Warring-Davies v Secretary of State for Work & Pensions

Where a consent order provides that spousal maintenance is reduced pound for pound by any Child Support Agency assessment, the phrase may include arrears accruing before the order, particularly where the arrears were known to exist but their amount was not yet calculated. The court must construe the order in its factual and procedural context. Payments made under the order are first appropriated to child support liabilities, with only the balance treated as spousal maintenance. A liability order cannot stand where the proper construction of the consent order shows that the relevant child support payments were made.

The appellant challenged a liability order made by a magistrates’ court under section 33 of the Child Support Act 1991. The order concerned alleged arrears of child support maintenance. The appellant relied on a consent order made in matrimonial proceedings, under which periodical payments to his former wife were reduced pound for pound by any Child Support Agency assessment.

The District Judge stated two questions for the High Court: whether the consent order was capable of applying to arrears arising during the initial assessment period, and whether there was evidence that the appellant had failed to make payments of maintenance. The central issue was the proper interpretation and application of paragraph 5 of the consent order.

1. Appeal allowed. The liability order made on 13 May 2005 was quashed. The questions in the case stated were answered respectively “yes” and “no”.
2. Paragraph 5 of the consent order provided that Child Support Agency assessments had priority over the periodical payments payable to the former wife. Payments made directly to her were treated, under section 29 of the Child Support Act 1991 and regulation 2 of the Child Support (Collection and Enforcement) Regulations 1992, as payments to the Child Support Agency. The first slice of each payment was therefore referable to child support, with only the balance constituting spousal maintenance.
3. The phrase “any Child Support Agency assessment” was broad enough to include arrears accruing during the initial payment period. The consent order was made when arrears were known to exist, although their amount was not readily calculable. On that factual matrix, paragraph 5 only made sense if it covered the existing but undefined liability.
4. The higher payments of £900 per month for the first six months also supported that construction. Their evident purpose was to pay off the arrears. The order did not impose a separate responsibility on the appellant to apportion payments between the Agency and his former wife.
5. Once the relevant payments were appropriated to the arrears, the Agency’s claim for £902.45 failed. Following the respondent’s concession, no liability order was pursued for the remaining £300. An order for costs was made in principle in favour of the appellant, with the precise amount to be agreed under the applicable regulations.

• Bradford Magistrates’ Court: District Judge Thomas made a liability order on 13 May 2005 for £5,065.34 under section 33 of the Child Support Act 1991.
• High Court (Administrative Court): The appeal by way of case stated was allowed. The liability order was quashed.