Jopling, R (on the application of) v Child Maintenance and Enforcement Commission

The duty under section 2 of the Child Support Act 1991 to have regard to the welfare of affected children is ongoing. Although consideration should preferably occur before enforcement proceedings begin, a failure to record an initial assessment does not necessarily make the proceedings incapable of correction. The decision to seek a liability order is a continuing process, and later, properly informed reconsideration may remove any realistic prospect of substantive relief.

Judicial review remains a remedy of last resort where the claimant has an adequate remedy before the magistrates’ court. Obtaining a liability order did not engage Article 8 of the Convention; alternatively, enforcement pursued to secure provision for children was proportionate and within the statutory aims.

The claimant sought judicial review of the Commission’s decision to pursue a liability order for child-support arrears and of the continuation of proceedings before Barnstaple Justices. He alleged limitation, abuse of process, failure to comply with section 2 of the Child Support Act 1991, and breaches of Articles 6 and 8 of the Convention.

The Commission initially had not specifically considered the welfare of the claimant’s adopted children. During the permission proceedings, senior officers reconsidered enforcement in light of those children and of another child living in Canada. The issue was whether the claim had a realistic prospect of substantive relief after that reconsideration and whether the remaining objections should be dealt with by judicial review or before the magistrates.

1. Permission refused. The claim had no real prospect of obtaining substantive relief once the Commission had produced evidence that senior officers had considered the welfare of the claimant’s adopted children and his child in Canada.
2. Section 2 of the Child Support Act 1991 imposed an ongoing duty to have regard to the welfare of any child likely to be affected by the exercise of a statutory discretion. The better practice was for the decision to pursue a liability order to be properly minuted and taken in a robust and transparent manner. The court did not make a final ruling on the general procedure or scope of the duty. However, the proceedings were a continuing process, so later consideration could satisfy the ongoing duty for the purposes of the permission decision.
3. The objections concerning defective notices, limitation under section 9 of the Limitation Act 1980, and delay affecting Article 6.1 were matters capable of being raised before the magistrates. Judicial review was ordinarily a remedy of last resort, and no sufficient reason existed to depart from that approach.
4. Following R (Denson) v Child Support Agency [2002] EWHC 154 (Admin), the court was not persuaded that Article 8 was engaged by obtaining a liability order. Alternatively, enforcement to secure proper financial provision for children pursued a legitimate statutory aim and was not shown to be disproportionate.
5. The claimant’s letter concerning closure of the maintenance account was tolerably clear: the arrears remained outstanding. The claimant therefore had no reasonably arguable case on that issue. The claimant was ordered to pay £2,000 towards the defendant’s costs.

The judgment was a first-instance decision on a judicial review claim. Permission had previously been refused on paper by HHJ Farmer QC. The claimant renewed the application orally, after which the question of permission was adjourned to a rolled-up hearing before the Administrative Court.