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

A parent with care has a civil right, for Article 6 purposes, to seek child maintenance and to recover sums due under a maintenance assessment. The statutory allocation of enforcement to the Secretary of State is a procedural restriction engaging Article 6, rather than removal of the underlying right.

Judicial review alone may not provide the full jurisdiction required by the nature of the decision. The combination of judicial review and a damages action under section 7 of the Human Rights Act 1998 can satisfy Article 6 and preserve the compatibility of the statutory scheme. Liability does not arise merely because enforcement fails; unreasonable conduct or delay causing loss must be established.

The claimant, a parent with care, had obtained child maintenance assessments under the Child Support Act 1991. The Act placed enforcement principally in the hands of the Secretary of State and prevented her from enforcing the assessments personally or on behalf of the children.

She sought a declaration of incompatibility under section 4(2) of the Human Rights Act 1998, alleging that the scheme denied access to a court under Article 6. She also alleged post-2 October 2000 delay by the Child Support Agency and sought damages-related directions. The issues were whether Article 6 was engaged, whether the scheme was nevertheless compliant through judicial review and other remedies, and whether the alleged delay was actionable.

1. Article 6 engaged. The claimant had an autonomous civil right to seek maintenance for her children, recognised in domestic law and given effect through the statutory scheme. The Act’s exclusion of her from the enforcement process imposed a procedural bar on enforcing that right. Recovery of sums due was an integral part of the right to obtain a maintenance assessment. The claimant’s inability personally to enforce arrears therefore engaged Article 6.
2. Overall compatibility. The scheme had legitimate social-policy aims, including securing parental responsibility and balancing the interests of children, parents and the public. The assessment process and appeals were Article 6 compliant. However, judicial review alone might not provide full jurisdiction to deal with unreasonable failure or delay in enforcement, particularly where loss of maintenance resulted.
3. Applying the principles in R (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 and Runa Begum v Tower Hamlets London Borough Council [2003] 2 WLR 388, the combination of judicial review and a claim for damages under section 7 of the Human Rights Act 1998 supplied the necessary safeguards. The statutory scheme was therefore compatible with Article 6.
4. The claimant was not entitled to the declaration of incompatibility. An action under section 7 remained available in principle. Whether there had been actionable delay or other unreasonable conduct after 2 October 2000 was a factual issue requiring determination. Failure to recover maintenance, without more, did not establish liability; unreasonable conduct in the enforcement process causing damage was required.
5. The application for the declaration was refused. Directions were invited for any proposed section 7 claim.