Brookes v Secretary of State for Work and Pensions & Anor

Under the Child Support Act 1991, the welfare duty applies to discretionary enforcement decisions, not formula-based assessments. It requires consideration of every child likely to be affected, including children in a paying parent’s new household. Welfare is not paramount and does not dictate a particular outcome. It must be balanced against the duty to maintain children and the public and taxpayer interests in enforcement. Properly reasoned enforcement may therefore proceed despite adverse effects. A decision in principle to seek committal or disqualification may lapse if left unimplemented for an unreasonable period, requiring fresh consideration. On an assumed Article 8 footing, proportionality requires anxious scrutiny, consideration of less intrusive means and assessment of whether the effect is excessive.

Mr Brookes challenged decisions by the Child Support Agency and its successor concerning enforcement of child support arrears. The Administrative Court, Timothy Corner QC sitting as a High Court judge, refused permission for judicial review on paper and after oral renewal in May 2009: [2009] EWHC 1177(Admin).

The Court of Appeal granted permission under CPR 52.15 and dealt with the judicial review claim itself. The issues were whether enforcement decisions complied with the welfare duty in the Child Support Act 1991, and whether they breached Article 8 of the European Convention on Human Rights.

Disposition. Lord Justice Hughes gave the judgment, with Lord Justice Ward and Lord Justice Patten agreeing. Permission to seek judicial review was granted, but relief was refused in relation to both enforcement decisions. Any enforcement action now taken would require a fresh decision made according to law and the facts as they then stood.

1. Section 2 of the Child Support Act 1991 is a general principle applying to all discretionary decisions by the Commission. It does not apply to the mechanical application of assessment formulae, but it does apply to enforcement. The relevant children include qualifying children and children in the paying parent’s household where their welfare is likely to be affected.
2. The duty is to have regard to welfare. Welfare is not paramount, does not impose a duty to promote welfare, and does not require a particular result or prevent a decision having a negative impact. The likely impact must be balanced against all relevant circumstances, including the welfare of other children, the parent’s duty of support, the public interest in enforcement and the taxpayer’s interest.
3. The officer had genuinely considered the welfare of the children in Mr Brookes’ household. The charging order, low current assessment and historic medical evidence did not require enforcement by bailiffs to be rejected. Distraint could provide payment sooner than reliance on the charging order, and possible adverse effects on the household did not outweigh the properly assessed debt and competing interests.
4. A liability order is ordinarily only a gateway to enforcement. By contrast, bailiff action and an application for committal or driving disqualification can affect children and therefore engage section 2. A decision in principle to invoke the latter powers is reviewable, but it may lapse if left unimplemented for about two years; revival requires a fresh decision and fresh consideration of welfare.
5. The Court assumed, without deciding, that Article 8 was engaged. Proportionality is distinct from Wednesbury reasonableness. It requires anxious scrutiny, while preserving a supervisory role and a discretionary area of judgment. The court should consider whether the objective can be achieved by less intrusive means and, if not, whether the effect is excessive. On that basis, the bailiff decision and the request to consider committal or disqualification were proportionate.

1. Court of Appeal (Civil Division) Granted permission to seek judicial review under CPR 52.15, heard the claim, and refused relief in respect of the bailiff and committal or disqualification decisions.
2. Administrative Court Timothy Corner QC, sitting as a High Court judge, refused permission on paper and after oral renewal in May 2009: [2009] EWHC 1177(Admin).