K, R (on the application of) v Secretary of State for Work and Pensions

I am acutely aware of the fact that in Re MCA; HM Customs and Excise Commissioners and Long v. A and A (Long Intervening) (CA) [2003] 1 FLR 164 at 183-4, Schiemann LJ deprecated the tendency of judgments at first instance to be longer than strictly necessary for the proper resolution of the case. Whilst acknowledging the warning contained within this observation, and bearing in mind that it is my primary function in this case to identify the crucial legal points and to advance my reasons for deciding them as I have, it is my experience that when, as here, a judge at first instance hears skilled and detailed argument from leading counsel on both sides on a finely balanced point of public importance, it is necessary sometimes to set out the background material and the arguments in some detail in the judgment, in order both to attempt to do them justice and to explain why one argument has ultimately prevailed over another.

That is the case here. The point at issue is, in my view important and the arguments advanced by leading counsel on each side were both cogent and detailed. The point also requires an examination of a number of English authorities and cases decided by the European Court of Human Rights (EctHR). The result is that this judgment is longer than I had intended it to be, and no doubt longer than is strictly necessary for the bare reasoning which underlies my conclusions.

In an attempt to mitigate the judgment’s length and to avoid unnecessary reading, I have divided it into identified sections, and provided an index. This will, I hope, enable the reader who wishes simply to know the outcome and my reasons for reaching it to avoid many of what I nonetheless regard as the necessary building blocks.

This judgment is, accordingly, written under the following headings: -

Mrs. Mary K (the claimant) seeks a declaration under section 4(2) of the Human Rights Act 1998 (HRA 1998) in the following terms, namely that: -

HRA 1998 came into force on 2 October 2000. Nothing turns on the terms of section 4, which gives me the jurisdiction to make the declaration sought, and which I need not set out. The terms of Article 6 of the European Convention on Human Rights (the Convention) are, of course, well known, and for the purposes of this judgment, it is only necessary to set out the first sentence: -

As will be apparent from the statement of the relief sought in paragraph 5, the claimant does not seek to argue that the entire scheme for the assessment and collection of child maintenance contained within the 1991 Act and the Regulations issued pursuant to it is not HRA 1998 compliant. In particular, she makes no complaint about the framework within which assessments for child maintenance against absent parents (APs) are made.

The complaint, in a nutshell, is limited to the fact that when it comes to the enforcement of maintenance due from the AP, the PWC is precluded by the scheme from taking those proceedings upon herself, and is denied access to the court in her own right or acting on behalf of her children. The PWC is thus dependent upon the decisions and actions taken in relation to enforcement by the Secretary of State acting through the medium of the Child Support Agency (the Agency). The PWC is not a party to the enforcement proceedings; she has no status in them; she cannot take or influence decisions relating to them; and if the outcome is that the Agency fails to enforce the assessment and collect the money due under it, the PWC is effectively bound by that outcome. This, she submits, restricts her access to the court in “such a way or to such an extent that the very essence of the right is impaired”, the phrase used by the ECtHR in Ashingdane v. United Kingdom (1985) EHRR 528 at 546/7 paragraph 57

The Claimant has a second limb to her argument. On the premise that her rights under Article 6 are engaged, she seeks to bring an action under HRA 1998 section 7 based on what she submits is the Agency’s undue delay after 2 October 2000 in taking steps to enforce the child maintenance assessments obtained in this case. The Claimant invites me to make a declaration that this delay on the Agency’s part constitutes a breach of her Article 6 rights, and to give directions designed to enable the amount of damages to be assessed.

Unsurprisingly, the submission of the Secretary of State is that the 1991 Act is HRA 1998 compliant. On his behalf, counsel submit that Article 6 is not engaged; that the 1991 Act and the attendant regulations comprise an overall statutory scheme designed to facilitate the proper assessment and efficient collection of child maintenance, and to ensure that APs fulfil their proper obligations to their children. The 1991 Act, moreover, provides the Agency with a full spectrum of powers in relation to enforcement, several being wider than those available to a litigant attempting to enforce a court order in his or her own right.

In the alternative, counsel for the Secretary of State submit that if, contrary to their primary submission, Article 6 is engaged by the exclusion of PWCs from the enforcement process, the 1991 Act is nonetheless HRA compliant on what may loosely be called Alconbury lines: - see R (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 (Alconbury) discussed in detail in the section headed Is the Scheme under the 1991 Act HRA 1998 compliant on Alconbury principles? - see paragraphs 120 to 137 below. The PWC, they submit, does have access to a court (the Administrative Court) which has “full powers” by way of judicial review and other means to provide an appropriate remedy.

As to delay post 2 October 2000, counsel for the Secretary of State accepted that, in principle, if the claimant’s article 6 rights were engaged, unreasonable and unwarranted delays might amount to a breach of those rights where the effect of the delay was effectively to thwart their exercise. They submitted, however, that the chronology of the case did not demonstrate any unwarranted delay on the part of the Secretary of State post 2 October 2000 such as to constitute an unreasonable exercise of his discretions under the 1991 Act and/or an effective denial of the Claimant's rights.

In deciding whether the claimant is entitled to the relief she seeks, there are, it seems to me, three essential questions which I must address. They are:

The arguments on both sides were skilfully displayed, and the issues they raise are of considerable importance for the day to day operation of the Agency. I propose, accordingly, to set the arguments out in some detail. Firstly, however, I must deal with the policy behind, and the scheme contained within, the 1991 Act.

In a witness statement filed on behalf of the Secretary of State, Sandra Coulthard, a senior executive officer employed by the Department for Work and Pensions set out the policy considerations underlying the 1991 Act. She says it was the policy from the outset that the Agency should provide a collection / enforcement service in respect of child maintenance. The intention was that the Secretary of State, having taken over jurisdiction, should have responsibility for collecting the maintenance. This would relieve the PWC of the stress, and, often, the expense of taking the other parent to court. It was aimed to increase the amounts actually received by the PWC.

Ms Coulthard cited from and relied upon the Government White Paper, Children Come First (Cm 1264) published in October 1990, volume 1 paragraphs 2, which reads: -

Ms Coulthard described the policy behind the creation of the Agency in the

I gratefully adopt the succinct summary of the 1991 Act given by Latham J (as he then was) in Secretary of State for Social Security v Shotton and Others (Shotton) [1996] 1 FLR 345, 348, a decision which otherwise does not impinge on what I have to decide. Having set out the scheme, I will then identify those parts of the 1991 Act which are of particular relevance.

The scheme of the Act is as follows. Section 1 imposes responsibility for maintaining a child on each parent. An "absent" parent (that is the parent who does not have care of the child), discharges that obligation by making payments of such amount as is determined by a maintenance assessment made under the Act. By s 4 of the Act, either the parent with care of the child, or the absent parent may apply to the Secretary of State for a maintenance assessment to be made, and, again on request, to arrange for the collection of such maintenance, or the enforcement of the obligation to pay such maintenance.

For present purposes, it is necessary to set out a number of sections of the 1991 Act in greater detail. Section 1 provides: -

Section 2 deals with the welfare principle, and imposes a specific duty on the Secretary of State : -

Section 3 defines the terms “qualifying child”, “absent” (now “non-resident”) parent (AP); “person with care (PWC)”, and “child support maintenance. Section 4 set out the procedure for an application for child support maintenance. It provides that: -

The 1991 Act draws a clear distinction between cases in which PWCs are in receipt of State benefits and those where they are not. In section 4(1), the PWC who is not on benefit is given an entitlement to apply for a maintenance assessment. By contrast, section 6(1) provides that where the PWC is in receipt of income support, income-based job-seekers allowance or “any other benefit of a prescribed kind”, the PWC must if she is required to do so by the Secretary of State, authorise the Secretary of State to take action under the Act to recover child support maintenance from the AP.

In the instant case, there were brief periods during which the claimant was in receipt of benefits. It is, however, common ground between the parties that this is not a benefits case. For reasons which will be readily apparent, the distinction is an important one, particularly when it comes to the enforcement of a maintenance assessment. Put simply, as long as PWCs fall within section 6, then subject to the nature of the benefits in payment, the entitlement to payments under any maintenance assessment enure not to the benefit of the PWC, but to the Secretary of State.

The statutory scheme excludes the jurisdiction of the court “to make, vary or revive” any child maintenance order. The relevant parts of section 8(1) to (3) of the Act provide as follows: -:

Section 8(11) of the Act defines “maintenance order” as an order for periodical payments made under various Statutes, including Part II of the Matrimonial Causes Act 1973 and Schedule 1 to the Children Act 1989. Accordingly, the effect of these provisions is that where the general rule applies (as in the instant case) the armoury of enforcement powers under sections 29 to 41 of the Act reside with the Secretary of State alone. Thus the Claimant in this case has no equivalent enforcement powers under the Act exercisable in her own name, and cannot invoke in her own name any of the enforcement powers provided by the different Statutes identified in section 8(11).

The general rule laid down in section 8(3) is subject to various exceptions laid down elsewhere in the section, none of which applies in the instant case. In my judgment, however, it is relevant to point out that the scheme permits parents to opt out of it, if they are able to agree the level of child maintenance and obtain a court order by consent. In such cases, the PWC is empowered to take enforcement action in her own name. But she does so in respect of non-Child Support Act maintenance. Mr. Jay QC and Mr. Forsdick, for the Secretary of State helpfully summarised these provisions in the following way:

Some reliance was placed by the Secretary of State on the nature of his enforcement powers. Ms Coulthard pointed out in her statement that the Secretary of State had the power under section 31 of the Act to require the AP’s employer to deduct child support maintenance direct from the AP’s earnings. Such a deduction of earnings order did not require an application to the court. This power, which she said was the principal and most effective method used to enforce maintenance payments, contrasted with the position of a private individual, who would be obliged to apply to the court for such an order.

Ms Coulthard also pointed out that the Secretary of State had the power to apply to the magistrates’ court for a “liability order “ under section 33, which could itself be enforced in various ways, including distress and sale of the AP’s goods under section 35, garnishee or charging orders in the county court (section 36) and finally by an application for the AP’s committal to prison or an order for him to be disqualified from holding or obtaining a driving licence under section 39A. Furthermore, the Secretary of State has powers to obtain information under the Child Support (Information, Evidence and Disclosure) Regulations 1992, to which a PWC would not have access.

In brief, the Secretary of State submitted that his powers of enforcement under the Act were significantly stronger that those which would be available to a PWC if he or she were able to pursue the maintenance debt under the common law or under the Act directly.

I do not disagree with the proposition that, if properly used, the powers given by the Secretary of State to collect and enforce child support maintenance are adequate for their purpose. It is, I think, however, worth pointing out that because the powers of the Secretary of State are those given to him by the Act, he has no power to apply - as a PWC would - for a Mareva injunction: - see Department of Social Security v Butler [1995] 1 WLR 1528. However, this is not the main thrust of the argument. I did not understand Mr. Drabble to submit that the collection and enforcement powers of the Secretary of State were inadequate. The main thrust of his objection is that the Claimant as PWC is wholly excluded from the enforcement process.

Although the chronology of the case is lengthy, and the detail complex, for present purposes the facts can be stated quite shortly. The history of the Claimant’s attempts to secure child maintenance from her former husband spans a period from 24 December 1993 when she first applied for a maintenance assessment for her children, to 13 January 2003, when the Agency closed the file, having established that the Claimant was permanently resident in Spain. A helpful and very detailed chronology has been prepared by the Agency, but for present purposes, I gratefully plunder the synopsis prepared by Mr. Jay QC and Mr. Forsdick.

The Claimant married her husband, Andrew K, on 22 March 1983. They have four children, E, born on 10 December 1982, S born on 17 January 1984, I born on 9 April 1987 and N born on 21 January 1989. The family moved from Dublin, where they owned a property, to London, where they rented a furnished house, in 1992. Mr. K was self-employed, working on contracts carrying out railway track maintenance and block paving. He also worked for a company run by a cousin. The Claimant says that in May 1993, when the marriage broke down, Mr. K was earning in the region of £40,000 a year.

On 17 December 1993, the Claimant filed a petition for divorce and made her first approach to the Agency . Her application for an assessment under section 4(1) of the 1991 Act was received by the Agency on 24 December 1993.

Mr. K moved out of the family home on 1 January 1994. The Claimant asserts that there was an oral agreement that he would pay her £150 per week maintenance towards the support of the children. She says that some voluntary payments were made, but that they rapidly ceased. Her case is that she had only limited income from a part-time evening job and child benefit, and even when she obtained full time secretarial employment later in 1984, she was struggling financially.

Following the application under section 4(1) of the 1991 Act for a maintenance assessment on 24 December 1993, it was very properly accepted by Mr. Jay that the Agency should have sent a Maintenance Enquiry Form (MEF) to Mr. K. It did not do this until 25 May 1995. Mr. Jay accepted that when child support maintenance is assessed, the liability to make payments starts from the “effective date”, which is generally linked to the date of issue of the MEF. The Agency’s failure to send the MEF until May 1995 therefore resulted in the Claimant losing the opportunity to receive maintenance for the period between December 1993 to May 1995.

On 1 February 1999, the Claimant was paid £10,381.14 by the Secretary of State, this being a sum designed to reflect the amount of child support she might have received up to that point, had the MEF been dispatched at the appropriate time. This payment was, of course, made some 17 months before HRA 1998 came into force, and was made on an ex gratia basis under a voluntary compensation scheme operated by the Agency.

Mr. K returned the MEF on 13 July 1995 accepting paternity. Insufficient information was provided to allow a Full Maintenance Assessment (“FMA”) to be made and so an interim maintenance assessment (“IMA”) was issued with effect from 5 October 1995.

Mr. K’s liability has changed many times since that date. He has on various occasions during the lifetime of the case been described as self-employed and as a company director. His employment has changed several times and it has proved difficult to obtain information from him. Mr. Jay submits that collection from APs who are self-employed, or company directors, is a significant problem for governments in most countries.

A schedule of payments made by Mr. K over the years has been produced. The Grounds of Opposition filed by the Secretary of State provide some detail of the various assessments and enforcement action taken over time. There is a full diary of events running to many pages. For present purposes, I once again gratefully borrow the summary in Mr. Jay and Mr. Fosdick’s skeleton argument: -

by March 1996 arrears of £4244 had accumulated;

It will, of course, be apparent that as HRA 1998 did not come into force until 2 October 2000, any claim by the Claimant that the Agency has failed to act or has been guilty of unreasonable delay relates only to the period after that date.

Unsurprisingly, the Claimant’s evidence is a litany of complaints about the conduct of the Agency and its consequences for herself and her children. For present purposes, however, I can summarise her position by citation of the final two paragraphs of her statement in support of the current proceedings dated 13 May 2002: -

The Claimant’s case is not, however, advanced under Article 8 of the Convention, nor under Article 14, although permission to argue the latter was given by Maurice Kay J on 30 July 2002. The case is argued solely under Article 6. I therefore turn to examine the arguments advanced on the Claimant’s behalf.

The basic thesis which Mr. Richard Drabble QC and Mr. de Mello advanced on the Claimant’s behalf is encapsulated in the phraseology of the relief sought in paragraph 5 of this judgment. The point, they submitted, was one of fundamental principle. This was not a case in which the claimant was in receipt of benefit. Accordingly the State had no substantial interest in the enforcement of the maintenance assessment. It was the Claimant and not the government that stood to gain from successful enforcement, yet she was forced to use that which the government itself described as a “collection service”, and the terms of section 8 of the 1991 Act prevented any by-passing of the use of that service by direct application to the civil courts. The enforced use of an intermediary in this way was incompatible with the Strasbourg case-law on Article 6; and in particular with the case of Philis v Greece (1991) 13 EHRR 741 (Philis).

Mr. Drabble began his analysis by examining the position as it was under domestic law before the commencement of the Act of 1991. Under that law, a parent in the claimant’s position (she was, of course, married to her children’s father) could have applied for maintenance for her children under any one of three statutes: - (1) Part II of the Matrimonial Causes Act 1973 (in the context of proceedings for divorce or judicial separation); (2) the Domestic Proceedings and Magistrates Courts Act 1978 (if she wished to proceed in the Magistrates’ Court which, of course, has no jurisdiction over divorce or separation) or (3) Schedule 1 to the Children Act 1989.

Those statutory provisions, Mr. Drabble argued, self-evidently engaged the civil rights of the parent caring for a child by conferring a right on that parent to apply to the court for a maintenance order against the other parent either payable to the children themselves or to the parent on behalf of the children. The court’s decision whether to make the order, and its decision as to quantum, involved weighing a number of factors, including factors relating to the child, but that did not prevent the right to apply for and receive the maintenance payments for the benefit of the child having all the characteristics of a civil right. There was no public law element. If husband and wife disagreed on the issue of whether a maintenance order should be made, or on the amount to be paid, there was a dispute about the wife’s right to receive maintenance for the benefit of the child and the husband’s obligation to pay it.

That analysis, Mr. Drabble submitted, fitted comfortably within the classic formulation of the scope of Article 6(1) as stated Grosz, Beatson & Duffy Human Rights: The 1998 Act and the European Convention (2000), p222, para C6-11:

In this context, Mr. Drabble relied upon the decision of the ECtHR in Airey v Ireland (Airey) 2 EHRR 305 at p314, para 21 where the Court observed that:

Mr. Drabble then submitted that the right of the parent caring for the child to be paid under the terms of a court order, and the obligation of the other parent to pay pursuant to those terms were themselves civil rights and obligations respectively. It followed that if there was a dispute either about whether the terms of the order had been honoured (i.e. whether or not there were arrears), or about whether it was appropriate to take particular steps to enforce the order, those disputes themselves required access to a court. That perspective, he argued was reinforced by the Strasbourg case-law, notably Hornsby v Greece (1997) 24 EHRR 250 (Hornsby). He relied on a passage in which the ECtHR stated in paragraph 40:-

It was, however, Mr. Drabble argued, unnecessary to rely on Hornsby in relation to the issues raised by the application for a declaration of incompatibility, although it was highly relevant to the issues raised by the allegation of undue delay in securing a remedy. The critical point on the declaration of incompatibility was that in an on-going child maintenance situation the order itself created rights and obligations that are rights and obligations within Article 6. Accordingly, the parties whose rights and obligations are engaged must have access to a court in connection with them.

Turning to the scheme under the 1991 Act, Mr. Drabble argued that sections 1 to 8 created a civil right in the hands of the PWC to apply for a maintenance assessment and a correlative obligation on the absent parent to discharge his liability by paying the sums due under the maintenance assessment. In a case where no State benefits are in payment, no interest of the state was involved. The parties could agree between themselves about methods of payment to meet the terms of the maintenance assessment. However, the PWC also had the right to apply to the Secretary of State for him to collect the sums due under the maintenance assessment and to enforce the obligation (see section 4(2)). Any other possible means of enforcement was then ruled out because of the terms of section 8(1) read together with section 8(3).

The nature of the right of the PWC to apply for a maintenance assessment was, he submitted, illuminated by the terms of section 6(1), although that sub-section was not directly applicable in the instant case. Section 6(1) placed an obligation on the PWC who is in receipt of income support to authorise the Secretary of State to take action to recover child support maintenance from the absent parent if required to do so. The terms of the section plainly envisaged that authority was required; in other words that the right to enforce the obligation to pay the child support maintenance due under the assessment was that of the PWC, not that of the Secretary of State. That fact was further apparent in a non-benefit case from the structure of section 4(2), which plainly made the use of the “collection services” offered by the Secretary of State voluntary.

The ability of the PWC to apply for a maintenance assessment replaced the ability of the same parent to apply to the court for an order under the various provisions listed in section 8(11). Mr. Drabble accepted that this part of the scheme was HRA 1998 compliant. The making of the maintenance assessment was subject to procedural safeguards; there was a right of appeal to a Child Support Tribunal (section 20); with a further appeal on a point of law to a Child Support Commissioner (section 24) and from there, also on a point of law, to the Court of Appeal (see section 25). These provisions, he accepted, complied with Article 6.

However, the position that arose in relation to the enforcement of the assessment was, Mr. Drabble argued, radically different. Because of the existence of section 8, the only way any right to maintenance can actually be enforced was through the Secretary of State; initially by the PWC authorising him under section 4(2) and by subsequent decisions of the Secretary of State under the various enforcement provisions in sections 29 to 41. Any dispute that arose as to whether the terms of a maintenance assessment had been complied with (that is to say whether or not there were arrears), or as to the need for a particular method of enforcement, would indeed ultimately be decided by a court, but on the application of the Secretary of State and in proceedings in which the PWC had no status and over which she had no control.

Mr. Drabble argued that his submissions on the right of access to a court were supported by the Strasbourg jurisprudence. He acknowledged that the terms of Article 6.1 did not themselves guarantee any right of access to the court. He relied, however, on the leading case of Golder v UK (1975) 1 EHRR 524, in which, at paragraph 36, the ECtHR had forcefully held that:-

Mr. Drabble also relied on the analysis of the Strasbourg jurisprudence summarised in Grosz, Beatson & Duffy (op cit) at paragraphs C6 - 27:

Mr. Drabble also relied on the following passage in para C6 - 31 of the same work which states:

Mr. Drabble submitted that, on this analysis, the instant case was one in which “the very essence of the right” was impaired, and accordingly no issue of whether the provisions of the Act pursue a legitimate aim or are proportionate could arise. It was simply not acceptable to have a third party with the ability to dictate the timing and nature of applications to the court. This,he argued, was made clear by Philis. In that case, the applicant engineer’s rights to bring an action for recovery of fees were subrogated to a trade association, the TEE; only that body could apply to court. The applicant argued (see para 58 p 764/5) that

The Greek Government sought to justify the position in terms of its efficacy. The Royal Decree sought only to protect the rights and interests of engineers by guaranteeing a “compulsory minimum scale of fees”. The subrogation scheme had been introduced at the express request of engineers who had wished for a more effective and vigorous protection of their rights: apart from their reluctance to sue clients, they would be paid their fees more rapidly as a result of the scheme. That argument has not succeeded.

Mr. Drabble submitted that it seemed clear that Mr Philis had greater rights to be involved in the proceedings than the claimant in the instant case would have. Various options appear to have been open to him, including the right to bring an action for damages against the TEE - see paragraph 63 of the judgment. Nonetheless, the Court (like the Commission) held that “since the applicant was not able to institute proceedings, directly and independently, to seek the payment from his clients - even to the TEE 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”.

By parity of reasoning, Mr. Drabble concluded, the complete inability of either the PWC or the child to whom sums are due under a maintenance assessment to institute proceedings before the court to enforce the right impaired the very essence of the “right to a court” and breaches Article 6.1.

For the Secretary of State, Mr. Robert Jay QC and Mr. David Forsdick, submitted that Article 6 was not engaged, and that under the 1991 Act, the PWC did not have the “civil right” contended for by the claimant. They submitted that the 1991 Act contained a comprehensive statutory code relating to the assessment and enforcement of child maintenance for people covered by it. They pointed to a number of judicial dicta to that effect, notably the decision of the Court of Appeal in Department of Social Security v. Butler [1995] 1 WLR 1528 at 1531H: -

Mr Jay and Mr. Forsdick also relied on the following passage from the judgment of Hale LJ in Huxley v Child Support Officer [2000] 1 FLR 898,

Counsel also pointed to similar observations by Munby J in R (Denson) v The CSA [2002] EWHC 154 and [2002] 1 FLR 938, and on his dictum that the 1991 Act and the scheme for assessment and collection of child support under it were HRA 1998 compliant. They properly recognised, however, that those observations were made in a different context, and were not addressed to the capacity of the PWC to enforce a maintenance assessment.

Article 6, they submitted, does not create new substantive rights in national law: They relied on statements to that effect in H v. Belgium (1987) 10 EHRR 339 at paragraph 40; and Z v UK (2001) 10 BHRC 384 at paragraph 100. Article 6 simply provided the procedural guarantees for the determination of tenable rights. They submitted that on a straight reading of the statutory code as a whole it was unarguable that the Claimant has a civil right to a maintenance award enforceable by her (their emphasis).

A key part of the Secretary of State’s argument was that the restrictions in section 8 of the 1991 Act are not procedural in nature, but substantive. They are a part of a comprehensive framework which has to be considered as a whole in determining the nature and extent of an individual’s rights.

Futhermore, the substantive ambit of the civil right was limited for good reason, as the statement of Sandra Coulthard, from which I have quoted extracts in paragraphs 16 and 17 of this judgment demonstrates. Difficulties in the way in which child maintenance was assessed and enforced constituted one of the principal reasons for the introduction of the 1991 Act.

In addition, the subject matter of the legislation was highly sensitive, affecting the interests of many people including children who were not within the definition of 'qualifying child' under section 3(1) the 1991 Act and whose interests the PWC had no arguable duty to consider. Thus, under section 2, the Secretary of State or the Child Support Officer was obliged to have regard to the welfare of any child likely to be affected by his decision. This included any children of the AP and his new partner, and stepchildren of the AP. It was these children whom the Secretary of State / Child Support Officer had a duty to consider, whereas the PWC had no such duty. Thus in a case where some qualifying children lived with the PWC and the others with the AP, the PWC might wish - if she could - to bring enforcement proceedings against the AP with no regard at all to the effect this might have on the children living with the AP.

Mr. Jay argued that by asserting that she could rely on the maintenance assessment derived under the 1991 Act and at the same time seek to enforce it outwith the framework of that legislation, the Claimant was attempting to corrupt the deliberate scheme of the legislation. The highest that it could be put on behalf of the Claimant in the light of the statutory scheme was that upon the making of a maintenance assessment her “right” was to have the sums payable under assessments collected and enforced through the mechanisms contained in the 1991 Act. However,

Mr. Jay submitted accordingly that under the 1991 Act, a person in respect of whom the Secretary of State had power to make a maintenance assessment lost any previous rights to obtain maintenance through the statutory provisions set out in section 8(11). Those rights were completely replaced by the self-contained statutory scheme of the 1991 Act. It was, accordingly, wrong for the Claimant to pray in aid what her rights would have been but for the Act. The substantive law of the UK had changed so as to substitute a wholly separate system for assessing, adjudicating upon, collecting and enforcing child maintenance for those who come within the terms of the 1991 Act: - see Department of Social Security v. Butler [1995] 1 WLR at p1531H, the passage set out at paragraph 62.

It followed, on Mr. Jay’s argument, that any substantive rights of the Claimant derived, and derived solely, from the 1991 Act. The issue in this case, accordingly, was the extent of those substantive rights. Counsel submitted that those substantive rights did not extend to a civil right to an assessment of child support which was enforceable through the courts as a civil debt by the Claimant, alternatively enforceable through the courts by her at all.

Reliance was placed in this context on Z v UK (2001) 10 BHCR 384 and 34 EHRR 97. In that case, siblings who had suffered abuse at the hands of their parents made a complaint under Article 6, because their claim against the local authority for its failure to take adequate measures to protect them had been struck out as disclosing no cause of action. This was because English law did not impose on the local authority an actionable duty of care. Whilst it was true that Z was concerned with putative common law rights rather than any incidents of a statutory scheme, counsel submitted that the principles in play were the same. In particular, reference was made to paragraph 100 of the Judgement of the Grand Chamber of the ECtHR:

In other words, counsel submitted, the position in Z was that the claimants had no substantive right of action under English law, and it followed that article 6(1) was not engaged. By parity of reasoning, the inability of this Claimant to enforce her entitlement to maintenance by dint of the applicable (statutory) principles governing her substantive rights of action under domestic law carried with it the consequence that article 6(1) was not in play.

Mr. Jay also relied on the decision of the Court of Appeal in Matthews v. Ministry of Defence [2002] 1 WLR 2621 [2002] EWCA Civ 773, in which, at the time the instant case was being argued, the judgment of the House of Lords was awaited. That judgment has since been delivered: - see [2003] 2 WLR 435. The case concerned the nature of a serviceman’s “rights” under section 10 of the Crown Proceedings Act 1947. The Court of Appeal, Mr. Jay argued, had considered the case law which showed that article 6 had no impact on rules of substantive law which delimit the rights and liabilities arising under civil law. It had recognised 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. Article 6 did not in itself guarantee any particular content for (civil) “rights and obligations” in the substantive law of the contracting states”: see James v. UK (1986) 8 EHRR 123. In other words, Convention organs could not create by way of interpretation of article 6(1) a substantive right which had no legal basis in the state concerned.

Mr. Jay submitted that in Matthews the Court of Appeal had recognised that the key question was whether section 10 of the 1947 Act should be regarded as procedural or substantive: if the former, article 6(1) was in play; if the latter, it was not (paragraph 52 of the Judgement at 2637H). That nub of the Court's conclusion on this issue was to be found at paragraphs 65-68 at 2640B-2641B. Critical to the Court's reasoning was the following passage at paragraph 66:

Thus, Mr Matthews' argument that section 10 was procedural in nature was rejected on the basis that he did not have a cause of action, and the reason why he did not have a cause of action was because entitlement to a remedy was an essential ingredient of one. By parity of reasoning, Mr. Jay submitted, the Claimant in the instant case does not have a cause of action, alternatively a 'civil right' under Article 6, because under the comprehensive statutory scheme she had no entitlement to a remedy.

In relation to Philis v Greece (1991) 13 EHRR 741, Mr. Jay accepted that the ECtHR had held that provisions of Greek law which prevented a consultant engineer from suing his employer in his own capacity violated his right of access to the court for the purposes of Article 6(1). However, the argument before the Court appeared to have proceeded on the basis that Mr Philis possessed a 'civil right' in these circumstances. Accordingly, the provisions of Greek law which arguably thwarted that right were treated by the Court as being procedural in character, not substantive. In any event, he argued, Philis was plainly distinguishable from the instant case on this issue because (a) the engineer's claim to be paid was a clear contractual right which the Greek courts had doubtless recognised since time immemorial, and which had nothing to do with the more recent provisions of Greek law which circumscribed the manner of their exercise, and/or (b) the Court was not considering the effect of a comprehensive, statutory scheme.

In summary, therefore, Mr. Jay submitted that if section 8(3) was part of the substantive scheme of the 1991 Act, rather than a mere procedural bar to taking enforcement action in the Courts, article 6(1) was simply not in play. That, clearly, was the case. Section 8(3) was a substantive part of the mechanism by which the wholly separate scheme for assessment, adjudication, collection and enforcement of child maintenance contained in the 1991 Act was substituted for the previous unsatisfactory arrangements. Section 8(3) did not set out procedural bars to enforcement action. It prevented the Courts acting on previously applicable legislation giving substantive rights. It was the means by which the substantive rights under the 1991 Act replaced those previously subsisting. It would be wrong to view section 8(3) as preventing the pursuing of civil rights of the Claimant - it defined what those rights were and what they were not. The application for a declaration of incompatibility was thus based on the false premise that but for section 8(3), the Claimant had a civil right to which article 6(1) applied.

The first and critical issue I must address is Mr. Jay’s submission that the Claimant’s inability to apply to the court for orders enforcing payments due to her under the maintenance assessments does not involve a “determination of (her) civil rights” within Article 6.1 of the Convention.

I have come to the conclusion that on this question, I prefer the submissions made by Mr. Drabble and Mr. De Mello. A key component of Mr. Jay’s argument was that Article 6 did not create new substantive rights in national law, but simply provided the procedural guarantees for the determination of tenable rights. Like Mr. Drabble, I accept the proposition. I do not, however, think that its application to the facts of this case has the consequence for which Mr. Jay argues.

In addressing the substantive as opposed to procedural question, I have found the analysis by Lord Bingham of Cornhill at the beginning of his speech in Matthews v Ministry of Defence [2003] 2 WLR 435, 437-8 very helpful. The decision of the House of Lords was given on 13 February 2003, after argument in the instant case was completed, but neither counsel applied to make further submissions in relation to it. In any event, I do not think that Lord Bingham is making any new law in the passage from his speech to which I am referring. I hope I will be forgiven if I summarise his analysis in the following way:

In Matthews itself, the division between the substantive and the procedural was clear. The claimant did not have a substantive right to sue the Crown in tort defeasible only by the procedural bar of the Secretary of State certifying under section 10(1)(b) of the Crown Proceedings Act 1947 that the act complained of was within the class of acts in respect of which the Crown was entitled to immunity from suit. Under English law the claimant had no right to sue the Crown in tort at all. He thus had no civil right with which Article 6 engaged. Similarly, in Z and others v UK the children had no substantive rights. English domestic law did not impose an actionable duty of care on local authorities to protect children from abuse by their parents. The children thus had no cause of action, and Article 6 was not engaged. By contrast, in Tinnelly, the applicants had substantive rights under national law to make complaints about unlawful discrimination. Those were civil rights, and the Secretary of State’s use of a certificate (the effect of which was to bar the Tribunal from determining the complaints in the applicants’ favour) was a breach of Article 6.

What substantive rights does the claimant in this case have? Mr. Jay’s answer is that she has the right to apply for a maintenance assessment against the AP and for the assessed amount of maintenance to be collected and if need be enforced in accordance with the scheme. On a straight reading of the statutory code as a whole, he says, she does not have a civil right to a maintenance award enforceable by her.

With great respect to Mr. Jay, I find myself unable to accept this analysis, which seems to me to blur the necessary distinction between the right and its remedy. In my judgment, the claimant undoubtedly has a civil right to seek maintenance for her children from their father. Furthermore, that 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.

On this analysis, it would be possible to perceive the entire Scheme under the Act for the assessment, collection and enforcement of maintenance as procedural as opposed to substantive. That analysis, moreover, is attractive, particularly given my duty under HRA 1998 section 3 to read the 1991 Act and the Child Support Scheme created by it in a way which is compatible with the Convention rights. However, in my judgment, it is not necessary to go that far.

Applying proposition (3) from my summary of Lord Bingham’s analysis as set out in paragraph 81, my assessment is that the provisions of the 1991 Act, far from precluding the bringing of an effective claim, 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.

In this context, the importance of the right to apply for enforcement identified in the quotation from Hornsby v Greece which I set out at paragraph 49 is highly relevant. “Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6”. Enforcement of a maintenance assessment is an integral part of the right to apply for and obtain that assessment. What is therefore engaged is an essential component or concomitant of that right, namely the right to recover the payment of what is due. No order or assessment is, of course, of any value unless it can be enforced; and the right to enforce is, in my judgment, plainly part of the Article 6 right to apply for and to obtain a maintenance assessment.

In this context, the fact that the right to apply for child support is no longer a right to apply to a court under the Matrimonial Causes Act 1973 or the Children Act 1989 does not, in my judgment, affect the substantive quality of the right, nor its autonomous convention status.

I do not, moreover, agree with Mr. Jay that Mr. Drabble's historical analysis is irrelevant. The right of spouses to apply to the court for financial provision both for themselves and their children has, historically, been of great importance in family law. A classic statement of the law is the speech of the Lord Chancellor, Lord Hailsham, in Hyman v Hyman [1929] AC 601, 614:

The three statutes referred to in section 8(11) of the 1991 Act, as Mr. Drabble argued, undoubtedly engaged the civil rights of the parent caring for a child by conferring a right on that parent to apply to the court for a maintenance order. Against this background, given (a) the interest which the State undoubtedly has in an enforceable system of child support; and (b) the universal agreement with the policy that APs should support their children, it would be astonishing, in my judgment, if the 1991 Act were to have altered the principal thrust of the civil right to apply for child support, however different the scheme which it created for the assessment, collection and enforcement of that support.

I am also unable to accept Mr. Jay’s submission that by relying on the assessment and seeking to enforce it outwith the framework of the legislation, the claimant is attempting to corrupt the deliberate scheme of the legislation. Firstly, it is difficult to see how the exercise of an Article 6 right can be said to “corrupt” legislation which is meant to be HRA 1998 compliant. Secondly, however, whilst I accept that the scheme under the 1991 Act is, as Mr. Jay describes it, a “comprehensive statutory code”, that code itself (as Hale LJ pointed out in the passage from Huxley v Child Support Officer cited at paragraph 63 of this judgment) contains elements of both public and private law and is, in my judgment, best described as hybrid.

Not all parents are treated in the same way under the scheme. Those who can afford it and reach agreement are enabled to opt out of it altogether, and are given access to the courts both for consent orders and for all subsequent questions of variation or enforcement. PWCs on benefit have none of these options, and are required to use the system. PWCs like the claimant, who have not been able to reach agreements with their former spouses or partners, have no choice but to use the system if they want maintenance for their children Thus, when it comes to enforcement, the PWC with a consent order has a choice of either enforcing through the courts or using the Scheme. The PWC on benefit has no interest in the outcome. The PWC in the claimant’s position has a direct and immediate interest in the outcome, but an inability to apply in her own right or on behalf of her children to enforce the assessment. In this context, it is not enough, in my judgment, for Mr. Jay to say that the claimant, had she wanted freedom of action, could have reached an agreement with her husband and obtained a consent order from the court. In the trite phrase, it takes two to make an agreement, and although there appears to have been an early informal verbal agreement to pay £150 per week, the voluntary payments rapidly ceased. There is no evidence that Mr. K would have agreed to a consent order for the children’s maintenance.

In relation to the argument based on Department of Social Security v Butler on which Mr. Jay and Mr. Forsdick rely, it needs to be recalled that this is a pre HRA 1998 decision, and addresses a narrow point, namely whether or not the Secretary of State, in seeking to enforce assessments under the Act was entitled to step outside his statutory powers of enforcement and apply to the court for a common law Mareva injunction. The Court of Appeal’s description of the Scheme under the 1991 Act must be read in this light.

I am also not impressed with the argument that the sensitivity of the subject matter of the legislation warrants the PWC being excluded from the enforcement process. The right under discussion is the right to apply to enforce. The decision whether or not to order enforcement in either case is not that of the Secretary of State or the PWC, but the court. I do not, therefore, think that the existence of children whom the Secretary of State is bound to take into account whereas the PWC is not represents a strong argument against the existence of an Article 6 right to apply to enforce. Nor, I have to say, am I persuaded by the argument that for PWCs in the claimant’s position to be able to apply to enforce would cause administrative difficulties. The Agency would, I imagine, simply mark the file “claimant to enforce”, and put it away.

The wisdom of a PWC seeking to enforce under her own steam, as it were, may be an issue, but in my judgment it does not go to the existence of the right. It is also to be noted that this was an argument which did not impress the EctHR in Philis where the Greek government argued that the Royal Decree “sought only to protect the rights and interests of engineers”.

I agree with Mr. Drabble that Philis helps him, although at the same time, in my judgment, in demonstrates the difficulties of trying to fit every case into the procedural / substantive mould. On one analysis, the removal of the engineers’ rights to sue for their fees would appear to be the removal of a substantive right. If that was so, the European jurisprudence would appear to indicate that Article 6 does not create substantive rights, and accordingly was not engaged.

However one designates the right in Philis, the fact remains that where, under the scheme, engineers were precluded from applying to a court, the EctHR took the view that this was a breach of Article 6. To that extent, of course, the case assists Mr. Drabble, but on my analysis of the instant case, where there is a substantive right to apply for child support and enforcement is procedural, Philis is not critical to the argument.

I therefore find myself in broad terms in agreement with the argument put forward by Mr. Drabble and Mr. de Mello on this point, although it does not follow, of course, that because Article 6 is engaged the Claimant is entitled to a declaration of incompatibility. I will, however, deal with this point below.

For all these reasons, my answer to the first question is that the claimant’s inability personally to enforce arrears of maintenance arising under the maintenance assessment engages her article 6 rights.

The argument on this question inevitably involved a degree of overlapping with the argument on the first question. I will, however, do my best to avoid unnecessary repetition.

Mr. Jay and Mr. Forsdick began their argument with the proposition that entitlement to child support was determined through the making of interim and final maintenance assessments, and appeals against such assessments to the Appeal Tribunal (see section 20). There was no doubt (indeed, it was common ground) that the procedures to establish the correct IMA and FMA were article 6 compliant and that the Appeal Tribunal was a tribunal of full jurisdiction for the purposes of determining entitlement to child support.

However, they submitted, the right of access to the Court was not absolute and States had a margin of appreciation as to how to give effect to the right: see Golder v. UK (1975) 1 EHRR 524. Any restrictions on access must not be such as to impair the essence of the right of access: - see Ashingdane v. UK (1985) 7 EHRR 528 at paragraph 57. The restrictions on the rights of access must have a legitimate aim, and the means used must be proportionate to the aim sought to be achieved.

In the instant case there was no criticism in Convention terms of the framework for the making of the maintenance assessment by the Secretary of State. The criticism was limited to the inability of the Claimant to enforce the assessment on her own. There was, however, a strong policy rationale for the Secretary of State taking enforcement action rather than the Claimant. This was not a situation where the issues were purely private between two individuals. They involved the rights and interests of children (including children and step-children of the AP, as well as children of the PWC and AP living with the latter). They involved issues as to how best to secure compliance and to maximise ongoing maintenance for the benefit of the taxpayer as well as the PWC. They also involved public policy considerations in terms of the resources which would be involved in enforcement action being taken by the Claimant (often with the assistance of public funding) through the Courts.

Mr. Jay pointed out that on two occasions since passing the 1991 Act Parliament legislated and did not take the opportunity to change the situation that it was the Secretary of State and not the PWC who enforced awards: - see the Child Support Acts 1995 and 2000. The decision to place enforcement in the hands of the Secretary of State is clearly proportionate to the aim sought to be achieved.

Furthermore, the argument continued, the Claimant's inability to enforce directly did not impair the essence of the right of access to the Courts. The fact that enforcement action resided with the Secretary of State did not logically mean that the essence of the right was being thwarted or vitiated: enforcement was still taking place in the interests of the Claimant (although other interests may also be in play), and her rights are being safeguarded and vindicated by the panoply of enforcement powers available to the Secretary of State. Additionally, if unconscionable delay by the Secretary of State (or the courts) were to be established, the Claimant's rights would be protected because the reviewing Court could well find a breach of Article 6 on that free-standing basis. In other words, the right of access in these circumstances was being regulated rather than taken away, and it was wrong in principle to assert that Article 6 was necessarily breached if the right was not 'personal' to the Claimant.

The restriction on access, Mr. Jay argued had to be seen in the context of: six identifiable factors: -

Although it might be argued that the PWC should have parallel or duplicate rights both within and without the Agency scheme, this would create significant problems in practice. Further, it was far from clear on the facts of this case whether the Claimant was compelled to proceed down the section 4 route. She could well have come to an agreement with the AP and concluded a consent order (section 8(5)) or a maintenance agreement (section 9) with him. Had she done so, she would on any view have enjoyed enforceable rights under the order or agreement. It was submitted that the onus of proof lay on the Claimant to show that such avenues were not in practice open to her.

What the statutory scheme did (in cases where section 8(3) applies) was to provide a far more comprehensive means of seeking to obtain payments from APs in extremely sensitive cases affecting third party (child) interests than the civil courts previously provided. That was the rationale for the introduction of the system in the first place. Parliament has given discretions rather than duties to the Secretary of State for good reason, and the exercise of the discretionary powers by the Secretary of State were capable of being subject to judicial scrutiny.

Both the European Court of Human Rights and the Commission had on a number of occasions considered the concept of 'impair[ment] of the essence of the right of access', and it was submitted that the concept was not free from difficulty. In Ashingdane the effect of section 141 of the Mental Health Act 1959 (not replicated in the MHA 1983) was that the Claimant could not sue for damages in the High Court in the absence of any allegation by him of bad faith or want of reasonable care. The ECtHR articulated the principle quite broadly at paragraph 57 of its Judgement, but its conclusions are at paragraph 59. In short, the Court held that the effect of section 141 was to limit the Claimant's right of access rather than to remove it altogether (this was because he could have sued had he alleged bad faith or want of reasonable care and obtained the prior leave of the High Court), and the principle of proportionality was not infringed because the restriction could be objectively justified. In the instant case, the position was the same: this Claimant could engage the courts in her own name in the circumstances described above; the fact that enforcement lay in the hands of the Secretary of State did not mean that the essence of her right had been violated.

Additionally, it was far from clear that 'impairment of the essence of the right' was a free-standing criterion. In Z and others v UK at paragraph 93 the matter was analysed thus:

Mr. Jay pointed out that the Claimant had placed considerable reliance on the case of Philis v Greece (1991) 13 EHHR 741, a decision of the ECtHR. The context there was rather different because the effect of Greek law was that Mr Philis had no ability to sue on his civil debt at all: the case was not about enforcement but about anterior entitlement. The Greek Government’s arguments in support of the proposition that this was a justifiable and proportionate limitation were not strong. In any event, contractual entitlements were an entirely different matter to child support maintenance: there was an obvious sense in which only one person was involved in the decision whether to press a contractual claim, whilst there were many factors to be balanced in deciding whether to enforce payment of maintenance. So, the case was distinguishable on its facts, but if and to the extent that it articulated any principle of general application to the effect that Article 6 vindicated the exercise of 'personal' rights, Mr. Jay respectfully submitted that the Court went too far and that the case should not be followed.

Finally, Mr. Jay submitted that the instant case was broadly analogous to the 'two tier' structure held by the courts to be acceptable in cases such as Alconbury (2001) 2 WLR 1389, Begum v TowerHamlets (2002) 2 All ER 668 and Beeson (unreported, 18/12/02). In those cases there was an administrative decision, first-tier review by a non-Article 6 complaint body, and second-tier (judicial review) by an Article 6 compliant body. The House of Lords in the first case and the Court of Appeal in the other cases held that viewed overall the requirements of Article 6 were satisfied because the nature of the subject-matter was such that a full, Article 6 compliant investigation of the facts was not required at all stages of the process. By analogy, it was submitted that (a) at both the entitlement and the enforcement stages, the courts involved were undeniably independent tribunals; (b) judicial review was available to the Claimant to compel the Agency to institute enforcement action (and unconscionable delays may in any event give rise to a free-standing Article 6 complaint); (c) it was not necessary for all the stages to meet the pre-requisites of Article 6 provided that the procedures viewed overall did so, and (d) in any event (pace Philis), in a case such as the present Article 6 is satisfied even if access to the Courts is administered by a statutory body on the Claimant's behalf.

Mr. Jay and Mr Forsdick then addressed the Claimant’s application for a declaration that alleged delays in enforcement by the Secretary of State infringed the Claimant’s Article 6 rights. They submitted that for the purposes of this free-standing submission, the Claimant had of course to establish that she possessed some species of 'civil right', and therefore must succeed on the first issue. Should she fail, this point could not arise. Accordingly, the Secretary of State's submissions under this head were predicated on the footing that the Claimant succeeded in establishing that her 'civil rights' are in play.

Mr. Jay and Mr. Forsdick accepted in principle in the overall context of Article 6 that unreasonable and unwarranted delays might be such as to amount to a breach of that Article where the court considered that the postulated right was effectively being thwarted in its exercise. An example of a case of unconscionable delay was Hornsby v Greece [1997] 24 EHRR 250 where it was held that article 6 would be illusory if a contracting state’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party: Counsel cited paragraphs 40 and 41 of the Court’s judgment, part of which I have already cited at paragraph 49 of this judgment but which, for ease of reference, I repeat:

Commenting on the decision, counsel submitted that the context for it was stark. UK nationals had applied to run an English language school in Greece in 1984. Their application for authorisation was refused on the grounds that they were not Greek nationals. Eventually a complaint was made to the ECJ which held that Greece was in breach of its obligations under the EEC treaties. The application for authorisation was renewed but again refused. An appeal was lodged to the supreme Administrative Court. The refusal of authorisation was set aside. The applicants again applied but received no response. Eventually, 5 years later, a presidential decree made it possible for non-Greeks to run schools subject to conditions. The applicants alleged a violation of article 6(1) on account of the authorities’ refusal to comply with the judgements of the Supreme Court.

Not surprisingly, Mr. Jay submitted, the ECtHR held (para 45) that by refraining for more than five years from taking the necessary measures to comply with a final, enforceable judicial decision in the present case the Greek authorities deprived the provisions of Article 6(1) of all useful effect. It was clear that the ECtHR had in mind delays of such a period that the exercise or enjoyment of the right became illusory. In the instant case, he pointed out, any such argument on delay must rest and only rest on the period post 2 October 2000, the date on which HRA 1988 was implemented.

Mr. Jay submitted that the chronology did not demonstrate any unwarranted delay on the part of the Secretary of State such as to constitute an unreasonable exercise of his discretions under the 1991 Act and/or an effective denial of the Claimant's rights. Instead, the chronology demonstrated a history of vacillation and evasion by the AP in the face of the activities of the Agency and the courts: in the face of such behaviour, the Agency had been successful in compelling the AP to pay at least £12,000 in child support. Delays attributable to the conduct of the AP could not, he submitted, be prayed in aid by the Claimant in support of her Article 6 case because (a) they did not stem from any inertia or inaction on the part of the Secretary of State, the courts or other public body, and (b) the AP would have behaved in exactly the same evasive way (and perhaps even more so) had enforcement action been taken by the Claimant herself.

For the claimant, Mr. Drabble acknowledged that, whilst the claimant could not herself apply to any court to enforce the assessment, she could apply for judicial review of the Secretary of State’s conduct of enforcement proceedings. Moreover, he accepted that the right to apply for judicial review existed independently of any potential or actual breach of the claimant’s right under the Convention. However, the dispute that would be before the Administrative Court in such a case would be whether the Secretary of State had acted reasonably, not the original dispute as to whether, for example, the assessment had been honoured or how any arrears were to be paid.

Thus, Mr. Drabble submitted, there was no parallel with what he described as the “hybrid” cases (for example in planning cases - see Alconbury itself) or cases involving the provision of social services - see Secretary of State for Health v The Personal Representative of Christopher Beeson 2002 EWCA Civ 1812). In those cases, he submitted, there was adequate access to a court in a connection with a dispute where the dispute is decided first by an administrator subject to the control of an Article 6 court. Here, the Claimant has no access to a court at all in connection with disputes as to whether the terms of the assessment have been complied with.

In Secretary of State for Health v the Personal Representatives of Christopher Beeson (Beeson), Laws LJ gave a helpful summary of the impact of Article 6 on administrative decisions, when, giving the judgment of the Court of Appeal, he said at paragraph 15: -

Alconbury itself comprised three consolidated appeals. In the first, Alconbury Developments Limited challenged the determination of planning applications by the Secretary of State as contrary to Article 6. The second appeal (Holding & Barnes plc) was a similar challenge. In the third appeal, the Secretary of State sought a ruling that the procedure whereby he approved a major road junction improvement scheme and the consequential compulsory purchase orders was compatible with Article 6.

The House of Lords held that whilst the Secretary of State was not himself an independent and impartial tribunal, the decisions taken by him were not incompatible with Article 6(1) provided they were subject to review by an independent and impartial tribunal which had full jurisdiction to deal with the case as the nature of the decision required. Where the decision in question involved administrative policy, it was not necessary for the reviewing body to have full power to re-determine its merits; any such review in a case where the Minister was answerable to Parliament and ultimately to the electorate would be profoundly undemocratic. Accordingly, in such cases, the power of the High Court in judicial review proceedings to review the legality of the decision and the procedures followed was sufficient to ensure compatibility with Article 6(1). It followed that the decisions of the Secretary of State in the three appeals in Alconbury were not inconsistent with Article 6.

Giving the first speech, Lord Slynn of Hadley pointed out that where there was an administrative decision which was subject to a review by a court, there was a constant line of authority of the EctHR that regard had to be had to both stages of the process. In this context he cited paragraph 29 of the judgment of the EctHR in Albert and Le Compte v. Belgium (1983) 5 EHRR 533, at paragraph 29. a case in which two doctors asserted that the national medical association had breached Article 6 by not hearing their cases publicly or pronouncing its judgment publicly. The case accordingly involved the “jurisdictional organs of professional associations”. The EctHR said:

The well known speech of Lord Hoffman in Alconbury was summarised by Laws LJ in Beeson (at paragraph 16 of the Court’s judgment) This was a case concerning the relationship between Article 6 and a determination by a local authority that an individual had deprived himself of an asset which he could have used to fund his care in a residential home run by the local authority. It is, I think, sufficient for my purposes, if I cite only the final two paragraphs of Laws LJ’s summary: -

The latest decision in this line of cases is the decision of the House of Lords in Runa Begum v. TowerHamlets London Borough Council (First Secretary of State intervening) [2003] 2 WLR 388. Runa Begum (RB) was homeless. The local authority accepted it had a duty under the Housing Act 1996 to provide accommodation for her. She was offered accommodation, but rejected it as unsuitable. An internal review by a local authority housing officer concluded that the accommodation was suitable and that it would have been reasonable for her to accept it. RB appealed to the county court under section 204 of the Housing Act which provided for an appeal “on any point of law arising from the decision” of the housing officer. The judge hearing the appeal held that the procedure adopted by the local authority, and in particular its failure to consider referring the matter to review by an independent body contravened RB’s Article 6 rights. He allowed the appeal on that basis. His decision was reversed by the Court of Appeal, whose decision was in turn affirmed by the House of Lords.

On the assumption that RB’s Article 6 rights were engaged, it was common ground that the local authority housing officer was not “an independent tribunal”. However, having regard to the scope of Article 6(1) as extended to administrative decisions which were determinative of civil rights, her decision could not be impugned under Article 6(1) so long as measures were in place to safeguard the fairness of the proceedings and the decision was subject to ultimate judicial control by a court with jurisdiction to deal with t he case as its nature required.

Giving the first speech, Lord Bingham of Cornhill warned against the danger of administrative schemes being emasculated by over-judicialisation: -

At {2003] 2 WLR 388, Lord Hoffman summarised the current state of the law in the following paragraphs: -

I have cited at length from these three cases because it does not seem to me that the instant case fits immediately into the pattern they establish. However, the question they raise is the same in each case, namely where the outcome of a process which engages or may engage the civil rights of an individual is resolved by the administrative decision of a public body which is not capable of direct challenge on its merits by access to an independent and impartial tribunal, do the powers of the Administrative Court in judicial review provide the court with full jurisdiction to deal with the case as the nature of the decision requires? Or to put the matter more shortly, is the right to apply for judicial review of the administrative decision a sufficient remedy to cure the breach of Article 6? And if the answers to these two questions is “no” does the claimant have any other remedy which meets her Article 6 rights?

As Laws LJ said in the Court of Appeal in Begum there is no brightline rule for answering these questions. I must therefore look carefully at the position of the claimant in the instant case, the nature of her rights, and the nature and consequences of the administrative decision being made.

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.

The matter can be tested, I think, by looking at what actually happened in the instant case pre HRA 1998 when the claimant applied to the Agency for a maintenance assessment. The Agency delayed for more than a year before processing the application. As a result, the claimant did not receive the child support for her children which she should have received, which she had a reasonable expectation of receiving, and which she probably would have received had the Agency acted properly. In my judgment an application for judicial review seeking a mandatory order, even if made swiftly, would not necessarily have been an adequate remedy.

Similarly, 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 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.

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 under the 1991 Act is HRA compliant.

I do not think that in reaching this conclusion I am stepping outside the parameters laid down by Alconbury and Begum, or adding too overweight an angel to the head of Laws LJ’s Article 6 pin. I reach the conclusion all the more easily because, in my judgment, it encompasses and incorporates the Secretary of State’s social policy arguments relating to the 1991 Act and the Scheme.

Furthermore, it seems to me to meet the justice of the case. If the Agency acts reasonably and exercises properly the powers and discretions given to it by the 1991 Act, it will have nothing to fear, even if, for example, it has been unsuccessful in recovering arrears of child support. However, the fact that the claimant’s Article 6 rights are engaged by the enforcement process, and the fact that she cannot herself apply to the court mean that any unreasonable failure by the Agency to enforce on her behalf carries with it liability to an action by the claimant both by way of judicial review and an action for damages under HRA section 7.

This part of the judgment must, however, come with a substantial health warning. As Ms Coulthard pointed out, and as family practitioners know, the enforcement of financial orders in family proceedings is notoriously difficult. It will not be every breach of the Agency’s duties which will render it liable to the PWC. She or he will have to show unreasonable behaviour by the Agency in the enforcement process, not simply that the Agency has failed to achieve enforcement.

There are reported decisions relating to the operation of the 1991 Act in both in England and in Strasbourg. A detailed review of the latter was helpfully undertaken by Munby J in R (Denson) v The Child Support Agency [2002] 1 FLR 938.

The two leading English decisions are those of the Court of Appeal in Department of Social Security v. Butler [1995] 1 WLR 1528 and Huxley v Child Support Officer [2000] 1 FLR 898. I have already referred to both of these, and in particular to Hale LJ’s valuable summary of the 1991 Act and the scheme which operates under it.

Department of Social Security v. Butler is a pre-HRA 1998 case about the Secretary of State’s powers to enforce a maintenance assessment. At paragraph 63 of this judgment I have already set out a substantial extract from the judgment of Evans LJ in that case, which decided that because his powers were given to him by the 1991 Act, the Secretary of State could not step outside them to obtain a Mareva injunction to secure outstanding arrears from the AP’s share of the proceeds of sale of the former matrimonial home of the parties. At [1995] 1 FLR 1528 at 1540, Morritt LJ, as he then was said: -

I have already discussed the context in which Morritt LJ made these remarks. I fully accept that where Parliament has laid down a statutory scheme, that scheme prevails. I do not, however, think that the decision in Butler impinges on the point which I have to decide.

R (Denson) v The Child Support Agency was a case on article 1 of Protocol 1 and article 8. An AP appealed maintenance assessments to the Child Support Appeal Tribunal (CSAT) which determined the amounts and dismissed his appeals. After further arrears had accrued, the AP sought judicially to review the CSAT’s refusal to review the determination and the Agency’s decision to apply for a liability order. The judicial review was adjourned pending a further appeal to the CSAT, which in fact increased the weekly amounts payable by the AP. The AP sought to argue that the actions of the Agency breached his Article 8 rights and were unreasonable. Munby J dismissed the application, which was plainly doomed to failure, not least because the subject matter of the judicial review was one of the issues in contention at the second hearing before the CSAT, which had jurisdiction to deal with it, and where it had been fully argued. During the course of his judgment, Munby J observed:

The Strasbourg cases reviewed by Munby J in Denson included Logan v United Kingdom (1996) 22 EHRR CD 178; Burrows v United Kingdom (unreported) 27 November 1996 and Stacey v United Kingdom (unreported) 19 January 1999. Logan was an attempt to argue that the high level of the maintenance assessment breached the AP’s Article 8 rights as it prevented him visiting his children regularly and thus interfered with his right to respect for family life. A similar point was taken on different facts in Burrows. In both cases the Commission found the complaints inadmissible. In Stacey the EctHR rejected as manifestly unfounded the complaint by an AP that the duty to supply information to the Agency infringed his Article 8 rights. Commenting on these case, Munby J said: ([2002] 1 FLR 938 at 947:

I see nothing in any of these decisions which is inconsistent with the conclusions I have reached in the instant case. I agree with Munby J’s observations in Denson and in particular with his view that the 1991 Act and the scheme are HRA 1998 compliant, although I reach that latter conclusion from a different direction, dictated by the facts of the instant case.

It follows from my conclusions at paragraph 134 that the claimant is not entitled to the declaration of incompatibility which she seeks. That claim must, accordingly, be refused.

The claimant also seeks a declaration that delay on the Agency’s part constitutes a breach of her Article 6 rights, and to give directions designed to enable the amount of damages to be assessed.

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. The point, however, was not argued and I say no more about it at this stage.

As I have identified at paragraph 12, the Secretary of State’s case is that there has been no actionable delay since 2 October 2000, when HRA 1998 came into force. There are two detailed documents in the papers, both of which set out the steps taken by the Agency from 25 May 1995. The former stops at 25 May 2002: the latter, headed “Statement of Events for Mary K” continues to 3 January 2003. Attached to the claimant’s second statement is a counter-schedule commenting on the first of the two documents.

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.

Accordingly, if the claimant wishes to pursue an action against the Secretary of State under section 7 HRA 1996, directions need to be given for the trial of that action. Plainly, most of the material is already contained within the papers I have. However, I invite counsel to consider, and if possible, to agree the form which the proceedings should take, including the manner in which the case should be pleaded or presented on paper, the extent to which any further discovery is needed; whether or not the court needs to hear oral evidence, and if so from whom; and what time estimate should be given. If these matters cannot be agreed, I will, of course, hear argument on them.

In the result, the claimant’s application for the declaration set out in paragraph 5 of this judgment will be refused. I invite counsel to agree directions and the time-tabling for any claim the claimant proposes to pursue against the Secretary of State based on HRA 1998 section 7.