Kehoe (FC) v Secretary of State for Work and Pensions

The House considered whether the Child Support Act 1991, which vests assessment, collection and enforcement of child maintenance in the Secretary of State and the Child Support Agency, nevertheless leaves a "civil right" in the person with care or the child such as to engage article 6(1) of the European Convention on Human Rights. The key statutory provisions in issue included sections 1, 4 and 8 of the 1991 Act and the mechanisms for liability orders and deductions from earnings.

The majority held that the 1991 Act deliberately vested the right to enforce maintenance assessments in the Secretary of State and did not confer on the person with care a right to enforce those assessments in the courts; consequently no "civil right" under article 6(1) was engaged and the Human Rights Act 1998 could not provide the remedies sought. The availability of judicial review of the agency's public law functions remained available to challenge errors of law or unreasonable delay. A dissenting opinion (Baroness Hale) concluded that children retain a civil right to be maintained by their parents which survives the 1991 Act and that article 6 was engaged in respect of enforcement, so that incompatibility and damages remedies could proceed.

The appellant, Mrs Kehoe, applied after prolonged delay and difficulties in enforcement by the Child Support Agency to challenge the Child Support Act 1991 regime as incompatible with article 6(1) ECHR. She sought a declaration of incompatibility under section 4(2) of the Human Rights Act 1998 and damages under sections 7 and 8 of that Act in respect of enforcement failures and delay by the Agency.

Facts and procedural history:

• Mrs Kehoe and Mr Kehoe divorced after separation; she applied to the Child Support Agency for maintenance assessments under section 4 of the 1991 Act; assessments were made and significant arrears accrued; enforcement by the Agency was protracted and in some respects unsuccessful.
• At first instance Wall J in the Administrative Court ([2003] EWHC 1021 (Admin); [2003] 2 FLR 578) granted relief in favour of Mrs Kehoe. The Court of Appeal ([2004] EWCA Civ 225; [2004] QB 1378) reversed. The case came to the House of Lords on appeal.

Issues framed by the House:

1. Whether the statutory scheme of the 1991 Act gives the person with care (or the child) a "civil right" to the collection and enforcement of a maintenance assessment such that article 6(1) is engaged;
2. If a civil right exists, whether the statutory allocation of enforcement to the Secretary of State is nevertheless compatible with article 6(1) because the Agency's duties are subject to judicial review (Alconbury criteria) or because the restriction is proportionate;
3. Whether delay and specific conduct by the Agency gave rise to breaches of Convention rights and remedies under the Human Rights Act 1998.

Court's reasoning and disposition:

The majority (Lords Bingham, Hope, Walker and Lord Brown) analysed the 1991 Act and concluded it was a deliberate, coherent reallocation of enforcement powers: enforcement was exercisable only by the Secretary of State via the Child Support Agency with limited statutory methods (for example deductions from earnings and liability orders under section 33), and the courts' powers to make periodical orders were ousted by section 8 where the Agency had jurisdiction. On that basis the majority held the person with care had no substantive right of enforcement against the absent parent in domestic law that could be characterised as a Convention "civil right"; Strasbourg authorities do not require the state to create substantive causes of action. Article 6(1) was therefore not engaged in respect of the enforcement machinery, although judicial review remained available to challenge unlawful exercise of the Agency's powers.

Dissenting (Baroness Hale) — she concluded that children's underlying civil right to maintenance exists outside the 1991 Act, that the Act is largely procedural in the enforcement dimension and therefore article 6 is engaged; accordingly she would have allowed the appeal and proceeded with Human Rights Act remedies.

Appeal dismissed. The majority held that the Child Support Act 1991 vested enforcement of maintenance assessments in the Secretary of State/Child Support Agency and did not confer on the person with care a substantive right to enforce the assessment in the courts; consequently article 6(1) was not engaged in respect of the Agency's enforcement scheme, although judicial review of the Agency's public law decisions remained available. A dissenting opinion held that children's civil rights to maintenance survive the Act and that article 6 was engaged.

Administrative Court (Wall J) [2003] EWHC 1021 (Admin); [2003] 2 FLR 578 (first instance decision in favour of Mrs Kehoe). Court of Appeal, Ward, Latham and Keene LJJ, [2004] EWCA Civ 225; [2004] QB 1378 (reversed Wall J). House of Lords [2005] UKHL 48 (appeal dismissed by majority).