Farley v Secretary of State for Work and Pensions & Anor [2005] EWCA Civ 778

C1/2004/1601(A), C1/2004/1601

[2005] EWCA Civ 778

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MR JUSTICE KEITH)

Venue Royal Courts of Justice

Date Tuesday 25 January 2005

The Strand

London

WC2A 2LL

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(The Lord Woolf of Barnes)

THE MASTER OF THE ROLLS

(Lord Phillips of Worth Matravers)

LORD SLYNN OF HADLEY

B E T W E E N:

Between

ALEC GEOFFREY FARLEYAppellant

SECRETARY OF STATE FOR WORK AND PENSIONSRespondent

CHILD SUPPORT AGENCYRespondent

(Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4A 2HD

Telephone 020 7421 4040

Official Shorthand Writers to the Court)

MR DAVID BURROWS assisted by MRS J FRANCE-HAYHURST (of David Burrows, Solicitors and Advocates, Bristol BS1 5LJ) appeared for APPELLANT/CLAIMANT

MR TIM WARD (instructed by Office of Solicitor, Department of Work & Pensions, London WC2A 2LS) appeared for RESPONDENTS

J U D G M E N T

Tuesday, 25 January 2005

[1]This is an appeal by way of case stated. It is significant for two reasons. First, sitting on this appeal, in addition to the Master of the Rolls and myself, is Lord Slynn of Hadley. In his career at the Bar and as a Judge Advocate to the European Court of Justice, as a Judge of the European Court, as a judge at first instance and in the House of Lords in this jurisdiction, he has made a truly outstanding contribution to justice both in this country, in the European Union as a whole and in many other jurisdictions. His judicial career commenced in 1972 as a High Court Judge and although he retired as Lord of Appeal in Ordinary in 2002, thirty years after he had commenced as a High Court Judge, he has continued until the present time to sit judicially when his many other activities permitted him to do so. In this jurisdiction no judge can sit after the age of 75. Although this is difficult to accept, on 17 February next Lord Slynn will be 75. So this will be the last group of cases that he will hear in this jurisdiction in that capacity. He will no doubt continue to sit elsewhere and indeed will also sit in the Privy Council for dealing with appeals from another jurisdiction. Fortunately, his many activities which have enriched the law in this country and overseas will continue. I speak for both the Master of the Rolls and myself when I say that we feel privileged to be sitting with Lord Slynn today.

The Issue

[2]The appeal is of significance for a different reason. We have to determine what should be the approach to the interpretation of legislation that gives an adjudicative role to a court but is said to restrict, or indeed exclude, the ability of a court to investigate issues which would otherwise deprive it of part of its jurisdiction.

Raising Issues not included in the Case Stated

[3]On an appeal by case stated the critical document is always the Case itself as settled by the magistrates. However, on this appeal Mr Burrows, who has appeared on behalf of the appellant, has invited us to refer to fresh evidence which was relevant as to how the Secretary of State performed his duties and

Article 6 of the European Convention on Human Rights

and the Human Rights Act 1998, but is not relevant to the issues that arise from the Case. Accordingly we have declined to consider the fresh evidence.

The Legislation

[4]The relevant Act that we have to apply, the Child Support Act 1991 ("the 1991 Act"), has been regularly and significantly amended. We are concerned by the amendments which were made by the Child Support Act 1995 ("the 1995 Act"). We have also had to consider the amendments which were made by the Child Support, Pensions and Social Security Act 2000 ("the 2000 Act"), which amended the 1991 Act from 2003. Unless the Case is amended this Court like the Administrative Court cannot go outside the case.

[5]There is no dispute between the parties that we are concerned with the Act as it was amended by the 1995 Act. In the course of his submissions Mr Burrows referred us to a commentary on the child support legislation by Edward Jacobs and Gillian Douglas. That work conveniently summarises the purpose of the 1991 Act. Paragraph 2 of the introduction says:

"The Act is a fundamental attempt to tackle four key problems identified by the government concerning child maintenance. The first was the low level of support which absent parents were being required to pay for their children by courts under the pre-existing law. The second was the wide disparities between different courts in fixing those amounts due to the broad discretion and assessment which the law gives to the courts. The third was the poor enforcement mechanisms available to ensure that orders were met. And finally, and arguably the most important to the government, was the increasing drain on the social security budget caused by single parents taking up income-related benefits to meet the shortfall between the court orders or voluntary maintenance and the true cost of bringing up their children."

[6]Section 1 of the Act (as amended by the 1995 Act) imposes a responsibility on each parent of a child to maintain that child. A parent who does not have the care of the child, the "absent parent", should discharge that obligation by making payments of such amount as are determined by a maintenance assessment under the 1991 Act. This was in contrast to the approach which had been adopted before the 1991 Act when the magistrates' court had a wider jurisdiction over the obligation of an absent parent to pay maintenance.

[7]The duty to pay maintenance that has been assessed as payable is not made payable as a civil debt. It therefore cannot be directly enforced by action in any civil court or by any means other than that provided for by the Act. Sections 31-34 of the Act contain methods of enforcing payment. One method of enforcing payment is by a deduction from earnings order where payment is achieved by the liable person's employer being under a duty to comply with the order by deducting the appropriate amounts from the employee's earnings. We are not concerned directly with this method of enforcement which is contained in sections 31 and 32 of the Act. The other method of enforcement is that contained in sections 33 and 34 of the Act. Section 33 is the section with which we are primarily concerned on this appeal. It contains the jurisdiction of the magistrates that is said to be limited. Fortunately, section 33 has not been the subject of amendment and has been in the same form throughout the life of the Act. It commences by giving the Secretary of State power to apply and the magistrates' power to grant a liability order. This power of the magistrates is then restated by subsection (4). It is in these terms:

"Liability orders (1) This section applies where -- (a) a person who is liable to make payments of child support maintenance ("the liable person") fails to make one or more of those payments; and (b) it appears to the Secretary of State that -- (i) it is inappropriate to make a deduction from earnings order against him (because, for example, he is not employed); or (ii) although such an order has been made against him, it has proved ineffective as a means of securing that payments are made in accordance with the maintenance assessment in question. (2) The Secretary of State may apply to a magistrates' court .... for an order ("a liability order") against the liable person. (3) Where the Secretary of State applies for a liability order, the magistrates' court .... shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid. (4) On an application under subsection (2), the court .... shall not question the maintenance assessment under which the payments of child support maintenance fell to be made."

[8]It will be observed that section is a wholly different process from that of the earlier provisions that deal with enforcement by a deductions from earnings order. In the case of deductions from earnings orders under section 31 there is provided a method of enforcement by deduction; whereas section 33 results in no more than a liability order, that liability order being necessary to obtain the consequential orders that can be made once there exists a liability order. The action which can be taken in consequence of there being a liability order include distress, sale of the liable person's goods, garnishee proceedings and charging orders (see sections 35 and 36). In addition, if necessary (although this would be a last resort) there is the ability to have the liable person committed to prison under section 40 of the 1991 Act.

[9]It will be noted that section 33(1) applies to a person "liable to make payments of child support maintenance" who fails to make payments. The section also provides that the magistrates are under an obligation to make the order "if satisfied that the payments in question have become payable by the liable person and have not been paid". In addition, section 34 of the Act gives the Secretary of State power to make regulations and to prescribe the procedure to be followed on an application for a liability order, the contents of the liability order and, once the liability order has been made, for the person against whom it is made, during such time as the amount specified in the order remains wholly or partly unpaid.

[10]Sections 4 and 6 of the 1991 Act provide alternative situations in which the Secretary of State obtains jurisdiction to make a maintenance assessment. Section 4 provides:

"(1) A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the absent parent may apply to the Secretary of State for a maintenance assessment to be made under this Act with respect to that child, or any of those children." .... (10) No application may be made at any time under this section with respect to a qualifying child or any qualifying children if -- (a) there is in force a written maintenance agreement made before 5th April 1993, or a maintenance order, in respect of that child or those children and the person who is, at that time, the absent parent; or (b) benefit is being paid to, or in respect of, a parent with care of that child or those children." (inserted by amendment) Subsection (11) defines "benefit" as: 11. "any benefit which is mentioned in, or prescribed by regulations under, section 6(1)."

Sections 4(10) and 4(11) are provisions that limit the ability of the Secretary of State to rely on section 11. The first occurs when a written maintenance agreement exists (and here it is said by the appellant that there was a written maintenance agreement); the other occurs because of the reference to benefit being paid. This provision is to ensure that section 6, to which I now turn, is an alternative source of power to make a maintenance assessment to that contained in section 4.

Subsection (11) defines "benefit" as:

[11]Section 6 provides:

"(1) Where income support, an income-based jobseeker's allowance, family credit or any other benefit of a prescribed kind is claimed by or in respect of, or paid to or in respect of, the parent of a qualifying child she shall, if -- (a)she is a person with care of the child; and (b)she is required to do so by the Secretary of State, authorise the Secretary of State to take action under this Act to recover child support maintenance from the absent parent. (2) The Secretary of State shall not require a person ('the parent') to give him the authorisation mentioned in subsection (1) if he considers that there are reasonable grounds for believing that -- (a)if the parent were to be required to give that authorisation; or (b)if she were to give it, there would be a risk of her, or of any child living with her, suffering harm or undue distress as a result. (3) Subsection (2) shall not apply if the parent requests the Secretary of State to disregard it. (4) The authorisation mentioned in subsection (1) shall extend to all children of the absent parent in relation to whom the parent first mentioned in subsection (1) is a person with care."

It will be observed that, while there are circumstances which can deprive the Secretary of State under section 4 of his power to make a maintenance assessment, under section 6(1) certain circumstances need to exist before the Secretary of State can make a maintenance assessment. If those circumstances do not exist then any maintenance assessment which would be made purporting to exercise those powers would be defective. 12. Sections 4 and 6 have to be read with section 11. Section 11 provides:

"(1) Any application for a maintenance assessment made to the Secretary of State shall be dealt with by him in accordance with the provisions made by or under this Act. .... (2) The amount of child support maintenance to be fixed by any maintenance assessment shall be determined in accordance with the provisions of Part I of Schedule 1." 13. Assistance is given as to the approach of the Secretary of State as to the manner in which the Act operates by the argument which was advance on his behalf in Secretary of State for Social Security v Harmon; Same v Carter; Same v Cocks (CA) [1998] 2 FLR 598. That case was concerned with a different situation to that here. Three absent fathers who had been assessed for child maintenance support argued that an authorisation was invalid because the mothers caring for the children were being paid income support to which they were not entitled. 14. In his judgment, starting at page 604D Millett LJ refers to the agreement on behalf of the Secretary of State. Millett LJ says: "

The jurisdiction issue raises the question whether the child support officer, the tribunal or the commissioner had jurisdiction to question the validity of the Secretary of State's decision under section 6(1) of the Act to require a parent with care to authorise him to take action under the Act to recover child support maintenance from an absent parent. The Secretary of State has stressed that the Act draws a clear division of functions between the Secretary of State on the one hand and the child support officer on the other. In section 6 cases, the division is made clear by a distinct two-stage process. There is, first, the imposition on a parent with care of a requirement to authorise the Secretary of State to make an application for child support maintenance, the acceptance of such application, and its reference to the child support officer. All that is done by the Secretary of State under sections 6 and 11(1). The second stage is the calculation of the amount of maintenance payable, and that is done, not by the Secretary of State, but by an independent child support officer, under sections 11 and 12 of and Schedule 1 to, the Act. The Secretary of state submits that the importance of a division of those functions for present purposes is that the decisions of the Secretary of State at the first stage are not appealable, but the decisions of the child support officer can be appealed to the tribunal and the commissioner. The statutory machinery however does not provide power for the tribunal and the commissioner to do anything beyond reviewing the assessment made by the child support officer. They cannot go outside the scope of the functions which are entrusted by the Act to the child support officer. Since the jurisdiction of the appellate authorities is confined to that of the child support officer and it is clear that he has no power to question or review the decision of the Secretary of State which led to the referral of the application to him, then it follows that none of the appellate bodies have any power to decide the validity of the procedure which is being invoked. These submissions have not been challenged by Mr Mostyn QC. In his careful skeleton argument he accepts that the decision-making process under section 6(1) of the Act is vested solely in the Secretary of State, and that neither the child support officer nor the child support appeal tribunal or the child support commissioner has any jurisdiction to question such a decision. Mr Mostyn accepts that to the extent that any of the commissioners suggested otherwise, their reasoning cannot be supported. As I read their decisions, however, none of them suggested otherwise." 15. The views there expressed do not form part of the decision reached by the court in that case and I do not suggest that they are binding upon us. However, they clearly indicate the approach which was then being adopted by the Secretary of State to the legislation. As the 1995 Act was then in force and is referred to in the judgment of Millett LJ, it appears that the court would have been aware of the amendments which have been made to the Act. It is clear that in that decision it is recognised that the Secretary of State's view was in accordance with the submission of Mr Burrows that there is a distinction that can be drawn between, as Mr Burrows describes it, liability and quantum when it comes to challenging the Secretary of State's decision. 16. When the language of the relevant statutory provisions is examined, particularly as to the right of appeal from the support officer they do not reasonably make clear the need for that concession, as was pointed out by the Master of the Rolls in any event. Nonetheless, it seems to me that the important matter is that the Secretary of State at that time so viewed the appellate power on a review. That is of relevance when considering the proper interpretation of section 33 and in particular the extent to which the jurisdiction of the magistrates under that section is limited. The Case Stated 17. The case stated which we are considering was in respect of an adjudication of the North Somerset Justices made on 4 December 2003. However, the assessment with which it dealt was made many years earlier. The facts set out in the case summarise the position which the justices had to consider. The complaint was made on 15 July 2003, which resulted in the matter coming before the justices. On the same date a summons was issued. The complaint was then adjourned on five occasions, until 4 December 2003 when the appellant was required to attend. He did so attend on that day, when the legal representative of the Secretary of State submitted that the appellant had failed to make payments for child maintenance totalling £32,639.94. It was suggested that that sum was payable and outstanding. 18. The appellant gave evidence of a maintenance agreement dated 27 July 1999 between himself and his wife. He stated that he had paid in accordance with that agreement. His solicitor, Mr Burrows, submitted that the court had to be satisfied that the appellant was a liable person in accordance with section 33(1)(a) of the Act. He made various submissions in support of that contention, including referring to a decision in Secretary of State for Social Security v Shotton

[1996] 2 FLR 241

, to which reference will be made later. The justices made a liability order and gave their reasons which are set out in the Case. They recorded the facts which are set out in the complaint and which were not challenged by the appellant. They referred to Mr Burrows' contention that they must be satisfied by evidence that the parent with care of the child (the appellant's former wife) was claiming benefit which authorised the Secretary of State to recover child support maintenance from the appellant under section 6 of the Act. 19. The justices recorded that they had been referred to Shotton and they noted that it was held that the sole question to be determined by magistrates regarding liability orders is as stated in subsection (3), to which I have already referred. They went on:

"We take the view that if we were to require the CSA to produce evidence regarding the former Mrs Farley's claim for benefit we would be exceeding our powers. We therefore make a liability order as requested. We do not believe we have power to suspend the liability order pending our decision being challenged. However, if an appeal is lodged we would express no opposition to the order being suspended if this is legally possible."

The magistrates then set out the contentions of the appellant. They referred to Latham J's judgment in Shotton, and they posed the following questions to be answered on the appeal:

"(1) Do we have any adjudicative function under section 33(1)(a) Child Support Act 1991 as to whether or not a non-resident parent is a liable person? (2) When dealing with an application for a liability order are we required to receive evidence that the parent with care was claiming a benefit which authorised the Secretary of State to recover child support maintenance?"

The Judgment of the Court Below 20. The appeal from the magistrates came first of all before Keith J sitting as a judge in the Administrative Court. He came to a conclusion adverse to the appellant. In his judgment, having dealt with various provisional matters, he turned to the jurisdiction of the magistrates' court. He referred to the argument advanced by Mr Burrows, that section 33(4) prevents the magistrates' court from questioning the amount of the arrears, but it does not prevent the magistrates' court from questioning whether child support maintenance was payable in the first place. Keith J continued in his judgment:

"11. .... In other words, it prevents an inquiry into quantum, but does not prevent an inquiry into liability. That is said to be borne out by recent amendment to section 33(4) which substitutes the term 'maintenance calculation' for the term 'maintenance assessment'." (That is an amendment which has in fact been made.) "

That is said to reinforce the point that section 33(4) relates to the process by which the calculation of the maintenance has been carried out, rather than whether that process should have started in the first place. The contention is also borne out, so Mr Burrows argued, by the language of section 33(3) which requires the magistrates' court to be satisfied 'that the payments in question have become payable by the liable person'. Since 'the liable person' means 'a person who is liable to make payments of child support maintenance' (section 33(1)(a)), how could the magistrates' court be satisfied that child support maintenance has become payable by such a person if it cannot inquire into whether the person against whom the liability order is sought was liable to make the payments in the first place? 12. I cannot go along with this argument. The term 'maintenance assessment' has been changed to 'maintenance calculation' throughout the Act, even in those sections, such as section 4(1), which relate to the liability to pay child support maintenance, not merely to its calculation. That suggests that the use of the term 'maintenance assessment' in section 33(4) relates to the liability to pay child support maintenance as well as its calculation. And the words 'a person who is liable to make payments of child support maintenance' more naturally mean 'a person who the Secretary of State has decided should make payments of child support maintenance' rather than 'a person who may be liable under the provisions of the Act to make payments of child support maintenance'. 13. Moreover, the argument advanced on behalf of Mr Farley is inconsistent with what one might expect to be the function of the magistrates' court. It is more likely to have the function of deciding whether the arrears alleged by the Secretary of State had actually accumulated (which is an important issue since payments of child support maintenance are not always made through the CSA, and might be paid directly by the absent parent to the parent with care of the child), rather than deciding what may be difficult questions as to whether the parent in respect of who the liability order was sought was liable to make payments of child support maintenance in the first place. It is not as if that parent does not have an opportunity to challenge his liability to make payments of child support maintenance. I accept that it is questionable whether a parent's liability to make payments of child support maintenance at all can be made the subject of an appeal to the Appeal Tribunal under section 20 of the Act. Such a parent undoubtedly can on the current wording of section 20, but I doubt whether he could on the wording of section 20 as it applied to Mr Farley's case. However, such a parent can certainly do so by requesting the Secretary of State to revise his decision under section 16. The decisions to which section 16 relates (as does section 20 on its current wording) include a decision under section 11. Mr Burrows argued that a decision under section 11 related only to the calculation of the amount of child support maintenance which is payable, not to whether child support maintenance is payable at all. But section 11(2) expressly provides otherwise. 14. The view which I have taken of section 33 is in line with the view expressed by Latham J (as he then was) in Secretary of State for Social Security v Shotton .... In that case, the issue was whether section 33 prevented the magistrates' court from questioning the amount of arrears. Latham J held that it did, and Mr Burrows, as I have said, does not contend otherwise. But Latham J said at page 244B-C:

'The statutory scheme seems to me to be straightforward. All matters relating to the quantification or validity of a maintenance assessment are to be dealt with through the review and appeals structure created by the Act.'

Having referred to section 33(3), he went on to say at pages 244H-245A:

'In my view, the consequences of this subsection, taken together with section 33(4) which precludes the magistrates' court from questioning the maintenance assessment, is that the sole question to be determined by the magistrates is whether or not payments have become payable by the liable person and have not been paid. If that is established the magistrates are bound to make a liability order.'

It is true that Latham J was not concerned with whether the parent had been liable to make payments of child support maintenance, but he nevertheless took the view that questioning the 'validity' of a maintenance assessment was outside the role of the magistrates' court. Its sole function was to decide whether or not the arrears alleged by the Secretary of State had accumulated. Conclusion 15. For these reasons, I agree with the magistrates' court's conclusion that it did not have the jurisdiction to consider whether Mr Farley had been liable to make payments of child support maintenance to his former wife. The answer to each of the questions on which the opinion of the High Court was sought is therefore No. It follows that this appeal must be dismissed." The Submissions on this Appeal 21. In his submissions before us today, Mr Burrows has criticised the reasoning of Keith J. It is not clear to us whether Keith J was referred to the Harmon decision. If he was, he does not take into account in his reasoning the recognition in that case by the Secretary of State of the clear distinction upon which Mr Burrows relied. In coming to his conclusion Keith J was clearly influenced by the judgment of Latham J in the Shotton case. It is not necessary for us to refer in more detail to Shotton because Keith J has set out the relevant dicta and also set out the fact that Latham J was not concerned with the issue which we have to consider on this appeal, namely whether Mr Burrows is right and that section 33(4) has no application to the question of liability rather than the question of quantum. 22. Section 20 of the Act (as amended at the relevant time) provides the right of appeal. Subsection (2) of that section states:

"Where a maintenance assessment is in force -- (a) the absent parent or person with care with respect to whom it was made; .... shall have a right of appeal to an appeal tribunal against the amount of the assessment or the date from which the assessment takes effect [my emphasis]." 23. The power of appeal as it was at the relevant time therefore would not assist the appellant because he could not appeal under that section. Any right to appeal would have to depend upon the Secretary of State's power to review. If that power is limited in the way that has been indicated in the Harmon case it would also not assist the appellant. Conclusions 24. The question for us is whether the statutory code clearly points to the exclusion of the jurisdiction that the magistrates' court could normally be expected to have to inquire into whether the court has jurisdiction to make the determination which was sought -- in particular in this case whether the appellant was a liable person or whether the mother was or was not in receipt of one of the specified benefits. 25. I am not impressed by the suggestion that the exclusion should arise from the right of review or appeal. As to the appeal, there is the problem with the language of section 20. As to the review and the subsequent appeal that may arise under the review, the power to review and the rights to appeal thereunder are by no means clear in their effect. The Secretary of State's view of those powers is inconsistent with the appellant being able to make use of those powers. It is at least unclear whether the appellant would be able to take advantage of that right of review. 26. Accordingly, any challenge to the jurisdictional question, which the magistrates were not prepared to determine, could only be made if the magistrates' approach is correct on an application for judicial review. It seems to me that the jurisdiction of judicial review to challenge the Secretary of State's powers is hardly an appropriate alternative remedy in the field of the enforcement of maintenance. One is left with the language of section 33 and in particular section 33(4). 27. It is said that the court must not question the maintenance assessment, or now (by amendment) the maintenance calculation. These words do not necessarily go to the validity of the maintenance assessment. In addition, if Keith J were right, I would expect the language of section 33(1)(a) to be different. Instead of referring to a person who is liable to pay, I would expect it to say a person who has been required by the Secretary of State to pay (or similar words which merely refer to the factual position rather than the position as to liability). 28. Finally, I turn to consider the practical consequences of giving the magistrates' court jurisdiction. In the majority of cases no doubt the necessary concessions will be made to establish the jurisdiction of the magistrates to make a liability order. In cases where there is no concession, if this appeal is allowed there will be the need for evidence to establish jurisdiction. That evidence is likely to be (certainly in the great majority of cases) largely formal. However, the fact that the evidence is formal does not mean that it should not be given where an issue is raised by a person in the appellant's position. All that it means is that the problems that will arise for the Secretary of State on the appellant's argument will be limited. 29. It is clear (although this is not so apparent from the Case) that the one thing that the appellant sought to urge before the magistrates was that the Secretary of State had no jurisdiction to make the maintenance assessment he did under section 4 or under section 6. It is the jurisdiction which the Secretary of State has under those sections that can make the appellant a person who is liable to make payments of child support maintenance. Without that jurisdiction the Secretary of State's maintenance assessment would in my judgment be at least invalid and possibly a nullity. If the appellant was not a person who was liable to make payments, then no payments were payable by him. 30. That being so, it seems to me that this appeal should be allowed. It would be wrong, in my judgment, for magistrates to make a liability order which could have the consequences that the liable person could be sent to prison without having a proper and convenient forum in which to challenge the Secretary of State's conclusion that he was liable to make a payment. I am not satisfied that under the legislation as it existed at the relevant time there was any satisfactory alternative to challenging the matter before the magistrates. 31. Accordingly, I would answer the questions posed by the magistrates in the following terms. To question 1, I would answer that they have an adjudicative function. The adjudicative function is as to whether a non-resident parent is a liable person. To question 2, I would answer that the magistrates are required to receive evidence, where it is appropriate, that the parent with care was claiming a benefit unless there is a concession making this unnecessary. 32. I would therefore allow this appeal. 33. THE MASTER OF THE ROLLS: This appeal raises a short point of statutory construction. It relates to the extent of the jurisdiction of the magistrates' court when the Secretary of State applies for a liability order under section 33 of the Child Support Act 1991 ("the Act"). The Lord Chief Justice has recited the relevant parts of that section in his judgment. 34. The Act has been significantly amended on two occasions so that there are three versions of it, but section 33 itself has not been amended. This appeal relates to events to which the second version applies. A maintenance assessment has been made against Mr Farley. This purports to have been made pursuant to the provisions of section 6 of the second version of the Act. The Secretary of State applied for a liability order to the North Somerset Family Proceedings Court pursuant to section 33. Mr Farley sought to challenge the jurisdiction of the court to make the order on the ground that he was not a person liable to make payments of child support maintenance. He alleged that the Secretary of State had not proved that the requirements of section 6 of the Act had been satisfied. The magistrates held that this was not a question which fell within their jurisdiction under section 33. Section 33(4) precluded them from questioning not only the amount of the assessment, but also its validity. They saw their only task as being to determine whether or not the amount of the assessment remained outstanding. On appeal by case stated Keith J held that they were correct. 35. I agree with the Lord Chief Justice that this does not accord to section 33 the natural meaning of the words used. Section 33(1) provides: "

This section applies where -- (a) a person who is liable [my emphasis] to make payments of child support maintenance ('the liable person') fails to make one or more of those payments ...." It does not state that the section applies where a maintenance assessment has been made against a person. 36. Section 33(3) provides for the making of the order if the magistrates' court is satisfied that the payments in question have become payable by the liable person and have not been paid. If one were to stop there, there would be no doubt that the magistrates' court would have to be satisfied of the legal liability of the person in question to make payments before they could properly make the order sought. The question therefore arises: what is the natural meaning of subsection (4), which precludes the magistrates from questioning the "maintenance assessment"? It seems to me that in its context the natural meaning is that the magistrate should not be able to question the calculation, sometimes complex, of maintenance that would have been carried out under the assessment and not that they should be precluded from considering issues of jurisdiction arising under the earlier parts of the section. 37. However, section 33 must be read in its context, and that context is the first version of the Act, for subsequent amendments to other parts of the Act cannot have altered the meaning of section 33. 38. Mr Burrows on behalf of Mr Farley has urged that the words of section 33 should be given their natural meaning. He has buttressed that argument by submitting that the Act in its first version made no provision for appealing against the validity of a maintenance assessment purportedly made pursuant to section 6. Under the first version of the Act, so he submitted, it was for the Secretary of State to decide whether section 6 entitled him to take the necessary action to bring about a maintenance assessment. If he made an affirmative decision in respect of that question, the Act provided no means of appeal against it. The Secretary of State referred the making of the assessment to a child support officer who carried out the necessary calculations and made the assessment. Mr Burrows submitted that section 33(4) related only to the making of the assessment by the child support officer and did not preclude the magistrates from requiring the Secretary of State to prove that the requirements of section 6 had been satisfied so that the maintenance assessment had been lawfully made. 39. Mr Burrows' submissions precisely reflect submissions made on behalf of the Secretary of State in Secretary of State for Social Security v Harmon to which my Lord has referred. There the issue arose of the extent of the appellate functions of the Child Support Appeal Tribunal and the Commissioner as provided for under the first version of the Act. In that context the Secretary of State made the submissions that my Lord has set out, and Mr Mostyn QC accepted that those submissions were correct. 40. I have had some difficulty in understanding the basis of those submissions or why it was accepted that they were correct. Section 11(1) of the first version of the Act provided:

"Any application for a maintenance assessment made to the Secretary of State shall be referred by him to a child support officer whose duty it shall be to deal with the application in accordance with the provisions made by or under this Act."

That section applied both to an application under section 4 and to an application under section 6. 41. Section 18 of the first version of the Act expressly envisaged the situation where an application for a maintenance assessment was refused by a support officer. I have great difficulty in understanding the basis upon which it was submitted and accepted that it was no part of the function of the support officer to consider whether an application for a maintenance order had been properly made. We asked Mr Ward, who appears for the Secretary of State, to explain this, taking him, perhaps understandably, by surprise. He was unable, so far as I am concerned, to provide a convincing explanation. But nor did he or those instructing him feel able to accept that the Secretary of State's submissions in Harmon were erroneous. 42. In these circumstances all that one can say is that there is at least some doubt as to whether on the original version of the Act there was any way for a parent to challenge the validity of a maintenance assessment made under section 6, except by judicial review. The absence of a clear alternative right of appeal against a decision under section 6 reinforces the natural construction of section 33, thereby permitting a parent to challenge the validity in law of a maintenance assessment before being subjected to enforcement measures which can include committal to prison. 43. For these reasons, and for those given by my Lord, the Lord Chief Justice, I agree that this appeal should be allowed and agree with the answers to the questions posed in the case stated that my Lord has proposed. 44. LORD SLYNN OF HADLEY: Despite the arguments that have been ably presented by Mr Ward on behalf of the respondent, I too agree that the appeal should be allowed. 45. Section 33(1) of the Child Support Act 1991 is quite clear that the person to whom the section applies is a person who is liable to make payment of child support maintenance. Section 33(3), which deals with the approach to be adopted by the magistrates' court quite clearly requires them to be satisfied that the payments in question have become payable by the liable person -- that is the person liable to make the payments of child support maintenance. It would have been perfectly possible in those two sections to provide that if the magistrates intended to do so, they need do no more than rubber stamp the decision of the Secretary of State, provided that the person concerned was the person in respect of whom a maintenance assessment existed. It quite clearly did not do that. 46. The juxtaposition of subsections (3) and (4) of the section are not happy. At first glance there is a doubt as to what is the scope of subsection (4). But in my view, considering the section as a whole and the remaining provisions of this Act, subsection (4) is not to be taken as overriding the clear provisions of subsections (1) and (3) and therefore must be limited to the question of calculation. 47. There is clearly doubt as to whether at the time when the legislation was initially adopted any effective alternative route of challenge to the validity of the maintenance assessment was provided in the 1999 Act. That, in my view, gives support to the argument that there is a right of challenge provided from the beginning of this legislation under section 33(3) of the Act since it clearly cannot have been intended that no challenge to validity could be made in any way by anybody at any stage. It seems therefore in my view that in this case the magistrates did have jurisdiction to consider the question -- indeed they were obliged to consider it -- whether they were satisfied that the payments in question had become payable by the liable person and had not been paid. 48. It is clear in this case (it might not be quite so clear in other cases) from the argument that has been presented to us that the evidence involved on the part of the Secretary of State as established is neither incontrovertible nor clear. Other cases may be different. 49. It seems to me that the orders proposed by the Lord Chief Justice should be made. For those brief reasons I, too, would allow this appeal. 50. Outside the judgment may I express my very warm thanks to both my Lords for the very kind words spoken by the Lord Chief Justice before he gave the judgment in this case. I appreciate them and value them very much.

ORDER

(Not part of approved judgment) 13. Appeal allowed; liability order to be set aside; case to be remitted to the magistrates' court for determination of the issue of jurisdiction; appellant's costs, subject to detailed assessment, to be paid by the respondent; payment of £11,000 to be made on account; leave to appeal refused. _________________________________