Karoonian v Child Maintenance and Enforcement Commission (CMEC)

In child-support enforcement proceedings, the statutory gateway to committal or disqualification requires the Commission actually to have sought distress or recovery through the specified enforcement mechanisms. Mere consideration of those steps is insufficient. The Commission must prove, to the criminal standard, the unpaid liability, the liable person’s means, and wilful refusal or culpable neglect. The statute itself preserves the presumption of innocence and is compatible with Article 6. The procedure is not fair where the summons requires the defendant to show cause, the Commission provides no evidence capable of establishing a case to answer, or the defendant is effectively compelled to incriminate himself. Before imprisonment is imposed, the court must consider disqualification and explain why imprisonment is more appropriate.

These were linked appeals by two non-resident parents against suspended committal orders made by the Liverpool and Manchester Family Proceedings Courts. Christopher Gibbons was committed after no attempt had been made to levy distress or recover the arrears through the county-court mechanisms. Kambiz Karoonian had been subject to charging orders, but the district judge did not consider disqualification from driving as an alternative to imprisonment.

The appellants challenged the statutory scheme and the practice used in committal proceedings under the Child Support Act 1991, relying principally on Article 6 of the Convention. The issues included the statutory preconditions, legal certainty, reasonable time, the burden and standard of proof, procedural fairness, and the choice between imprisonment and disqualification.

1. Disposition. All three Lords Justice agreed that both appeals should be allowed and both orders of commitment discharged.
2. Under sections 39A and 40 of the Child Support Act 1991, the Commission must actually have sought to levy the arrears by distress or to recover them under section 36. Proper consideration of enforcement is insufficient. The precondition was absent in Gibbons’s case, while charging orders satisfied it in Karoonian’s case.
3. The statutory provisions are sufficiently certain. The relevant inquiry concerns the liability order, an enforcement attempt, the unpaid amount, the liable person’s means, and wilful refusal or culpable neglect. The relevant period is ordinarily between the liability order and the committal hearing.
4. Before choosing imprisonment, the court must inquire whether the liable person needs a driving licence to earn his living, consider disqualification as the statutory alternative, and give sufficient reasons for preferring imprisonment. The omission of that exercise was an error in Karoonian’s case.
5. The statute itself places the burden on the Commission and requires proof to the criminal standard. The defendant cannot be compelled to incriminate himself. Ward LJ considered that the procedures commonly adopted were frequently unfair because the Commission gave no evidence of means and the summons required the defendant to show cause. Richards LJ, with Patten LJ agreeing on this aspect, considered that means and conduct could be examined at one hearing, provided the burden of proof and procedural safeguards were respected. The show-cause wording was nevertheless seriously defective.
6. Ward LJ further stated that suspension of a committal order should rarely exceed two years. The children’s interests must also be taken into account, and adequate time must be allowed to answer evidence.

• Court of Appeal (Civil Division): Both appeals allowed; the orders of commitment were discharged.
• Liverpool and Manchester Family Proceedings Courts: Gibbons was committed to 21 days’ imprisonment suspended on payment of arrears at £5 per week. Karoonian was committed to 42 days’ imprisonment suspended on payment of £1,000 per month.