Appendix 1: Memorandum from Prof Nick Wikeley, John Wilson Chair in Law, School of Law, University of Southampton

Introduction

1. I write in my capacity as a law professor at the University of Southampton; my areas of research expertise include child support law and policy. My relevant publications include Child Support Law and Policy (Hart Publishing, 2006) and (with Gwynn Davis and Richard Young) Child Support in Action (Hart Publishing, 1998); see also N Wikeley et al. National Survey of Child Support Agency Clients (DWP Research Report No 152, 2001).

2. I was one of the Specialist Advisers to the House of Commons Work and Pensions Committee for its report on Child Support Reform (Fourth Report of Session 2006-07, HC 219-I). I also gave oral and written evidence to the Public Bill Committee which considered the Child Maintenance and Other Payments Bill 2007 earlier this year (Second Sitting, 17 July 2007 and submission CM1). I am currently engaged as a consultant on a major DWP-commissioned child support research project which is being run by NatCen (the National Centre for Social Research).

3. I should also mention that I hold part-time judicial appointments as an appeal tribunal chairman and a Deputy Social Security and Child Support Commissioner. I therefore wish to make it absolutely clear that I am making the observations in this paper in my personal capacity as an academic researcher. Neither the Social Security and Child Support Commissioners nor the Tribunals Service, nor any of their judicial personnel, should be taken to agree with any of the statements or opinions expressed in this paper.

4. I should perhaps add that I have been advocating a number of the reforms which appear in the Bill for some years now, for example the greater use of DEOs as a collection method in child support cases. I have also suggested that consideration be given to the withdrawal of passports as a high level sanction in appropriate cases for serious non-compliance (see my evidence to the Select Committee in June 2004: The Performance of the Child Support Agency, Second Report of Session 2004-05, HC 44II - Ev 8-14 and CS08).

5. I therefore have some sympathy for some of the underlying policy objectives behind the Bill, even if I do not agree with all the proposed reforms. There are some measures in the Bill which undoubtedly enhance the recognition of human rights. For example, the proposal in clause 15 to repeal section 6 of the Child Support Act 1991 will enhance the autonomy of parents with care on income support and income-related jobseeker's allowance. It will give those parents with care the same options as private clients (those not claiming welfare benefits) and so better protect their Article 8 rights. This note, however, concentrates on those aspects of the Bill which I believe still raise potentially problematic and significant human rights issues. The provisions in the Bill itself which I propose to focus on are principally those relating to enforcement.

6. Part 3 of the Bill comprises extensive amendments to the Child Support Act 1991, mostly in relation to enforcement issues. These relate both to the range of substantive sanctions available to C-MEC and to the enforcement and appeal procedures to be adopted. In my view there are human rights issues raised in both respects. There may well be other human rights issues not highlighted here.

Clause 25: disqualification from holding travel authorisation documents

7. First, as regards substantive sanctions, C-MEC will be able to make an administrative order disqualifying a non-payer from holding or obtaining a travel authorisation (a UK passport and/or an ID card), subject to a right of appeal to the magistrates' or sheriff's court (clause 25). The exercise of such powers will almost certainly be challenged under both the ECHR and under EU law. I have discussed this possibility in general terms in my book Child Support Law and Policy (published before the Henshaw Report, let alone the Bill, was published). Annex 1 to this note includes an extract from the relevant chapter of the book. I also explain later in that same chapter that the US courts have rejected challenges on constitutional grounds to passport withdrawal in child support non-payment cases.

8. The obvious challenge to such a sanction is on EU freedom of movement grounds, although for the reasons I have indicated in my book my view is that such a complaint will probably not succeed. A challenge to the new powers on ECHR grounds may require a little more ingenuity to get off the ground, not least as the UK Government has not ratified Art 2 of Protocol 4 to the Convention. That said, one can envisage a potential challenge brought under Art 8 or possibly even Art 1 of Protocol 1 (although the latter would face an obvious problem in defining a passport as a possession).

9. Although the UK has not ratified Art 2 of Protocol 4, the UK has of course ratified the ICCPR and has entered no reservation to art 12(2), guaranteeing the right to leave any country, including one's own. The existing provisions for travel restriction orders in UK legislation relate to football hooligans and drug traffickers, where there is an obvious connection between the withdrawal of passports and the public policy goal of preventing further offending. The same arguments may not apply with the same force in the context of child support. I also understand that banning orders for hooligans can only be made after court action. However, experience in both the USA and Australia shows that such powers can be very effective in tacking serious child support non-compliance. Yet the UN Human Rights Committee may take a more stringent view as to whether the restrictions are "necessary" in the context of art 12(3) of the ICCPR.

Clause 26: curfew orders

10. The additional new sanction of curfew orders (clause 26) was not proposed by the Henshaw Report (Cm 6894, 2006) and I have to say that there is little evidence that sanctions are deployed in child support systems in other jurisdictions. One obvious risk is that a curfew order might make it impossible for the non-resident parent to exercise contact which has been agreed between the parties or even ordered by the court. The terms of any curfew order must have regard to the defaulter's work, religious or educational commitments (new section 39K(4)) but there appears to be no reference to contact arrangements. It may be, of course, that no contact arrangements are in place, but there are plenty of instances where parties are in bitter disputes over child support and yet contact still manages to be maintained. This omission would seem to raise obvious Article 8 concerns.

11. The proposal to bring in curfew orders is problematic in another way. This concerns the comparison with the Children and Adoption Act 2006. Plans to impose curfew orders on residential parents who unreasonably deny contact between children and non-residential parents were abandoned prior to the Children and Adoption Act 2006. Section 4(1) of that Act inserts five new sections into the Children Act 1989 Act (ss.11J-11N), which provide for new enforcement powers in contact disputes. In particular the new section 11J in the 1989 Act provides for enforcement orders, which require the person in breach of a contact order to engage in an unpaid work requirement. The original Draft Children and Adoption Bill also included a proposal for a curfew requirement as a new sanction to tackle non-compliance with court contact orders.

12. However, following criticism from the Joint Committee (Report of the Joint Committee on the Draft Children (Contact) and Adoption Bill, Session 2004-05, HC 400-I, HL Paper 100-I, para. 89) and others, the Government at the time acknowledged that electronic tagging would not be a proportionate response to non-compliance with contact orders. As a result it abandoned the proposal (Reply to the Report of the Joint Committee on the Draft Children (Contact) and Adoption Bill, Session 2004-05, Cm 6583, paras. 36-37).

13. Non-compliance with court orders for contact and non-compliance with CSA/C-MEC orders are, of course, not the same thing. However, parents will typically see the two issues as inextricably bound up with each other, even though in legal terms they are wholly separate. There is a real risk that the imposition of curfew orders on non-compliant non-resident parents will be viewed as unfair when the same sanction is not imposed on parents with care who unreasonably deny contact. I acknowledge that this may be more of a policy and presentational argument than a purely human rights issue.

Clause 23: administrative liability orders and appeal rights

14. Procedurally the Bill represents a marked shift away from court-based enforcement to administrative recovery action. So, for example, C-MEC will in future be able to issue a liability order by administrative action (clause 23). The justification for this change is that applying to court is "a slow process that takes on average more than 100 days to complete" (White Paper, Cm 6979, para. 5.15). Yet it is unclear how far existing delays are due to the courts and how far they reflect e.g. adjournments caused by the CSA's inability to justify the accuracy of its figures. I am not aware of any hard empirical data on such problems which is in the public domain. It must be said that the CSA's existing record on accuracy hardly inspires confidence, which raises real issues of fairness for non-resident parents. One approach might be to stipulate that these powers should not come into force until CSA/C-MEC's overall accuracy rates on maintenance calculations attain a specified level.

15. There will be a right of appeal against the administrative decision to impose a liability order, but to an appeal tribunal and not a court. Puzzlingly, the appeal tribunal "shall not question the maintenance calculation by reference to which the liability order is made" (new section 20(7A) of the 1991 Act inserted by Sched. 7 para 1(6) to the Bill). This prohibition appears to have been borrowed from the existing provisions relating to magistrates' and sheriffs' courts, where it makes obvious good sense, as those courts have no power to determine the amount of child support liabilities. Those issues are to be resolved through the specialist appeals tribunals (see the House of Lords' judgment in Farley v CSA [2006] UKHL 31). However, the same considerations do not apply in a forum for which the main raison d'être is precisely that it hears appeals against child support calculations.

16. The Secretary of State's letter of 10 August 2007, in reply to that from the Committee's Chairman, explains that regulations will allow appeal tribunals to "vary the amount in respect of which the liability order is made" (page 5). The import of this is not entirely clear. Does it mean that the tribunal is limited to correcting obvious arithmetical errors but can not reinvestigate the basis for the award? Presumably it must if the new section 20(7A) of the 1991 Act is to have some meaning.

17. Again, presumably the policy intention is that parents should challenge decisions on maintenance calculations promptly (hence the standard one month time limit). If, much further down the road, there is a decision to impose a liability order, then again that should be appealed promptly. On that basis the two appeals should be heard at different times on different issues.

18. In the real world, however, life will not be that simple. The CSA is at present not always that efficient at reminding parents of their appeal rights. There is also a one year backstop rule for late appeals. There is also the possibility of appeals to the Commissioner and remittals back to tribunals. One can therefore envisage a situation in which a tribunal might at the same point in time have jurisdiction to hear an appeal on an original assessment and on a much later liability order decision relating to the same calculation. Section 20(7A) of the 1991 Act would seem to be an unwarranted fetter on the tribunal's powers in such circumstances. Whether or not this satisfies Art 6, it is not clear that this creates a system which is user friendly for parents.

19. On a related point I would add that the right to challenge a liability order before an appeal tribunal adds to the confusing fragmentation of appeal rights under the 1991 Act. There is a pressing need for these appeal rights to be reviewed and for the present diversity of appellate arrangements to be rationalised. It is not immediately clear that magistrates' courts should have any role in hearing any child support appeals at all, with the possible exception of committals.

The right to enforce child maintenance awards under the 1991 Act

20. There are also two points not covered in the Bill which I believe raise important human rights issues. The first is a relatively narrow and technical point relating to enforcement. The position under UK law at present is clear - the CSA (and in future C-MEC) has a monopoly over enforcing awards made under the 1991 Act. It follows that a parent with care has no standing to bring enforcement proceedings in her own right or in the name of her children. This applies even if the parent with care is a private client (not on benefits) and so has a direct financial interest in recovering maintenance. This position is confirmed by the decision of the majority of the House of Lords in R (Kehoe) v Secretary of State ([2005] UKHL 48).

21. The Henshaw Report recommended that this rule should be reconsidered (Cm 6894, pp. 31-32). At present, however, the Bill includes no relaxation of the monopoly rule. This is undoubtedly consistent with the decision in Kehoe. It remains to be seen whether the rule survives scrutiny in Strasbourg (Mrs Kehoe's complaint has been admissible, at least on one ground: Application no. 2010/06 [2007] ECHR 580. I should also declare an interest as I provided an expert opinion for the applicant in the hearing before the House of Lords).

22. In the absence of a right to enforce an award directly, a parent with care is left with few options. She can complain to the Independent Case Examiner. She can in theory bring an application for judicial review but this is not a sensible or viable remedy in many cases. She has, according to the Court of Appeal, no right to sue the CSA in negligence (Rowley v Secretary of State for Work and Pensions [2007] EWCA Civ 598). These various avenues do not amount to very much, and it remains questionable whether in total they are consistent with Article 6.

23. I remain of the view that in principle parents with care should have the right, in the last resort, to enforce child support awards through the normal court processes. In practice few will wish to exercise that right but that is little or no excuse for the current state of affairs. It is a sad indictment of the UK system that it imposes a duty on non-resident parents to pay child support but apparently confers no right on the parent with care or children to receive child support.

The absence of a child's right to receive child maintenance

24. The second point I would make is a more general one that develops from this argument. It is notable that the first of the so-called "basic principles" set out in section 1 of the 1991 Act (the parental duty to maintain) is left largely untouched. Many of the changes to the rest of the Act are of the "cut and paste" variety - thus Schedule 3 to the Bill comprises eight pages of amendments to the 1991 Act which may be summarised as "for 'the Secretary of State', read 'the Commission'". The only apparent change to section 1 of the 1991 Act is effected indirectly by updating the definition of 'child' to fit the new child benefit definition (clause 37).

25. So if the Bill is enacted in its current form, section 1 of the 1991 Act will continue merely to assert the parental obligation to maintain - there is no statutory recognition of any right on behalf of the child (or indeed parent with care). So although C-MEC's main and subsidiary objectives are to be enshrined in statute, the 1991 Act itself remains silent on the broader goals of the child support system.

26. The failure of the legislation to engage with 'basic principles' disguises a reluctance to articulate the underlying purpose of child maintenance. A rights-based approach sees children as enjoying a right to participate in the standard of living enjoyed by both their parents, irrespective of which parent they are living with. A needs-based approach is concerned merely with apportioning between parents the assumed costs of raising children. Addressing this question is not just a nice theoretical point - it can assist in solving otherwise intractable policy dilemmas (e.g. as to how to accommodate overnight contact and shared care within a formula system). In my judgment a statutory framework which prioritised the child's right would be more consistent with international obligations under UNCRC and would also conform better with best practice in other jurisdictions. These questions are discussed in more detail in chapter 1 of my book Child Support Law and Policy (see especially pp 27-36).

ANNEX 1

Extract from Child Support Law and Policy pp 460-461

Is there a case for additional enforcement measures?

Some of the weaknesses with the existing legislative framework have been discussed in the context of particular enforcement tools. A more fundamental question is whether there is a case to be made for the introduction of additional enforcement measures, such as banning child support defaulters from overseas travel. As explained in more detail below, the US authorities have the power both to refuse applications for passports and to revoke current passports in such cases. We have already seen that the possibility of a statutory power to withdraw a defaulter's passport was canvassed in the White Paper preceding the 2000 Act, but that this option was not pursued at the time. The issue (and withdrawal) of a British passport is a matter for the royal prerogative, and decisions relating to passports are subject to judicial review. The most common reason for refusing, revoking or withholding a passport is because of a risk that the individual will leave the country in order to evade justice.[50] So it remains the case that, at least as far as statute is concerned, it is only British football hooligans, rather than child support defaulters, who may be prevented (albeit temporarily) from travelling abroad.[51]

There may yet be a case for including withdrawal of a non-resident parent's passport as a potential weapon in the Agency's enforcement armoury. This would certainly be welcomed by those parents with care who seek a departure direction on the basis of their ex-partner's lifestyle being inconsistent with his declared income, pointing to his expensive holidays abroad.[52] Non-resident parents would doubtless argue that the refusal or withdrawal of a passport would constitute an unwarranted breach of the father's human rights, but a court might well conclude that, in appropriate cases, it was a proportionate response to the problem of enforcing child support liabilities.[53] However, the Select Committee has recommended that the Department examine the use of travel bans and passport withdrawal as an enforcement tool for non-resident parents who persistently default on their child support commitments.[54] It is therefore relevant to consider the enforcement mechanisms available in comparable jurisdictions, and especially in the United States of America and Australia.

51   Convicted football hooligans may be made subject to a banning order under s.14B of the Football Spectators Act 1989 (inserted by Football (Disorder) Act 2000, s 1 and Sch 1), which may include a condition requiring the (temporary) surrender of a UK passport (see s 22A) before a game to be played overseas (s 14E(3)); see also the summary powers under ss 21A-21C. These powers were renewed for a further five years by the Football (Disorder) (Amendment) Act 2002. Back

52   M Chetwynd et al, The Departures Pilot Scheme (DSS In-house report 33, London, 1997) at 32. Back

53   The Court of Appeal has held that football banning orders do not contravene either the right to a fair trial under art 6 of the ECHR or the right to freedom of movement: Gough v Chief Constable of the Derbyshire Constabulary [2002] EWCA Civ 351, [2002] 2 All ER 985. Back

54   n 87 above at para 192. Back