Secretary of State for Work and Pensions v Kehoe

Article 6(1) does not create substantive civil rights. It applies only where the claimant has an arguable right recognised by domestic law, although the classification of that right as civil has an autonomous Convention meaning.

The Child Support Act 1991 created a self-contained system of assessment, collection and enforcement. A parent with care may request assessment and enforcement but has no right against the non-resident parent to a particular payment or to participate in enforcement. Article 6(1) is therefore not engaged.

Alternatively, restricting direct access to enforcement proceedings pursues legitimate social-policy objectives and is proportionate. Judicial review alone would not, however, provide sufficient judicial control if an enforceable civil right existed.

A parent with care obtained child-support assessments, but substantial arrears accumulated. The Child Support Agency commenced, withdrew and later renewed enforcement proceedings, in which the parent could not participate personally.

Wall J, reported at [2003] 3 FCR 481 and [2003] 2 FLR 578, held that her civil rights under article 6(1) were engaged. He nevertheless dismissed her application for a declaration that the Child Support Act 1991 was incompatible with article 6, reasoning that judicial review together with a damages claim under the Human Rights Act 1998 supplied adequate protection.

The Secretary of State appealed against the finding that article 6 was engaged. The parent cross-appealed against the conclusion that the statutory scheme was Convention-compliant.

1. Appeal allowed; cross-appeal dismissed. By a majority, Latham and Keene LJJ held that article 6(1) was not engaged. Ward LJ dissented on that issue but agreed that the statutory scheme was compatible with article 6.

2. Article 6 does not determine the content or existence of substantive rights. Whether an asserted right exists, at least arguably, is governed by domestic law. The autonomous Convention concept determines whether an existing right is civil; it does not create a right absent from national law.

3. The Child Support Act 1991 established a self-contained and nationalised system for assessing, collecting and enforcing child maintenance. It replaced the former statutory rights of parents to obtain and enforce periodical-payment orders, subject to limited exceptions. A parent with care may require an assessment and may ask the Secretary of State to arrange collection and enforcement. The decision whether, and to what degree, enforcement should be pursued remains for the Secretary of State, subject to judicial review.

4. The parent with care has no statutory or common-law right against the non-resident parent to payment of a particular sum, or to participate in enforcement. Parliament deliberately vested enforcement in the Secretary of State. The absence of a personal enforcement remedy therefore defined the substantive statutory rights; it was not a procedural bar to enforcing an independently existing right.

5. Ward LJ would have held that the parent’s right to assessment, receipt of recovered maintenance and enforcement had to be viewed broadly and autonomously. In his view, removal of her direct enforcement rights was a procedural restriction engaging article 6. Latham and Keene LJJ rejected that analysis.

6. Ward and Latham LJJ agreed that, if a relevant civil right had existed, judicial review would not have supplied the full judicial control required. A parent excluded from liability-order proceedings could not adequately challenge disputed arrears, evidence or abandonment of enforcement. A damages claim under section 7 of the Human Rights Act 1998 could not make an otherwise incompatible scheme compatible.

7. Ward and Latham LJJ also concluded that any restriction was proportionate. The unified scheme pursued legitimate aims, relieved carers of the cost and burden of enforcement, reduced adversarial conflict and provided enhanced enforcement powers. There was a reasonable relationship between those objectives and the statutory means adopted.

1. Court of Appeal (Civil Division): By a majority, allowed the Secretary of State’s appeal and held that article 6(1) was not engaged. Dismissed the parent’s cross-appeal. Permission to appeal to the House of Lords was refused: [2004] EWCA Civ 225.
2. Administrative Court: Wall J held that article 6(1) was engaged but dismissed the application for a declaration that the Child Support Act 1991 was incompatible with article 6. He stayed further directions on the damages claim and granted permission to appeal: [2003] 3 FCR 481; [2003] 2 FLR 578.