Farley (FC) (Respondent) v. Child Support Agency and another (Appellants)

On an application for a child-support liability order, section 33(4) of the Child Support Act 1991 requires the magistrates’ court to proceed on the basis that the underlying maintenance assessment or calculation was lawfully and properly made. Its function is confined to confirming that the assessment concerns the defendant and that the payments became payable but remain unpaid.

A challenge alleging that the Secretary of State lacked jurisdiction to make the assessment belongs within the statutory review and appeal structure, where available, or otherwise in judicial review proceedings. Where an appeal concerning the assessment’s validity is pending, magistrates may adjourn a liability-order application if proceeding would be oppressive.

The Secretary of State sought a liability order under section 33 of the Child Support Act 1991 for unpaid child support assessed against Mr Farley. Mr Farley accepted that the assessed sums were unpaid but contended that the assessments were unlawful because the statutory prerequisites for applications under sections 4 or 6 had not been established.

The magistrates held that section 33(4) prevented them from examining the assessments’ validity. Keith J dismissed an appeal by case stated: [2004] EWHC 1655 (Admin). The Court of Appeal eventually granted judicial review, declared the magistrates and Keith J wrong in law, and quashed the liability order: [2005] EWCA Civ 869.

The central issue was whether section 33(4) permitted a magistrates’ court, on a liability-order application, to investigate whether the underlying maintenance assessment was a nullity.

1. Appeal allowed unanimously. Lord Nicholls delivered the leading speech. Lord Hope, Lord Hutton, Lord Walker and Lord Mance agreed with it and with the proposed order.

2. Per Lord Nicholls, section 33(4) of the Child Support Act 1991 admits only one interpretation when read in context. The magistrates must proceed on the basis that the maintenance assessment was lawfully and properly made. They may check that it concerns the defendant and that the payments became payable and remain unpaid, but may not examine any other aspect of its validity. They need not receive evidence that the application satisfied the prerequisites in sections 4 to 6.

3. The limitation is part of a scheme allocating the validity question to another adjudicative process. If the Act had provided no effective alternative means of challenging an assessment, section 33(4) would have required the strict construction applicable to provisions excluding judicial scrutiny of an alleged nullity, consistently with Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

4. The original sections 18 and 20 supplied an effective route. An absent parent could seek review of the assessment itself by a child support officer who had not taken the original decision and could then appeal to a child support appeal tribunal. It would have been surprising and undesirable to give magistrates parallel jurisdiction over the same question.

5. The version introduced by the Social Security Act 1998, which governed when these assessments were made, confined the statutory appeal to the assessment’s amount or commencement date. It therefore left jurisdictional challenges to judicial review. That temporary and unsatisfactory position did not alter the meaning of section 33(4), whose scope had remained materially unchanged since enactment.

6. The Court of Appeal’s order was set aside so far as it granted judicial-review relief. The judicial-review application was dismissed, and the decisions of the magistrates and Keith J were declared correct in law.

7. Lord Nicholls added that, if an appeal against an assessment’s validity is pending, magistrates should consider whether making a liability order would be oppressive. They may adjourn under section 54 of the Magistrates’ Courts Act 1980 for the appeal’s determination, or on such shorter period and terms as are just.

1. House of Lords: The Secretary of State’s appeal was allowed unanimously. The judicial-review relief granted by the Court of Appeal was set aside, the application was dismissed, and the magistrates’ and Keith J’s decisions were declared correct in law: [2006] UKHL 31.

2. Court of Appeal: The court reopened and set aside its earlier decision, permitted judicial-review proceedings, granted relief and quashed the magistrates’ decision: [2005] EWCA Civ 869.

3. Court of Appeal: The court had initially allowed an appeal by case stated and held that magistrates possessed an adjudicative function concerning whether the non-resident parent was liable: [2005] EWCA Civ 778. That judgment was later set aside because Keith J’s decision was final.

4. Administrative Court: Keith J dismissed the appeal by case stated and held that the magistrates could not examine the quantification or validity of the maintenance assessments: [2004] EWHC 1655 (Admin).

5. North Somerset Magistrates’ Court: The justices held that they could not examine whether the Secretary of State had authority to make the assessments and made the liability order.