Child Maintenance and Enforcement Commission v Mitchell & Anor

An application under section 39A of the Child Support Act 1991 is not an action to recover money within section 9 of the Limitation Act 1980. The available orders are imprisonment or driving disqualification. They do not directly recover maintenance, although they may indirectly secure payment. The provision is therefore a coercive enforcement mechanism, not a money claim. The statutory preconditions include an existing liability order, unsuccessful prior enforcement steps, and wilful refusal or culpable neglect. Section 24 of the Limitation Act 1980 was not applicable.

The Commission sought enforcement of substantial child maintenance arrears owed by David Mitchell. A liability order had been obtained, and attempts at deduction from earnings, distress, charging orders and third-party debt orders had failed. The magistrates found culpable neglect and made a 12-month driving disqualification, suspended on payment of £5 per week.

His Honour Judge Vincent allowed Mr Mitchell’s appeal, holding that the application under section 39A of the Child Support Act 1991 was barred by sections 9 and 24 of the Limitation Act 1980. The central issue before the Court of Appeal was whether a section 39A application was an action to recover a sum within section 9.

1. Appeal allowed. The Court of Appeal allowed the Commission’s appeal from the County Court decision.
2. Section 39A of the Child Support Act 1991 operates at the end of a staged enforcement scheme. The Commission must have obtained a liability order, attempted specified earlier methods of recovery, and established wilful refusal or culpable neglect. Even then, the magistrates retain a discretion whether to impose imprisonment, driving disqualification or no order.
3. A liability order is a gateway to further enforcement. It has no positive enforcement effect by itself. The orders available under section 39A are committal to prison or disqualification from holding or obtaining a driving licence. Neither order directly recovers the maintenance debt.
4. The phrase action to recover any sum recoverable by virtue of any enactment in section 9 of the Limitation Act 1980 therefore does not include a section 39A application. The fact that such an application may indirectly secure payment, including through a suspended order subject to payment conditions, does not change its essential character as a coercive alternative to payment. China v Harrow UDC [1954] QB 178, which gave action a wide meaning in the context of money claims, did not assist Mr Mitchell.
5. The respondent accepted that section 24 of the Limitation Act 1980 was inapplicable. The court noted that former Regulation 28 of the Child Support (Collection and Enforcement) Regulations 1992 (No 1989) required a liability order to be sought within six years, and that the order in this case was timely. It left open whether the Limitation Act applied to later liability-order applications after Regulation 28 ceased to operate, and whether delay in making a section 39A application could amount to abuse of process.

• Court of Appeal (Civil Division) allowed the Commission’s appeal and rejected the limitation objection to the section 39A application.
• County Court (Truro) allowed Mr Mitchell’s appeal from the magistrates, holding that the application was barred by sections 9 and 24 of the Limitation Act 1980.
• East Cornwall Justices found culpable neglect but current inability to pay, and made a suspended 12-month driving disqualification order.