Reginav. Secretary of State for Work and Pensions (Respondent) ex parte Kehoe (FC) (Appellant)

A statutory child-support scheme may replace a carer’s private right to recover maintenance with enforcement by a public authority. Under the Child Support Act 1991, a person with care cannot bring proceedings directly against the non-resident parent to enforce a maintenance assessment. Enforcement is vested exclusively in the Secretary of State.

Article 6 of the Convention protects the fair determination of civil rights recognised on at least arguable grounds by domestic law. It does not create a substantive right which domestic law has deliberately withheld. Accordingly, the exclusion of a carer’s direct enforcement action does not engage article 6, although decisions of the enforcement authority remain subject to judicial review.

The appellant was the carer of four children. Following the breakdown of her marriage, she obtained child-support maintenance assessments through the Child Support Agency. Enforcement was protracted and substantial arrears accrued. She contended that the statutory exclusion of direct enforcement proceedings by a person with care infringed the right of access to a court under article 6(1) of the Convention.

Wall J upheld her claim at first instance: [2003] EWHC 1021 (Admin); [2003] 2 FLR 578. The Court of Appeal, by a majority, reversed that decision: [2004] EWCA Civ 225; [2004] QB 1378. The central issue before the House was whether the Child Support Act 1991 preserved a substantive civil right which the appellant could invoke for the purposes of article 6.

1. Appeal dismissed by a majority of four to one. Lord Bingham, Lord Hope, Lord Walker and Lord Brown held that the Child Support Act 1991 gave a person with care no right to enforce a maintenance assessment directly against the non-resident parent. The exclusion was a deliberate and central feature of the statutory scheme, not an accidental omission.

2. Per Lord Bingham and Lord Hope, the Act replaced the former court-based system with a national system of assessment, collection and enforcement. Although the non-resident parent was responsible for maintaining the qualifying child, the right corresponding to the assessed obligation was vested in the Secretary of State. Section 4(2) left enforcement to the Secretary of State’s discretion, while section 8 curtailed the courts’ former maintenance jurisdiction.

3. Article 6(1) guarantees procedural safeguards in the determination of civil rights having an arguable basis in domestic law. It does not require a contracting state to create a substantive cause of action which its legislation has withheld. Since the appellant had no domestic right to bring direct enforcement proceedings, article 6 was not engaged. The alleged delay therefore did not constitute unlawful conduct under section 7(1) of the Human Rights Act 1998.

4. Lord Walker clarified that the appellant was not without every enforceable interest. She had sufficient standing to seek judicial review if the agency refused to enforce because of an error of law. That supervisory remedy did not confer a private right to recover the arrears herself. Lord Brown likewise regarded the appellant’s enforceable entitlement as a right to the proper performance of the agency’s public-law duties.

5. Dissenting, Baroness Hale considered that the children’s civil right to the benefit of parental maintenance survived the 1991 Act. In her view, the statutory formula defined the basic obligation, but the restrictions on collection and enforcement were procedural. Article 6 was therefore engaged. Although the general statutory scheme pursued a legitimate aim and was within Parliament’s socio-economic judgment, the agency itself was required to secure timely and effective enforcement. She would have allowed the appeal and restored Wall J’s order.

1. House of Lords: By a majority of four to one, dismissed the appeal and upheld the Court of Appeal’s conclusion that article 6 was not engaged: [2005] UKHL 48.
2. Court of Appeal: By a majority, allowed the Secretary of State’s appeal from Wall J: [2004] EWCA Civ 225; [2004] QB 1378.
3. Administrative Court: Wall J held that article 6 was engaged and granted relief to the claimant: [2003] EWHC 1021 (Admin); [2003] 2 FLR 578.