District Judge Sue Spencer looks at two recent cases in which the workings of the Child Support Act 1991 and the Child Support Agency have been picked over by the courts


In Re B (Contact: Child Support) [2006] EWCA Civ 1574, [2006] All ER (D) 327 (Nov), [2007] 1 FLR 1949, the court was asked to consider the impact of the court's determination on the amount of contact a child should have with a non-resident parent (NRP) upon that parent's obligations pursuant to the Child Support Agency (CSA) formulae.



This was, sadly, a very long-running and acrimonious contact dispute - it began in 1998 over a child born in 1995. In 2004, the county court had ordered contact in a way which added up to a total of contact of 105 nights per year. In a revision of that order in 2006, the order reduced the total to 93 nights per year.



This NRP was being assessed under the old formula and had not been migrated to the new scheme. The new scheme would have recognised contact over 52 nights per year as meriting a reduction, and contact over 104 nights as meriting a further reduction in each case of 1/7 of relevant income. Under the old scheme, the contact had to be over 104 nights each year before there was any reduction. There was no prospect of this NRP being moved to the new scheme in the foreseeable future. The cost to the NRP was about £1,445 per year.



As to the contact, the CAFCASS officer made no specific recommendations but noted that the child no longer wanted to stay with her father every other weekend, but instead to visit on Sundays. She also noted that this clearly matched the mother's wishes.



The father said that the mother was motivated by money. He asserted that the recorder, at first instance, should have taken into account the financial impact of the order in his decision on contact.



In setting the amount of contact, should the Court have regard to the impact this would have on CSA maintenance payable? The Court of Appeal (paragraph 18 of the judgement) accepted that there are 'anomalies in the current child support legislation which can properly be said to give rise to substantial injustice'. However, the court was clear that these are 'irrelevant to determination of the optimum level of a parent's contact with a child'.



As Lord Justice Wilson vividly put it (paragraph 19): 'It would be wrong in principle because it would put the cart before the horse. First breed your horse, namely the optimum arrangements for the child in terms of contact or shared residence, devised without reference to child support. Then, at the rear of the horse, let Parliament fit the appropriate cart, namely the amount of the liability for child support.'



The decision was inevitable once the welfare principle was considered.



Duty of care to children?

The decision in R (Rowley) v Secretary of State for Work and Pensions (Resolution intervening) [2007] EWCA Civ 598, [2007] All ER(D) 186 (Jan), was by no means inevitable. This was an opportunity for the courts to do something to mark disapproval at the operational failures of the CSA, without treading on the more dangerous ground of in-principle opposition. Guided by the welfare principle, the Court of Appeal in Rowley could have come to exactly the opposite conclusion to the one it reached.



Of necessity, what follows is a brief summary of the detailed judgement of the Court of Appeal.



Mrs Rowley's complaints were horribly familiar. She said that she and her three children had suffered from the CSA's way of calculating maintenance, the time taken to do the calculation and finally from their miserable failure to collect it effectively or indeed at all. She then went on to assert that as a result, the Secretary of State for Work and Pensions had been negligent and should compensate her for her suffering and that of her children.



Did the secretary of state owe Mrs Rowley and/or her children a duty of care? Sadly, the Court of Appeal's answer was a clear 'No'. The reason, in essence, was that the scheme, overall, contained sufficient ways in which to compensate the 'parent with care' for the admitted and accepted failures of the CSA (see Lord Justice Dyson at paragraph 74).



On the facts, this was clearly not the case for Mrs Rowley, who had to sell her home at an undervalue, having had to move out because she could not afford to stay there without maintenance. Lord Justice Dyson adverted to this (paragraph 75): 'The present case provides a different kind of example... But the fact that there may be cases where incompetence on the part of the CSA causes loss which cannot be recovered under the statutory scheme is not a sufficient reason to impose a duty of care.'



It is worth noting that the learned members of the Court of Appeal, Lord Justices Waller, Keene and Dyson, are not family specialists. It might well be helpful if cases with such a clear family flavour had at least one family judge involved in hearing them. Contrast the dissenting speech of Baroness Hale, apparently not considered in Rowley, in R(Kehoe) v Secretary of State for Department of Work and Pensions [2005] UKHL 48, [2005] 4 All ER 905.



The point in Kehoe was whether, as Lord Bingham of Cornhill put it, 'properly understood, the Child Support Act 1991 gives [Mrs K] a right to recover financial support for the children from Mr Kehoe and that the provisions of the Act purporting to deny her a power of direct enforcement against him are inconsistent with the right of access to a court guaranteed by article 6 of the European Convention on Human Rights'.



Baroness Hale, in a dissenting speech which exhaustively and convincingly traces the private right of a parent to seek support for their child throughout legal history, concluded at paragraph 70 that the CSA scheme did not wholly contain the obligation of a parent to maintain, and 'the right of a child to have the benefit of that obligation'.



She went on to conclude that article 6 was therefore engaged. The point in relation to Rowley is that Baroness Hale concluded that there was a free-standing right of a child to maintenance, apart from the CSA - a point not considered in Rowley. Arguably, if the CSA seeks to subsume that right, it accepts an obligation which ought to carry with it a duty of care to the child.



District Judge Sue Spencer sits at Leeds Combined Court Centre