any maintenance order in relation to the child and absent parent concerned.

A maintenance order for this purpose is an order made under the several Acts, the ordinary maintenance statutes, which I listed in paragraph 12 above.

The general principle is clear: the responsibility for assessing, collecting and enforcing child maintenance was transferred from the courts to the CSA. The parent’s, and the child’s, direct right of access to the courts has been denied. That is the general rule but there are exceptions which I need mention only briefly. For example parents are able to opt out of the scheme if they are able to agree the level of child maintenance and obtain a court order by consent. Once a consent order has been made, the court may vary and enforce its terms. Prior to the coming into effect of the Child Support, Pensions and Social Security Act 2000 in April 2002, the making of a consent order permanently ousted the jurisdiction of the Child Support Agency, provided the parent with care was not in receipt of benefits, since the CSA has to cease to act if so requested by the applicant. Changes effected by the Act of 2000 would put an end to that. Courts will henceforth retain the power to vary post-April 2002 consent orders, provided no maintenance calculation has been made by the agency. If one is made, the court’s power to vary ceases to exist. In effect a child maintenance calculation by the Child Support Agency will after a year override the quantum fixed by an order of the court. Other examples where the court retains its jurisdiction are the power to top up payment above the assessed maximum and to provide for education expenses. The power to make lump sum and property adjustment orders is unaffected. None of these exceptions affects this case.

The provisions for enforcement lie at the heart of this appeal. Section 4 provides as follows:-

“(2)

Where a maintenance assessment has been made in response to an application under this section the Secretary of State may, if the person with care … applies to him under this subsection, arrange for –

(a)

the collection of the child support maintenance payable in accordance with the assessment;

(b)

the enforcement of the obligation to pay child support maintenance in accordance with the assessment.

(3)

Where an application under ss.(2) for the enforcement of the obligation mentioned in ss.(2)(b) authorises the Secretary of State to take steps to enforce that obligation whenever he considers it necessary to do so, the Secretary of State may act accordingly. ”

This section confers a discretionary power in the Secretary of State to decide whether or not to take the enforcement proceedings and if so what steps to take. Because enforcement involves the exercise of a discretionary power conferred by the Act, then by virtue of s.2 the Secretary of State must have regard to the welfare of any child likely to be affected by his decision and this would include the effect on other children than the qualifying children, such as stepchildren of the non-resident parent. That there are such stepchildren possibly making demands upon the income of the non-resident parent is, perhaps ironically, not a matter to take into account when calculating the amount to be paid.

The Act gives wide powers to facilitate collection but as s.29 makes clear, it is the Secretary of State and only he who is given the power to decide how to arrange for collection of the child support payable in accordance with the assessment. The parent with care is given no choice. The Secretary of State can specify to whom payments are to be made, whether to himself or to the parent with care, and whether they are to be made by standing order or by debit card. Section 31 enables him to order the non-resident parent’s employers to deduct the child support maintenance directly from his earnings without need of an order of the court which would have had to have been obtained to enforce a court order for periodical payments to a child. This is a singularly easy, effective and widely deployed means of recovery of child support.

If deduction from earnings cannot be made or has proved to be ineffective, then the Secretary of State can enlist the Court’s help to secure enforcement of payments. He must first apply to the magistrates’ court under s.33 for a “liability order” which can then be enforced inter alia by levying distress and sale of the liable person’s goods (s.35), or by garnishee or charging orders in the County Court (s.36) and finally by an application for the liable person’s committal to prison (s.40). An order may even be made to disqualify him from holding or obtaining a driving licence, a power not available for the enforcement of court orders (s.39).

Section 33 is important in the context of this appeal because once again the power to apply for the remedy is given to the Secretary of State not the parent with care. It provides:-

“(2)

The Secretary of State may apply to a magistrates’ court …for an order (“the liability order”) against the liable person.

(3)

Where the Secretary of State applies for a liability order, the magistrates’ court … shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid.

(4)

On an application under ss.(2), the court … shall not question the maintenance assessment under which the payments of child support maintenance fell to be made.”

The order made on such an application is prescribed by the Child Support (Collection and Enforcement) Regulations 1992 and it recites:-

“On complaint of the Secretary of State … that the sums specified below are due from the defendant under the Child Support Act 1991 … and are outstanding, it is adjudged that the defendant is liable to pay the aggregate amount specified below.

Sum payable and outstanding - child support maintenance

interest…”

Thus it is clear that access to the court is granted to the Secretary of State but denied to the person with care. The person with care is not a party to those proceedings even though her interests are directly involved inasmuch as the ascertainment of how much is due from the defendant determines how much is received by her. Even though there may be a dispute over what payments were and were not made, she has no control over or say in those proceedings, the conduct of which is entirely in the hands of the Child Support Officer. She may not even be present to contradict what the defendant may assert. She may suffer injustice as Mrs Kehoe says was done to her. She would have no right of appeal.

Although the determination of the issues before the court involve pure questions of law, some brief summary of the facts serves at least to explain why the matter is so important to Mrs Kehoe.

She married in 1983 and there are four children of the family, two adult daughters and two boys now aged 16 and 14. Mrs Kehoe filed a petition for divorce in December 1993 and made an application for an assessment of child maintenance under s.4(1) of the Act a week later. At the time she had only limited income from a part-time evening job and child benefit. The agency did not send the necessary Maintenance Enquiry Form to Mr Kehoe until May 1995 and that inordinate and I would have thought inexcusable delay resulted in the claimant losing the opportunity to receive maintenance for the period between December 1993 and May 1995. For the purposes of any claim for damages for delay under the Human Rights Act 1998, relevant delay is only that which occurs after 2 October 2000. Mr Kehoe eventually returned the form in July 1995 and an interim assessment was made with effect from 5^th October 1995. Mr Kehoe was a recalcitrant payer and by March 1996 arrears of £4,244 had accumulated. In June 1996 the agency took enforcement proceedings and applied to the magistrates’ court for a liability order. He disputed the amount of the arrears and on 13^th August 1996 the hearing had to be adjourned for that dispute to be resolved. On 23^rd September 1996 a decision was taken by the agency to withdraw the application for the liability order on the grounds that the amount of arrears due was in dispute and could not be substantiated. As the agency later explained to Mrs Kehoe:-

“It is clear that the child support officer would not have been able to swear under oath to the court that the amount of arrears applied for were correctly due. The agency could not, therefore, have gone ahead with an application for a liability order.”

Arrears continued to accumulate. It seems that nothing was paid between July 1998 and August 1999. There were other periods of non-payment, for example nothing was paid between March 1996 and December 1996.

A second application for a liability order was eventually granted on 15^th December 2000 for £6,229.24 covering arrears that had arisen between May 1995 and September 2000. Payments were not received and the bailiffs were instructed to levy distress but were unsuccessful. In January 2001 the liability order was registered as a County Court debt and in October 2001 a deduction of earnings order was issued but Mr Kehoe was a director of the company concerned and the order was unsuccessful.

A committal hearing was held on 8^th November 2002. Mr Kehoe admitted owing the 1995 to September 2000 arrears of £6,329.24 as already set out and he admitted to owing a further £13,859.12 from 12^th September 2000 to 4^th December 2002 in respect of which a second liability order was then made. No committal was ordered on his agreeing to pay £500 per month. His driving licence could not be removed because he was already disqualified. He did not pay as promised and was threatened with the restoration of the committal proceedings. He paid £1,000 on 30^th December 2002 and again on 14 March 2003. At the date of the hearing before us the amount owing under the two liability orders totalled £17,614.33..

By January 2003 Mrs Kehoe had, perhaps in desperation, gone to live in Spain and the agency closed its file.

In her witness statement filed in support of her application for Judicial Review she sets out the hardship she and the family suffered, her income earned for much of this period not being sufficient to provide adequately for herself and the children. Her statements have, of course, not been tested in court but it is still worth recording her views for what they are worth:-

“I have expended all my energy attempting to get the CSA to obtain maintenance payments for me. I feel excluded from the process. I have been repeatedly told that the dispute is between the CSA and (my former husband) and does not involve me. I have been repeatedly refused information concerning (my former husband) on the grounds that I have no right to this information. I believe I would not have received a fraction of the payments and compensation that has been made” [in February 1999 the Secretary of State made an ex gratia payment of £10,381.14 to Mrs Kehoe to reflect the amount of child support she might have received up to that point] “had I not continually pressurised the CSA and complained of their inaction and inability to obtain maintenance for me.

The combined effect of reduced income and stress involved in trying to obtain payments from the CSA has seriously affected my family life. I believe that if I had been allowed direct access to the courts to obtain maintenance I would have been successful. The Child Support Act’s prohibition on me taking independent action through the courts has left me powerless. My only remedy is to constantly pressurise the CSA which takes no real responsibility for ensuring maintenance is paid and for whom I am just a nuisance.”

The careful judgment of Wall J. is now reported at [2003] 3 FCR 481 and [2003] 2 FLR 578. Because reference can be made to the reports which fully sets out the submissions which were made to him and which, duly refined, were urged upon us, I need only summarise his conclusions. He posed three questions, first, is article 6 engaged; secondly if it is engaged, is the scheme under the 1991 Act nonetheless HRA 1998 compliant under the Alconbury principles (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 A.C. 295); and thirdly, what remedies, if any, does the claimant have?

He rejected the submissions of Mr Jay Q.C., appearing before him as before us for the Secretary of State, that the claimant’s only right was to ask for the assessed amount of maintenance to be collected and if need be enforced in accordance with the scheme, and that this was not a civil right to a maintenance award enforceable by her. Wall J. held:-

“84.

… I find myself unable to accept this analysis, which seems to me to blur the necessary distinction between the right and the remedy. In my judgment, the claimant undoubtedly has a civil right to seek maintenance for her children from their father. Furthermore, that it is an autonomous, substantive right. It is a right which is plainly recognised in English law, and provided for by domestic legislation. The 1991 Act and the scheme provide the statutory mechanisms designed to give effect to and to facilitate that right. …

86.

… my assessment is that the provisions of the 1991 Act, far from precluding the bringing of an effective right, provide the mechanism by means of which the claimant’s substantive rights are exercised; but that in its exclusion of the claimant from the enforcement process, the 1991 Act and the scheme impose a procedural bar on the prosecution/enforcement of the claim which engages article 6.”

He answered his second question in the following paragraphs:-

“131.

I have come to the conclusion that in relation to the scheme under the 1991 Act, the remedy of judicial review by itself does not give the court full jurisdiction to deal with the case as the nature of the decision requires. What I have to envisage is a failure by the agency properly to exercise its powers of enforcement. Plainly any decision by the agency not to enforce, or any failure to enforce timeously or effectively would be subject to challenge by judicial review. But in my judgment that might well not be an adequate remedy for the claimant. …

133.

… if the agency unreasonably fails to take enforcement proceedings; or delays unreasonably in taking them; or fails to prosecute them effectively, the claimant might well suffer loss, and judicial review of itself would not compensate her. It therefore seems to me that since the claimant’s article 6 rights are engaged, and she has no right of access to a court on her own account to enforce a maintenance assessment, “full jurisdiction to deal with the case as the nature of the decision requires” means that the court must have the power to compensate the claimant for the loss of child support which results from any decision by the agency which is unreasonable, or any failure by the agency which has the effect of causing the claimant to suffer damage.

134.

The court is given that jurisdiction by HRA 1998. If the agency acts in a way which is incompatible with the claimant’s article 6 rights, she can bring an action for damages under section 7. In my judgment, therefore, a combination of the right to apply for judicial review and the right to bring an action under HRA 1998 section 7 fulfils the Alconbury criteria. On this basis, the scheme of the 1991 Act is HRA compliant.”

Consequently, answering his third question, he concluded:-

“147.

I agree that I have jurisdiction to entertain an action for damages by the claimant under HRA 1998. The only basis for that action canvassed in argument was delay as creating a discrete head of jurisdiction under article 6, although it seems to me arguable at least that actionable delay on the part of the Secretary of State which resulted in loss of child support could come within article 8. But that point, however, was not argued and I say no more about it at this stage. …

148.

Since there is plainly an issue of fact as to whether or not there has been delay or other unreasonable conduct by the agency in the pursuit of the maintenance assessment, it would, I think, be quite wrong for me to grant the declaration Mr Drabble seeks in paragraph 146 and give directions for the determination of damages. The claimant must first, I think, establish that she is entitled to the declaration.”

Although these provisions are by now well enough known, I should set them out. Section 3(1) of the Act provides:-

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

Section 4(2) provides:

“If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.”

Section 6(1) provides:-

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

Section 7(1) provides:-

“A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –

(a)

bring proceedings against the authority under this Act in the appropriate court …

but only if he is (or would be) a victim of the unlawful act.”

Article 6.1 of the Convention upon which this appeal is centred provides:-

“In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …”

As Lord Walker of Gestingthorpe observed in Matthews v Ministry of Defence [2003] UKHL 4 [2003] 1 A.C. 1163, para. 127, “The cases do not speak with a single clear voice”, and I confess I have not found all the jurisprudence from Strasbourg to be as illuminating as I would have hoped. As required by s.2 of the Human Rights Act 1998 we must of course take account of their judgments but I am relieved to be bound by the decisions of this court and the House of Lords because for me they throw much more light on the principles which apply.

As a matter of history, as Lord Hoffmann pointed out in para.78 in Alconbury:-

“… it seems likely that the phrase “civil rights and obligations” was intended by the framers of the Convention to refer to rights created by private rather than by public law.”

It is, however, quite clear that the European Court has not restricted article 6(1) to the determination of rights which fell within the jurisdiction of ordinary courts of civil law and the scope of article 6 has been extended to matters which on the continent were for the administrative courts if the administrative decisions determined or affected rights in private law. Lord Walker said in paragraph 112 of Runa Begum:-

“These [a line of Strasbourg cases] indicate that article 6(1) is likely to be engaged when the applicant has public law rights which are of a personal and economic nature and do not involve any large measure of official discretion.”

A convenient starting point for any analysis of the meaning of “civil rights and obligations” is Konig v Federal Republic of Germany (1978) 2 EHRR 288 where the court held:-

“88.

Both the Commission and the government agree that the concept of “civil rights and obligations” cannot be interpreted solely by reference to the domestic law of the respondent state. … the concept of “civil rights and obligations” is autonomous.

89.

Whilst the court thus concludes that the concept of “civil rights and obligations” is autonomous, it nevertheless does not consider that, in this context, the legislation of the state concerned is without importance. Whether or not a right is to be regarded as civil within the meaning of this expression in the Convention must be determined by reference to the substantive content and effects of the right – and not its legal classification – under the domestic law of the state concerned. In the exercise of its supervisory functions, the court must also take account of the object and purpose of the Convention and of the national systems of other contracting states.”

Lord Bingham of Cornhill explained in para.3 of Matthews v Ministry of Defence [2003] UKHL 4 [2003] 1 A.C. 1163:-

“This means that the concept of a “civil right” cannot be interpreted solely by reference to the domestic law of the member state. It is the view taken of an alleged right for Convention purposes which matters.”

The next fundamental principle can be traced through such cases as James v United Kingdom (1986) 8 EHRR 123 to Z & Others v United Kingdom (2002) 34 EHRR 3 97 where in para.87 the court says this:-

“The court recalls its constant case law to the effect that “Article 6(1) extends only to contestations (disputes) over (civil) “rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) “rights and obligations” in the substantive law of the contracting states. It will however apply to disputes of a “genuine and serious nature” concerning the actual existence of the right as well as to the scope and manner in which it is exercised.”

Thus, as Lord Bingham explained in Matthews at para.3:-

“… For purposes of article 6 one must take the domestic law as one finds it, and apply to it the autonomous Convention concept of civil rights.”

Lord Hope’s comment in para.51 was:-

“Article 6(1) does not have anything to say about the content of the individual’s civil rights, nor does it impose an obligation on the state party to confer any particular rights in substantive law on the individual.”

On the other hand (or so it seems to me) Golder v United Kingdom (1975) 1 EHRR 524 had set out another fundamental principle as follows:-

“35.

… The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally “recognised” fundamental principles of law; … Were article 6(1) to be understood as concerning exclusively the conduct of an action which had already been initiated before a court, a Contracting State could, without acting in breach of that text, do away with its courts, or take away their jurisdiction to determine certain classes of civil actions and entrust it to organs dependent on the government. Such assumptions, indissociable from a danger of arbitrary power, would have serious consequences which are repugnant to the aforementioned principles and which the court cannot overlook. It would be inconceivable, in the opinion of the court, that article 6(1) should describe in detail the procedural guarantees afforded to parties in a pending law suit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristic of judicial proceedings are of no value at all if there are no judicial proceedings.

36.

Taking all the preceding considerations together, it follows that the right of access constitutes an element which is inherent in the right stated by article 6(1). … …the article embodies the ‘right to a court’, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only. ”

In Runa Begum Lord Hoffmann explained this in para.29 as follows:-

“… the Strasbourg court has been left to develop the law. It has done so in two ways. First, it has been concerned to ensure that State parties do not exploit the gap left in article 6 by changing their law so as to convert a question which would ordinarily be regarded as appropriate for civil adjudication into an administrative decision outside the reach of the article. It has done this by treating “civil rights and obligations” as an autonomous concept, not dependent upon the domestic law classification of the right or obligation, which a citizen should have access to a court to determine.”

Precisely how to determine how a particular bar to, or exclusion from, access to the courts is one which will offend article 6 or is one which falls outside its scope, is problematic. The Strasbourg jurisdiction has attempted to formulate a test involving the distinction between the imposition of a procedural bar on bringing the claim before the court and a substantive bar which precludes the bringing of any claim at all. One sees an example of this in the contrasting approach in Powell & Rayner v United Kingdom (1990) 12 EHRR 355 and Tinnelly & Sons Ltd. v United Kingdom (1998) 27 EHRR 249. The test does, however, bring its own problems to bear. As the court recognised in Fayed v United Kingdom (1994) 18 EHRR 393, para.67:-

“It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or the remedy.”

So Lord Hope of Craighead commented in Matthews, para.53:-

“The detailed reasoning of the European Court in these cases does not provide us with much by way of guidance as to how the dividing line between these two concepts is to be identified. It is not possible to find a clear ratio in these decisions which will lead to the right result in every case. So it is better to have regard instead to the underlying principles.”

What are they? Three strands seem to emerge from Matthews as pointed out by Mr Jay. First, there is a linguistic factor:-

“An accurate analysis of a claim in substantive rights in domestic law is nonetheless the first essential step towards deciding whether he has, for purposes of the autonomous meaning given to the expression by the Convention, a “civil right” such as will engage the guarantee in article 6”, per Lord Bingham, para. 3.

Secondly there is the historical factor:-

“The distinction between limits to the substantive content of the law and procedural bias to a judicial remedy is not an easy one to draw. It cannot be made to depend upon the drafting technique employed in the domestic legislation of the State concerned without opening the door to evasion of the Convention rights. Nor can the problem be resolved by invoking the word “immunity”, for the question is whether the national law creates immunity from liability or merely immunity from suit. It is best to avoid a formalistic approach and enquire whether the rule which bars the claim is of general application and is independent of the facts which found the claim. Often the answer can be found by tracing the history of the domestic rule and examining the underlying policy to which it gives effect. It is, perhaps illogically, easier to treat restrictions on a newly created legal right as limitations of substantive law than to accord the same treatment to the withdrawal of existing legal rights,” per Lord Millett at para. 79.

Thirdly there is the constitutional approach expounded by Lord Hoffmann in para.35:-

“The purpose for which the distinction [between substance and procedure] is being used in applying article 6 is that stated with force and clarity by the Strasbourg Court in Golder 1 EHRR 524 and subsequent cases, namely to prevent contracting States from imposing restrictions on the right to bring one’s dispute before the judicial branch of government in a way which threatens the rule of law and the separation of powers.”

Other passages in his speech merit repetition:-

“28.

… In the great case of Golder v United Kingdom (1975) 1 EHRR 524 the Strasbourg Court decided that the right to an independent and impartial tribunal for the determination of one’s civil rights did not mean only that if you could get yourself before a court, it had to be independent and impartial. It meant that if you claimed on arguable grounds to have a civil right, you had a right to have that question determined by a court. A right to the independence and impartiality of the judicial branch of government would not be worth much if the executive branch could stop you from getting to the court in the first place. The executive would in effect be deciding the case against you. That would contravene the rule of law and the principle of the separation of powers. …

29.

… But provided one holds onto the underlying principle, which is to maintain the rule of law and the separation of powers, it should not matter how the law is framed. What matters is whether the effect is to give the executive a power to make decisions about people’s rights which under the rule of law should be made by the judicial branch of government.”

This constitutional approach received further endorsement from their Lordships in Wilson v First County Trust Ltd. (No. 2) [2003] UKHL 40 [2003] 3 W.L.R. 568. Lord Nicholls of Birkenhead propounded the test as follows:-

“35.

The distinction between the substantive content of a right and an unacceptable procedural bar to its enforcement by a court can give rise to difficulty in distinguishing the one from the other in a particular case. As a matter of drafting, a restriction on the scope of a right may be framed in several different ways. But the drafting technique chosen by the draftsman cannot be determinative of this issue. Human Rights Conventions are concerned with substance, not form, with practicalities and realities, not linguistic niceties. The crucial question in the present context is whether, as a matter of substance, the relevant provision of national law has the effect of preventing an abuse which ought to be decided by a court from being so decided. The touchstone in this regard is the proper role of courts in a democratic society. A right of access to a court is one of the checks on the danger of arbitrary power. …

36.

… But in taking that power [the discretion over whether to make an order under the Consumer Credit Act 1974] away from the court the legislature was not encroaching on territory which ought properly to be the province of the courts in a democratic society.”

Turning to another stand of the jurisprudence this time dealing with the ambit of civil rights, I draw attention to what Lord Bingham said in para.6 in Runa Begum:-

“But comparison of [two sets of European cases] shows movement from a narrower towards a broader interpretation of “civil rights”. Further cases may no doubt continue that trend.”

So much for the identification of what is or is not a civil right.

Another, but different, fundamental principle of this jurisdiction is the so-called Alconbury principle. It was stated in that case by Lord Slynn of Hadley in these terms in para. 29:-

“The European Court of Human Rights has, however, recognised from the beginning that some administrative law decisions which affect civil rights are taken by ministers answerable to elected bodies. Where there is a two-stage process, i.e. there is such an administrative decision which is subject to review by a court, there is a constant line of authority of the European Court that regard has to be paid to both stages of the process. Thus even where “jurisdictional organs of professional associations” are set up:

“Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of article 6(1) or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1).”

See Albert & Le Compte v Belgium (1983) 5 EHRR 533, para. 29.”

The principle is set out in para.87 of Lord Hoffmann’s speech:-

“But subsequent European authority shows that “full jurisdiction” does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires.”

In Runa Begum where the review of the local authority officer’s offer of accommodation to the homeless applicant was by way of an appeal to the County Court, the House of Lords accepted that

“the absence of a full fact-finding jurisdiction in the tribunal to which appeal lies from an administrative decision-making body does not disqualify that tribunal for the purposes of article 6(1)”, per Lord Bingham at para. 11.

I should also note what he said in para. 5:-

“The importance of this case is that it exposes, more clearly than any earlier case has done, the inter-relation between the article 6(1) concept of “civil rights” on the one hand and the article 6(1) requirement of “an independent and impartial tribunal” on the other. The narrower the interpretation given to civil rights, the greater the need to insist on review by a judicial tribunal exercising full powers. Conversely the more elastic the interpretation given to civil rights, the more flexible must be the approach to the requirement of independent and impartial review of the emasculation (by over-judicialisation) of administrative welfare schemes is to be avoided. Once it is accepted that “full jurisdiction” means “full jurisdiction to deal with the case as the nature of the decision requires” (per Lord Hoffmann, R (Alconbury Developments Ltd. …) it must also be accepted that the decision whether the right recognised in domestic law is also a civil right and whether the procedure provided to determine that right meets the requirements of article 6 are very closely bound up with each other.”

Finally, I must explore the bounds of another fundamental principle of human rights’ law, namely that of proportionality. For article 6 purposes Ashingdane v United Kingdom (1985) 7 EHRR 528 is one of the leading authorities. The principle is this:-

“57.

… the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access, “by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals”. In laying down such regulation, the contracting States enjoy a certain margin of appreciation. Whilst the final decision as to the observance of the Convention’s requirements rest with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore a limitation will not be compatible with article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.” (I add the emphasis because it is worth noting that the quotation comes from Golder, the leading case on the constitutional importance of article 6 which seems to me to suggest that proportionality may justify even the exclusion of the constitutional right to a court.)

Mr Jay draws attention to the slightly different formulation of the principle in para. 93 of Z and Others v United Kingdom:-

“The right is not however absolute. It may be subject to legitimate restrictions, for example, statutory limitation periods, security for costs orders, regulations concerning minors and persons of unsound mind. Where the individual’s access is limited either by operation of law or in fact, the court will examine whether the limitation imposed impaired the essence of the right and in particular whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. If the restriction is compatible with these principles, no violation of article 6 will arise.” Mr Jay’s emphasis is added.

In Matthews, the issue of proportionality seems to have been accepted to be a discrete issue, though not one which it was necessary to decide in that case. The important observation falls from Lord Walker in para.121:-

“The right of access to a court is not however absolute. It may be made subject to procedural restrictions but these must not so restrict or reduce the litigant’s right of access as to impair the essence of the right (in other words the restrictions must satisfy the test of proportionality).” This time the emphasis is mine.

We may have to decide whether the impairment of the essence of the right is a separate and discrete requirement or merely part and parcel of proportionality viewed overall.

Although Wall J. identified two main issues, there are in my judgment three matters which need consideration.

The starting point is to ascertain whether there was a dispute (‘contestation’) over a ‘right’ which can be said, at least on arguable grounds, to be recognised under national law and then a second question arises as to whether or not such right as she has can be classified as a “civil right” giving that phrase its autonomous Convention meaning.

The dispute in this case is over the enforcement of Mr Kehoe’s obligation to pay the child support maintenance in accordance with the assessment.

Her rights in domestic law are contained in the 1991 Act and an analysis of the Act will identify them. There does not seem to me to be much doubt about the scope of the Act. These are its cardinal features:-

Because the concept is autonomous and determined by reference to the content of the right, not its legal classification in domestic law, it is necessary to see how each party characterises Mrs Kehoe’s rights. Mr Drabble Q.C., counsel for Mrs Kehoe both here and below, paints with a broad brush on a large canvas. Paraphrasing his argument, he submits that the essence of this scheme is this:-

Mr Jay adopts a very different approach. He takes a microscope to the Act, focuses it very sharply and on this narrow view finds that the parent with care and the non-resident parent have no free-standing rights and obligations outside the scheme. The Act has changed the law and a parent with care now enjoys a different, and attenuated, package of statutory rights but no longer the statutory right to apply to the court for a periodical payment order or for its enforcement. It follows that she has no right to a maintenance award enforceable in her own name by her - his emphasis. So far as is material to this appeal she has no more than the right pursuant to and restricted by s.4(2) to apply to the Secretary of State, but not to the court, to arrange for collection of the child support maintenance payable in accordance with the assessment and for the enforcement of the obligation to pay child support maintenance. Whether or not to enforce and how to enforce are discretionary powers given to him. Section 8 (and s.33 for that matter) should not be read as preventing or restricting her pursuing her civil rights in court: these sections define what her rights are, and importantly what they are not. His simple but powerful point is that her rights to apply to the court no longer exist – the 1991 Act has divested her of her rights and invested them in the Secretary of State. The whole point of the scheme was that she should not have any right to move the court.

Both these contrasting cases have much in favour of them. Let me take first Mr Drabble’s case and list the points I find to be compelling in favour of upholding his submissions.

I turn to Mr Jay’s argument which I have already described as simple but powerful. He says a right to a maintenance award enforceable by Mrs Kehoe simply does not exist and article 6 cannot be deployed to create a right which has no legal basis because article 6 does not “guarantee any particular content for (civil) “rights and obligations” in the substantive law of the contracting states”: see James and Z.

This is the minimalist approach to human rights and for a long time it attracted me. However, for it to prevail, it is necessary to explain Golder away because the principles there do not sit comfortably with James and Z. Mr Jay attempts to do that by pointing out, correctly of course, that it was not in issue in that case that Mr Golder had a civil right to institute libel proceedings against a prison officer. So he says Golder does not assist Mrs Kehoe establish that she has civil rights of her own.

I agree that Golder can be distinguished on the facts, but the case remains important because it establishes the principle that a right to a court is enshrined in article 6. Thus there is a tension between, on the one hand, James and Z (article 6 cannot create a substantive right for you) and, on the other hand, Golder (a right to a court is implicit in article 6). The key to solving the problem lies in the word “substantive” and that leads inexorably to a consideration of what Lord Hoffmann in para. 33 of Matthews called the “slippery” distinction between substance and procedure. The need for and the reason for having to traverse this difficult terrain is given by Lord Walker in para. 142 of Matthews:-

“Although there are difficulties in defining the borderline between substance and procedure, the general nature of the distinction is clear in principle, and it is also clear that article 6 is in principle concerned with the procedural fairness and integrity of a State’s judicial system, not with the substantive content of its national law.”

Once again the kernel of Mr Jay’s argument is compelling. The whole of the 1991 Act and s.8 in particular is carefully crafted to replace the substantive rights of the mother which were available under the ordinary maintenance statutes. Section 8 does not set up a procedural bar to her pursuing her claim: it removes her rights altogether. As he eloquently put it, the whole point of the code was to divest her of her right and invest it in the Secretary of State. I must, therefore, deal with the three indicators identified by Mr Jay, linguistical, historical and constitutional.

Linguistically the argument favours Mr Jay. For reasons which should already be clear I am in no doubt that Mrs Kehoe has attenuated rights to apply to the Secretary of State but none to apply to the court.

The historical trail involves “tracing the history of the domestic rule and examining the underlying policy to which it gives effect”, per Lord Millett in Matthews, paragraph 79.

As I set out in paragraph 10 above, there is in my judgment no specific common law right to maintenance by way of periodical payments of sums of money whatever right the child might have had to be maintained in a general sense. The ordinary maintenance statutes recited in s.8(11) of the 1991 Act would have given Mrs Kehoe a right to apply to a court for an order that the father of her child make such periodical payments as may be specified. She then would have had the right to apply to the court for the enforcement of that order by one or more of the enforcement procedures available within the court’s armoury. I do not understand it to be disputed that these are substantive rights. For article 6 purposes they are civil rights. If that is the historical position, the question turns to effect of the 1991 reforms.

I have already set out the background to the 1991 Act. The White Paper made explicit in the package of proposals that:-

“a child support agency … will have responsibility for … the assessment, collection and enforcement of maintenance payments,” (para. 2.2), and,

“The functions of the Child Support Agency will therefore be … to take appropriate enforcement action at an early stage when payments are not made”, (para. 5.3).

I have no reason to doubt the correctness of certain general descriptions of that scheme as set out in the authorities placed before us. For example Morritt L.J. held in Department of Social Security v Butler [1995] 1 W.L.R. 1528, 1540G, a case where the court refused the CSA a freezing order:-

“The Child Support Act introduced a wholly new framework for the assessment and collection of the sums required for the maintenance of children by their parents. There is no provision for the enforcement of any maintenance assessment except by the Secretary of State and his methods of enforcement are limited in the way I have mentioned. … In my judgment the detailed provisions contained in the Act of 1991 which I have described show clearly that Parliament intended that all questions concerning the enforcement of maintenance assessments should be determined exclusively by the Secretary of State, the Magistrates’ Court or the County Court. The civil jurisdiction of the High Court is, in my view, necessarily excluded.”

Likewise Hale L.J. held in Huxley v Child Support Officer [2000] 1 FLR 898, 905 and 908:-

“It is important to bear in mind that the child support scheme is not simply a method for the State to recoup part of its benefit expenditure from the absent parents. It is a replacement both for the former method of doing this and for the court’s powers to make orders between individuals for periodical payments for the maintenance of children.

…

The child support system has elements of private and public law but fundamentally it is a nationalised system for assessing and enforcing an obligation which each parent owes primarily to the child. It replaces the powers of the courts, which can no longer make orders for periodical payments for children save in very limited circumstances.”

Finally, in R (Denson) v CSA [2002] EWHC 154 (Admin), [2002] 1 FLR 938, a case concerning Article 1 of Protocol 1 and Article 8 of the Convention Munby J. observed in para. 2:-

“It is quite clear in my judgment that – putting the matter generally – both the statutory scheme and the CSA’s administration of it are Convention compliant.”

These are valuable observations about the scheme in general but they do not address the specific question which falls for consideration in this case, that is to say whether under that scheme Mrs Kehoe has civil rights which engage article 6.

What this historical survey tells me is that a mother like Mrs Kehoe did have substantive rights to apply for and enforce periodical payments of child maintenance but as a matter of policy those rights were obliterated by s.8 and s.33 of the 1991 Act. This leads neatly to the constitutional implications.

What the 1991 Act has done, so it seems to me, is “to give the executive a power to make decisions about people’s rights which under the rule of law should be made by the judicial branch of government”, applying Lord Hoffmann’s test set out in para. 29 of Matthews. Mrs Kehoe’s rights are affected because she has an assessment in her favour, she is entitled to the money paid under it, she is affected by delay in payment and she is more affected by non-payment. It seems to me that the legislature was indeed “encroaching on territory which ought properly to be the province of the courts in a democratic society”, using Lord Nichol’s test in Wilson. Maintenance is for the courts under the ordinary maintenance statutes and spousal maintenance remains in the court’s jurisdiction. By reason of the rights of appeal built into the 1991 Act the assessment of child support is also ultimately subject to a court’s control. There is no check, however, on the danger of an arbitrary exercise of executive power if the court is not given some proper role in the enforcement process. To deny Mrs Kehoe her right to a court is to deny her a constitutional safeguard. Adopting the language of para. 35 of Golder, to take away the jurisdiction of the court to determine what is essentially a class of civil action and entrust it to organs dependent on the Government, which is what the 1991 successfully set out to do, is indissociable from a danger of arbitrary power, has serious consequences for the fundamental principles of law and so cannot be overlooked by the court.

Drawing all these strands together, I conclude that:

I am relieved I can deal with this shortly. The failure of the Secretary of State to enforce payment is plainly subject to judicial review and he can be compelled to act on her behalf. But judicial review is an inadequate remedy to ensure he does all he should do when he should be doing it. For example, as in part actually happened in this case, the Child Support Agency may start liability proceedings but abandon them in the face of the father’s disputing the arrears. The child support officer may have made no arrangement for the mother to prove how much (or how little) she had received. If he had gone on with the hearing without her, the justices may have determined how much was outstanding on the father’s unchallenged but false evidence. All this might happen without the mother knowing it until it was all over and too late to move the court. Judicial review would simply not be available to correct a range of these injustices brought about by the way in which the Secretary of State decided to respond to the mother’ application to arrange enforcement for her. Not being a party to the proceedings in the Magistrates’ Court, the mother has no right of appeal against the justices’ order. Her position may be unjustly affected and there is nothing she can do about it.

Thus I agree with the judge on this issue and with the reasons he gave for reaching it. The Runa Begum refinement that a full fact-finding jurisdiction is not necessary seems to me neither to add to nor detract from those conclusions.

I do not, however, agree with his conclusion that Mrs Kehoe will have a right to apply under s.7 of the Human Rights Act 1998 which will supplement her limited right of judicial review so as to fulfil the Alconbury criteria. The fallacy in the judge’s approach is pointed out by Mr Drabble. Damages can only be awarded when the Act is incompatible with article 6. One cannot say that the Act becomes compatible because you get damages for its incompatibility. Mr Jay made no attempt to support the judge on this question.

Thus I conclude in the words of Albert & Le Compte that the jurisdictional organs are not subject to subsequent control by a judicial body that has full jurisdiction and which does provide the guarantees of article 6(1). The effect of this is that the Secretary of State is placed above the law and this conclusion reinforces the constitutional argument. Her “old” civil rights have been removed and her new attenuated right is determined by a minister of the Crown. That imperils the constitutional safeguard of a right to a court guaranteed by the separation of powers and the rule of law to guard against arbitrary power and executive rule.

No real argument was advanced to Wall J. on this question as Mr Jay reserved his position. As he is entitled to do, he does now put the case to us. If he is successful, Mrs Kehoe may have won the Alconbury battle but will nevertheless have lost the incompatibility war.

There is clear authority that the right of access to the courts is not absolute and may be subject to limitation. As I have pointed out, the seminal case of Golder establishes that. Mr Drabble submits, however, that before one gets to a consideration of proportionality, the State must first show that the limitations do not restrict or reduce the individual’s access to the court in such a way or to such an extent that the very essence of the right is impaired. This time it is Mr Drabble who makes the simple but powerful point. He says that the essence of Mrs Kehoe’s right of access is utterly impaired because she has absolutely no right to any hearing before a court at all. He relies on Philis. Mr Philis’s complaint was upheld because he could not sue for his fees and had to rely on the T.E.E. to bring a subrogated claim against his client. The court referred to the Ashingdane case but in its application of the principles there set out (see para. 52 above) the court said only this in para. 59 of its judgment:-

“This right of access, however, is not absolute but may be subject to limitations, since the right by its very nature calls for regulation by the State. Nonetheless the limitations must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.”

The court does not go on to add, as almost all of the other cases we have been referred to do, the standard exposition of the proportionality rule. Furthermore the argument noted in the report does not, to my mind at least, demonstrate that any strong proportionality argument was even addressed to the court. Thus the conclusion in para. 65 was only this:-

“In conclusion, since the applicant was not able to institute proceedings, directly or independently, to seek the payment from his clients – even to the T.E.E. in the first instance – of fees which were owed to him, the very essence of his “right to a court” was impaired, and this could not be redressed by any remedy available under Greek law.”

This case is difficult to place in the traditional scheme of things. As Mr Jay points out, it can be distinguished from the case before us in the sense that at least Mrs Kehoe has the remedy of judicial review to compel the Secretary of State to enforce for her whereas all Mr Philis could do was sue the T.E.E. for damages for failure to act on his behalf. In that way Mrs Kehoe does has an enforceable right to get her claim before the courts, albeit that she is not a party to those proceedings. Her case is thus capable of being heard within a reasonable time by an independent and impartial tribunal. It is admittedly not a totally fair hearing because she is not there. Her right to a fair trial is certainly restricted but not so restricted that the very essence of her right of access to the court is impaired.

Moreover, I do not see this as a discrete point rather than being one aspect of an overall view of proportionality. The formulation in Z that the court will examine impairment of the essence of the right “and in particular whether it pursued a legitimate aim and there was a reasonable relationship of proportionality …” suggests to me that the emphasis is very much on proportionality. In any event I must and I am content to follow Lord Walker’s pithy direction in para.121 of Matthews with emphasis added by me:-

“It may be made subject to procedural restrictions but these must not so restrict or reduce the litigant’s right of access as to impair the essence of the right (in other words the restrictions must satisfy the test of proportionality).”

Do the restrictions on Mrs Kehoe’s right of access satisfy that test? In deciding whether the restriction was necessary in a democratic society and whether it pursued a legitimate aim the State must be afforded a margin of appreciation. The White Paper set out the need as I have already recited. More than 750,000 lone parents – about two-thirds of the total number – were dependent on income support. Only 23% of those receiving income support received child maintenance payments. The cost to the taxpayer was substantial. The aim was to provide for an enhanced scheme of enforcement with remedies available to the Secretary of State that were not available to the court. The assessment could not be challenged when a liability order is being made and there is no power to remit arrears.

The evidence before the court overall demonstrates to my mind that there was a need for reform certainly in relation to those receiving social security benefits who make up far and away the greatest proportion. The aim of the scheme was legitimate. The same pressing need may not have existed for those who were not receiving state benefits but there is every logic and merit in having a unified approach. Of course the minority are entitled to fair and proper treatment but this was essentially a policy decision on social grounds. It is not as if the scheme when properly implemented does not bring advantages to the parent not receiving benefits. The enforcement proceedings taken on behalf of that parent by the Secretary of State relieves the parent of the cost and burden of proceeding herself and the degree of anonymity given by the proceedings being taken in the name of the Secretary of State can serve the salutary good of reducing adversarial heat in fraught cases of parental separation. The range of the Secretary of State’s enforcement powers are wider than the ordinary court enforcement powers, e.g attachment of earnings and disqualification from driving, and that brings benefit to all parents with care.

Quoting Lord Hoffmann for the last time, he said in para.59 of Runa Begum:-

“Finally, I entirely endorse what Laws L.J. said in Beeson’s case [R (Beeson’s Personal Representative) v Dorset County Council [2002] EWCA Civ. 1812], at paras.21-23, about the courts being slow to conclude that Parliament has produced an administrative scheme which does not comply with constitutional principles.”

I have come to the conclusion that there was a reasonable relationship between the legitimate objectives and the means used to achieve them. The test of proportionality is satisfied and so the 1991 Act is not incompatible with article 6. It follows that Mrs Kehoe’s appeal must also be dismissed.

The important question raised in these proceedings is whether or not the provisions of the Child Support Act 1991 (The Act) which preclude the respondent from playing any part in the enforcement of maintenance assessments made by the Secretary of State are compatible with the provisions of the European Convention on Human Rights, and in particular Article 6(1). Mr Drabble QC on behalf of the respondent, submits that they amount to a restriction on a parent’s access to the courts to determine his or her civil rights and accordingly amount to a breach of Article 6(1) as explained by the European Court of Human Rights in Golder –v- United Kingdom [1975] 1 EHRR 524. Mr Jay, QC, on behalf of the appellant, submits primarily that the Act is self contained, in that it provides the legal structure within which all relevant rights and obligations are to be found. There is accordingly no civil right which can be asserted by the respondent entitling her to enforce, or play any part in the enforcement of, the assessment made by the appellant of the father’s liability to maintain the children of the family. His subsidiary submissions are that even if any such civil right can be identified, the scheme of the Act is a permissible and proportionate restriction on the right of access to the courts in the public interest, and that, in any event, the courts retain a sufficient supervisory role to meet the requirement that there should be access to an independent judicial determination of that right.

Ward LJ has set out the underlying facts. He has also set out fully the legal and legislative history of the development of the court’s powers to order maintenance to be paid for children which demonstrates the difficult social and moral problems which culminated in the passing of the Act all of which I gratefully adopt. I am also grateful for his extensive citations from both United Kingdom and Strasbourg authorities which make it unnecessary for me to do more than refer to the salient paragraphs for the purposes of my judgment.

Although we are concerned in this case with the question of whether or not a “civil right” in the Convention sense is engaged, which is a matter of Convention Law, and for that purpose has an autonomous meaning, it seems to me that it is essential to start from a consideration of the position in domestic law as Lord Bingham said in Matthews –v- Ministry of Defence [2003] 1AC 1163 at paragraph 3.

In Huxley –v- Child Support Officer [2000] 1 FR 898, Hale LJ provided a helpful, and it seems to me authoritative, analysis:

“It is important to bear in mind that the child support scheme is not simply a method for the State to recoup part of its benefit expenditure from the absent parent. It is a replacement both for the former method of doing this and for the court’s powers to make orders between individuals for periodical payments for the maintenance of children. The person with care may or may not be on benefit and may move between the two. The calculation may differ in such cases but the formula does not …

The child support system has elements of private and public law but fundamentally it is a nationalised system for assessing and enforcing an obligation that each parent owes primarily to the child. It replaces the powers of the courts, which can no longer make orders for periodical payments for children save in very limited circumstances. Unless she can secure a voluntary agreement at least as high as that the CSA would assess, the [parent with care] is expected to look at the Agency to assess her child support according to the formula, whether or not she is on benefit. The fact that it does her no direct good if she is on means-tested benefits, and that much CSA activity so far has been in relation to parents on benefit, does not alter the fundamental characteristics of the scheme.”

This passage was cited with approval by Munby J in R (Denson) –v- The Child Support Agency [2002] 1 FLR 938. That was a case in which a challenge was made to the scheme on the basis that it infringed Article 1 of Protocol 1 to the Convention and Article 8 of the Convention. Having cited the passage to which I have referred, Munby J said at paragraph 22 of the judgment:

“It is quite clear in my judgment that – putting the matter generally – both the statutory scheme and the CSA’s administration of it are Convention compliant. The Commission and Court have thus far declared all challenges manifestly ill founded. But the matter does not end there. The Strasbourg jurisprudence is perfectly clear.”

It should however be noted that the issues with which we are concerned in this appeal were not raised in any of the Strasbourg cases to which the judge referred. Nonetheless the self contained nature of the scheme is a critical feature of its effect in domestic law. This was underlined in an earlier decision of this court in Department of Social Security –v- Butler [1995] 1 WLR 1528. This was a case in which the Department sought an injunction in aid of the enforcement of an assessment, a method not expressly provided for in the Act. Morritt LJ said at page 1540 C:

“Likewise it is well established that where a statute creates a new right which has no existence apart from the statute creating it, and at the same time proscribes a particular method for enforcing it in a particular court, it is, in general, to that remedy in that court alone that recourse must be had …. Whether or not that is so in a particular case depends on the construction of the Act in question.

As I have indicated the Secretary of State claims in respect of the statutory right correlative with the obligation expressed in Section 1(3) of the Act of 1991. But that obligation and right is not a civil debt in any ordinary sense. First the obligation may only be enforced by the Secretary of State and not by any other person who may be stated to be the payee in the maintenance assessment……

The CSA 1991 introduced a wholly new framework for assessment and collection of the sums required for the maintenance of children by their parents. There is no provision for the enforcement for any maintenance assessment except by the Secretary of State and his methods of enforcement are limited in the way I have mentioned….

No doubt clear words or a necessary implication are required to exclude the jurisdiction of the court. The suggested exclusion in this case is the High Court’s ordinary civil jurisdiction which includes the power to include injunctions. In my judgment, the detailed provisions contained in the Act of 1991 which I have described show clearly that Parliament intended that all questions concerning the enforcement of maintenance assessments should be determined exclusively by the Secretary of State, the Magistrate’s Court or the County Court. The civil jurisdiction of the High Court is, in my view necessarily excluded.”

These decisions, together with the analysis of Ward LJ as to the effect of the Act seem to me to make it abundantly plain that the Act’s intention was to replace, save as expressly retained by the provisions of the Act itself, any pre-existing rights of either a child or a parent to periodical payments for the maintenance of that child. And those decisions accord precisely with the clear legislative intent which the history related by Ward LJ identifies. The consequence in domestic law is that the respondent has only such rights as are the necessary consequence of the provisions of the Act. She accordingly has a right to require the Secretary of State to make an assessment under Section 4(1). He must thereafter deal with her application in accordance with Section 11 of the Act. Under Section 4(2) she may apply to the Secretary of State requesting the Secretary of State to arrange for the collection of child support and the enforcement of the obligation to pay child support and although the section gives a discretion to the Secretary of State as to whether or not to accede to such request, the exercise of that discretion is judicially reviewable. And clearly any money recovered by the Secretary of State by way of enforcement is money that he is under a duty to account for to the respondent both in public and in private law.

The position in domestic law is, accordingly, clear. The respondent has no right which she can exercise against the father entitling her to play any part in the assessment or enforcement process. But that, in one sense, begs the question. Whilst it is trite Convention Law that Article 6 has nothing to say about the content of an individual’s civil rights (see Lord Hope in Matthews at para 51) being essentially concerned with procedural and not substantive law, the distinction between the two is, as Ward LJ has demonstrated, somewhat elusive. And as the European Court of Human Rights said in Fayed –v- United Kingdom (1994) 18 EHRR 393:

“It may sometimes be no more than a question of legislative technique, whether the limitation is expressed in terms of the right or the remedy.”

Mr Drabble’s argument is essentially based on the proposition that Section 1(3) of the Act creates a duty on the absent parent to make such payments as are required by a maintenance assessment, which when coupled with the right of the parent with care to receive such sums as are paid, only makes sense if the parent with care has the right to be paid by the absent parent or at the very least the right to be involved in the enforcement process. The Act therefore puts in place a procedural bar on access by the parent with care to the court to resolve any dispute over the right to payment or enforcement of payment. The restriction amounts to the withdrawal of pre-existing legal rights and the substitution of a power in the executive which should properly be the function of the courts. Accordingly he submits that the principle identified by Lord Hoffmann in his speech in Matthews at paragraph 29 has been infringed.

This is an attractive argument for the reasons given by Ward LJ. As a matter of instinct, it seems unsatisfactory that the person who will ultimately benefit from the payments which the absent parent is under a duty to make should not have a right to at least a say in the enforcement process. As in the present case, there may well be occasions where the executive, that is the Agency, may be reluctant to engage in a lengthy or complicated dispute. Its priorities are inevitably different from those of the parent or any other person who has the care of the child.

But it seems to me that this argument overlooks the fundamental character of the scheme created by the Act. It has to be remembered, as the historical analysis of Ward LJ shows, that the obligation to pay and the right to receive maintenance for or on behalf of the child has always been dependent upon statute. The mere fact that the statutes in question gave effect to a moral and social imperative cannot hide the fact that the only relevant rights prior to the Act were the rights which could be found in the statute in force at the time. In these circumstances, I cannot accept the argument that there is a right, which cannot be derived from the statute itself which could be the subject of a dispute which the court should properly determine, for that is the effect of Mr Drabble’s argument.

The statements of constitutional principle by Lord Hoffmann in Matthews at paragraph 29 and Lord Nicholls in Wilson –v- First County Trust Ltd (No 2) [2003] UKHL 40 [2003] 3WLR 568 at paragraph 35 (set out in paragraphs 37 and 38 above) do not, it seems to me, assist Mr Drabble. Both their Lordships sought to identify what was objectionable as a matter of principle. And both considered that the ultimate question was whether the provisions of the national law prevent a dispute which properly belongs in the province of the courts from being so determined. It is therefore easy to be seduced by the argument that the appellant simply seeks to assert a right which had traditionally been the province of the court and accordingly this principle has been breached. And I fully appreciate that we are concerned with substance and not form, so that the drafting technique should not determine the issue. But the scheme and structure of the Act leave no room, it seems to me, for the argument that a procedural bar has been placed in the way of an identifiable right. The scheme is built firmly on the central premise that the assessment collection and enforcement of maintenance orders should all be in the hands of the Secretary of State, or the Child Support Agency. The necessary consequence is that there had to be a redefinition of the rights and obligations of the parents, and of those with care of children. That redefinition, which resulted in the respondent only having the rights which I have identified in paragraph 82 above was not a drafting device, but was the necessary consequence of the philosophy of the Act.

It follows that there is no justification in departing in this case from the general principle that Article 6 is concerned only with disputes “which can be said, at least on arguable ground, to be recognised under domestic law”: James –v- United Kingdom (1986) EHRR 123 at para 81. The cases cited to us in which a breach of Article 6(1) has been found do not, in my view, affect this conclusion. All were cases where there was an indisputable civil right. In Golder, the impediments placed in the way of Mr Golder as a prisoner prevented effective access to the courts to pursue his action for libel. In Phylis –v- Greece (1991) 13 EHRR 741, the applicant had an undoubted contractual claim; the impediment was that the only body which was entitled to bring proceedings was the Technical Chamber of Greece. In Hornsby –v- Greece [1997] 24 EHRR 250 the applicants had established that the authorities were acting unlawfully; the problem was that the authorities simply failed to comply with the court’s order. In none of these case, therefore, was the existence of the underlying right in question.

I would accordingly allow the appeal on the grounds that the respondent is unable to assert that she has an arguable civil right which entitles her under Article 6(1) to a determination by a court.

My conclusion therefore makes it strictly unnecessary to consider the subsidiary points. Had it been otherwise, I would have agreed with Ward LJ, for the reasons which he and Wall J have given that judicial review would not have been a sufficient control mechanism by the courts to satisfy the requirement of access to an independent and impartial tribunal if she had a right to payment of the assessed maintenance, or a right to enforce such maintenance. I would also have agreed with Ward LJ’s conclusions as to proportionality. They seem to me to underline the correctness of my conclusion that the respondent had no arguable civil right which engaged Article 6(1). Finally, I also agree with Ward LJ that Wall J’s reason for concluding that the scheme was compatible with the Convention is fundamentally flawed, for the reasons that he, Ward LJ, has given.

I too agree that the cross appeal should be dismissed. But since the other two members of the court are not agreed as to whether the respondent’s civil rights within the meaning of Article 6(1) are engaged, I propose to comment briefly on that issue. In so doing, I recognise at the outset that the issue is far from easy to determine.

Some emphasis has been placed by the respondent on the principle established in the Strasbourg jurisprudence that the concept of “civil rights and obligations” is autonomous and not to be interpreted solely by reference to the domestic law of the state in question: see Konig –v- Federal Republic of Germany [1978] 2 EHRR 288; Benthem –v- The Netherlands [1986] 8 EHRR 1. But this principle appears to have more to do with the classification of the right in question, in other words whether the right is to be seen as a civil one, rather than with whether the right itself exists. Thus a right may be regarded as a civil one, even though it is asserted against a public authority and may according to domestic law be regarded as a public law matter and not a civil law matter. Hence the European Court of Human Rights in the Konig case went on to say in paragraph 89:

“Whether or not a right is to be regarded as civil within the meaning of this expression in the Convention must be determined by reference to the substantive content and effects of the right – and not its legal classification – under the domestic law of the state concerned.”

But whether a right exists at all, at least arguably, is a matter for the domestic law of the state. As Lord Hope said in Matthews –v- Ministry of Defence [2003] UKHL 4; [2003] 1 AC 1163, at paragraph 51:

“Article 6(1) does not have anything to say about the content of the individual’s civil rights, nor does it impose an obligation on the state party to confer any particular rights in substantive law on the individual.”

That accords with such Strasbourg decisions as H –v- Belgium [1988] 10 EHRR 339 (paragraph 40) and James –v- United Kingdom [1986] 8 EHRR 123) paragraph 81).

In the present case, the civil right relied on by the respondent is one as against Mr Kehoe, not one said to exist against the appellant in the form of a right enforceable by judicial review. Her right to an assessment is not in issue. It is the alleged right to be provided with money by her husband to help meet the cost of maintaining their children that she contends she is being prevented from enforcing by action against her husband in the courts. The vital question, therefore, is whether she, at least arguably, has a right against her husband for such payment as a matter of domestic law.

One recognises that the answer to that question cannot simply be determined by asking whether she has an enforceable right, since that lack of enforceability is the very feature which gives rise to her complaint. This is why there is so often an intractable problem in determining whether there is a substantive right with a procedural bar to its enforcement or no substantive right at all. In the present case, I agree with Latham LJ that one is dealing with a legal framework which is entirely statutory and it is therefore to those statutory provisions that one has to look in order to determine this issue. Under those provisions it is for the Secretary of State (or the Child Support Agency) to assess and enforce the obligation owed by the absent parent to the child. Thus one finds that Parliament in the legislation has chosen to confer on the Secretary of State a discretion as to whether or not to take enforcement proceedings (section 4 of the Act), in a situation where the actual assessment of the absent parent’s liability is a mechanical one, achieved by the application of a formula. That assessment of liability does not reflect a number of potentially relevant factors, such as the availability to the absent parent of substantial capital (see Phillips –v- Peace [1996] 2 FCR 237). The Child Support (Maintenance Calculations and Special Cases) Regulations 2000 set out a relatively crude method of calculation, and it seems clear that Parliament did not want the resulting amount to be recoverable by the parent with care as of right. It was necessary to allow for the inevitable variation in factual circumstances, and one of the methods adopted for making such an allowance was to give the Secretary of State a discretion as to the degree of enforcement. But this indicates that under the legislation the parent with care does not have a right as such, as against the absent parent, to any particular sum of money, even after an assessment has been made. This is a deliberate feature of the statutory framework provided by the 1991 Act, and it means that it cannot be said that the parent with care enjoys any statutory right as against the absent parent to a particular sum as a maintenance payment. Nor, as Ward LJ’s judgment with its impressive historical survey indicates, does any such right exist at common law.

In those circumstances, I find myself agreeing on balance with the reasoning and the conclusion on this issue set out by Latham LJ. If Mrs Kehoe does not have an arguable legal right in domestic law to a child maintenance payment of any particular amount or even at all from her husband, then her civil rights in the sense used in Article 6(1) are not engaged. Consequently in my judgment the Secretary of State’s appeal should be allowed.