THE QUEEN (on the application of ROBIN EDWARD SAWDY DENSON) v THE CHILD SUPPORT AGENCY [2002] EWHC 154 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 154 (Admin)Case No Case No: CO/1112/2001Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
THE QUEEN (on the application of ROBIN EDWARD SAWDY DENSON)ClaimantTHE CHILD SUPPORT AGENCYDefendant
Before
Mr Justice MunbyMr Nicholas Grief (instructed by Mr Clive Sutton) for the ClaimantMr Clive Sheldon (instructed by the Solicitor to the Department) for the Secretary of State for Work and PensionsDate 14 February 2002
[1]Mr Justice Munby: These proceedings for judicial review, brought in accordance with permission granted on 19 June 2001 by Elias J, are the latest battle in a long-running dispute between the Claimant, Mr Denson, and the Child Support Agency (“CSA”). The dispute arises out of the CSA’s attempts to make Mr Denson pay maintenance in accordance with the Child Support Act 1991 (“the Act”) to his former wife (“Mrs S”) in respect of their sons. The parties married in 1983, their first son was born in 1986 and the second in 1988, they separated in 1995 and the first application for child support maintenance followed in August 1995.[2]I do not propose to go through the history of the litigation. The details can be found in a Chronology prepared by Mr Denson’s counsel, Mr Nicholas Grief, and, in narrative form, in the skeleton argument prepared by the CSA’s counsel, Mr Clive Sheldon.[3]For present purposes I can start on 12 June 1998 when there was a hearing before the Bournemouth Child Support Appeal Tribunal (“CSAT”) to consider the amount of maintenance for which Mr Denson was liable. In a written decision dated 15 June 1998 and issued to the parties on 22 June 1998 the CSAT determined that with effect from 2 December 1996 the weekly amount payable by Mr Denson should be increased from £4.80 to £113.90.[4]That decision was arrived at despite the fact that Mr Denson had not attended the hearing. In its written decision the CSAT explained why:
“On 25/10/97 a Chair gave comprehensive Directions addressed to the Secretary of State and the parties. Mr Denson failed to comply with these Directions within the time specified or by the eventual hearing date. On 25 th March 1998 the matter came before a CSAT for decision. The Directions Order stated that adverse inferences might be drawn from a failure to comply. Mrs S produced a great deal of documentation at that time, Mr Denson produced nothing saying he had not been well. To allow the parties an opportunity for consideration of the new papers produced and to give Mr Denson a longer period to comply with the Directions the hearing was adjourned to the 12 th June 1998, same tribunal. A Direction was given to issue a witness summons to Ms T in her capacity as Company Secretary of Deka Gifts Ltd to produce the documents itemised. She applied to have the summons once issued Set Aside, this was refused as was her subsequent application for leave to appeal against that refusal. She did not file the documents referred to in connection with her application or subsequently. She did not attend the hearing nor did Mr Denson. On the morning of the hearing a telephone call was received on Mr Denson’s behalf requesting a Postponement as he was unwell, a migraine attack, and the doctor awaited. The Chair refused the postponement. In the presence of the Presenting Officer and Mrs S, the tribunal raised the issue of Mr Denson’s absence and considered whether or not the hearing should be adjourned. Mrs S indicated that she had seen Mr Denson the day before and he seemed well, he had no history of migraine attacks and she said that a friend of his had done a similar thing in the context of a court appearance. She was not surprised by his absence which she regarded as intentional. She pointed out that he had still failed to comply with the Directions and that Ms T had ignored the Witness Summons. The CSO was content to proceed in Mr Denson’s absence. The parties left the room and the tribunal considered the situation and decided to proceed. It noted the history of delay and evasion and the failure of Ms T to attend or to send in the papers she was required to produce. It concluded that the alleged migraine attack was the sort of illness that can be relied on to persuade a doctor to issue a certificate and that the whole scenario was unconvincing. It concluded that there was probably sufficient information available for a proper decision to be reached; if necessary the question of adjournment could be reconsidered in the course of the hearing. In the event no adjournment was found necessary.”
[5]The CSAT added this comment:
“Mr Denson has had the opportunity to account for his financial circumstances but has wilfully declined to do so in order to make the situation as difficult as possible for the CSA and Mrs S in the hope that he can avoid liability to support his children.”
[6]Mr Denson appealed. His appeal was dismissed by Mr Commissioner H Levenson in a written determination dated 29 July 1999. Mr Denson applied to the Court of Appeal for permission to appeal. That application was heard and dismissed on 27 June 2000 by Simon Brown and Mummery LJJ. Giving judgment Simon Brown LJ set out the history of the matter, with a lucidity I could not hope to match, in passages which I do not propose to quote but which should be read by anyone who may hereafter have to consider the matter yet again.[7]Having indicated in para [16] of his judgment his entire sympathy with the CSAT’s conclusion,

the Lord Justice continued in para [17]:

“I may add that such limited interchange as the court had with Mr Denson today reinforced me in that view. This Tribunal were perfectly entitled to say that enough was enough. The interests of others besides this applicant were at stake. The applicant could in those circumstances properly be adjudged to be a scheming parent playing the system.”
[8]Despite his comprehensive defeat before both the Commissioner and the Court of Appeal Mr Denson has never accepted the CSAT’s decision. The consequence is that very substantial arrears have accumulated. According to the CSA, relying in part on the CSAT’s decision, the arrears as at the date of the hearing before me on 31 January 2002 amounted to £30,455. This was after taking into account payments amounting in all to £3,690 which the CSA acknowledged had been made by Mr Denson. Mr Denson’s view was that his total liability came to no more than £7,174 of which, he said, he had paid off £6,074. I pointed out to Mr Grief (this was on the morning of the hearing) that on his own case Mr Denson accordingly owed £1,100, which hardly accorded with his claim to be a dutiful father paying what was properly due. Mr Denson’s response is to be noted. I was told after the short adjournment that he had tendered to the CSA the sum of £1,100 in cash.[9]The matter had in fact first been listed before me on 15 November 2001. On that occasion, and despite the strong opposition of the CSA, I granted Mr Denson’s application for the adjournment of the judicial review proceedings so as to await the outcome of further proceedings then fixed for hearing in the CSAT. I did so because it was said on Mr Denson’s behalf that the outcome of the proceedings before the CSAT (which unlike this court can review the case on the merits) might have some bearing on the matters I had to decide.[10]The hearing before the CSAT began on 18 December 2001 and was adjourned part heard to 25 January 2002. In a written decision dated 28 January 2002 and issued to the parties the next day the CSAT determined that with effect from 15 January 2001 the weekly amount payable by Mr Denson should be increased from £135.59 to £145.94.[11]Before me Mr Denson seeks to challenge two decisions of the CSA (strictly speaking they are decisions of the Secretary of State for Work and Pensions but the reality is that they are decisions of the CSA and it is convenient to refer to them as such): i) A decision dated either 20 November 2000 or 16 January 2001 (the precise date is immaterial) to apply for a liability order under section 33(2) of the Act. ii) A decision dated 10 May 2001 (and confirmed on 18 May 2001) refusing to review, in accordance with regulations 32A-32B of the Child Support Departure Direction and Consequential Amendments Regulations 1996 , SI 1996/2907, the CSAT’s decision on 12 June 1998. I propose to deal first with the second of these two decisions.[12]It is not open to Mr Denson to challenge the second of these two decisions in this court. The very issue which he wishes to argue in front of me is, as Mr Grief acknowledges, precisely the same as one of the issues which was in contention between the parties at the hearing before the CSAT on 18 December 2001. (It was in fact the issue arising in relation to what the CSAT referred to in its written reasons as “the Second Decision”.) It was agreed between the parties, and the CSAT agreed, that the CSAT had jurisdiction to deal with the matter: see p 4 of its written reasons. The matter was argued out before the CSAT: see p 4 of its written reasons. The CSAT came to a considered decision on the point: see p 5 of the written reasons.[13]As it happens the CSAT decided the point in favour of the CSA and adversely to Mr Denson. But that is really by the way. The consequence would have been precisely the same if the boot had been on the other foot and it had been the CSA trying to re-litigate the point before me.[14]The simple fact is that, subject to appeal (and there is no appeal from the CSAT to this court), the decision of the CSAT on this point gives rise to an issue estoppel as between Mr Denson and the CSA: see paras [35]-[38] of my recent judgment in R (Nahar) v The Social Security Commissioners [2001] EWHC Admin 1049 . It was simply an abuse of the process for Mr Denson to seek to litigate in front of me on 31 January 2002 the very same point decided against him as recently as 18 December 2001 by a court of competent jurisdiction – the CSAT – in proceedings to which both he and the CSA were parties. As I explained in Nahar it makes no difference for this purpose that the CSAT is an inferior tribunal. The principles of estoppel per rem judicatam are precisely the same.[15]The abuse of the process in the present case, I might add, is made all the worse by two features of the litigation, which I have already mentioned. In the first place it was Mr Denson himself who, against the opposition of the CSA, obtained an adjournment of these proceedings on 15 November 2001 precisely so that he could first litigate in the CSAT. Furthermore he expressly agreed in front of the CSAT that it had jurisdiction to decide the very point on which he now seeks my determination.[16]Mr Grief had no answer to the point when I put it to him. There is no answer to it. Not for the first time, Mr Denson is simply trying to play the system, in the hope that he can avoid not merely his legal liability but what might be thought to be his moral and parental obligation to support his children.[17]In the circumstances I say no more about this part of Mr Denson’s case save to observe that nothing I have been shown, and none of such arguments as I have heard on the point, lead me to believe that there is the slightest merit in the point. The CSAT in its written reasons said that it “had no hesitation” in finding against Mr Denson. I am not surprised.[18]I turn to the other issue. Mr Grief on behalf of Mr Denson puts his case in three different ways. He submits that the decision to apply for a liability order(i) was incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms and therefore unlawful under section 6(1) of the Human Rights Act 1998,(ii) was unlawful and involved an improper exercise of discretion under section 33(1)(b) of the Act, and(iii) was ‘ Wednesbury ’ unreasonable.[19]The first of these assertions is a matter of some importance. For this is, as I understand it, the first occasion since the coming into force of the Human Rights Act 1998 when the CSA has been challenged in a domestic court on the grounds that it has breached the Convention.[20]There have, of course, been a number of such challenges before the European Commission of Human Rights and the European Court of Human Rights: see Re admissibility of Application No 24875/94 by Logan v United Kingdom (1996) 22 EHRR CD 178 (ECHR), Re admissibility of Application No 27558/95 by Burrows v United Kingdom (ECHR, 27 November 1996) and Re admissibility of Application No 40432/98 by Stacey v United Kingdom (EctHR, 19 January 1999). All have been rejected as manifestly ill-founded.[21]There have also been domestic cases on non-Convention points. I was referred to Department of Social Security v Butler [1995] 1 WLR 1528, Secretary of State for Social Security v Shotton [1996] 2 FLR 241 and Huxley v Child Support Officer [2000] 1 FLR 898 . Of these I need here refer only to the last, for it contains, at pp 905G and 908B, these most valuable and illuminating observations by Hale LJ:
“It is important to bear in mind that the child support scheme is not simply a method for the State to recoup part of its benefit expenditure from the absent parent. It is a replacement both for the former method of doing this and for the courts’ powers to make orders between individuals for periodical payments for the maintenance of children. The person with care may or may not be on benefit and may move between the two. The calculation may differ in such cases but the formula does not … The child support system has elements of private and public law but fundamentally it is a nationalised system for assessing and enforcing an obligation which each parent owes primarily to the child. It replaces the powers of the courts, which can no longer make orders for periodical payments for children save in very limited circumstances. Unless she can secure a voluntary agreement at least as high as that which the CSA would assess, the [parent with care] is expected to look to the Agency to assess her child support according to the formula, whether or not she is on benefit. The fact that it does her no direct good if she is on means-tested benefits, and that much CSA activity so far has been in relation to parents on benefit, does not alter the fundamental characteristics of the scheme.”
[22]Mr Grief disavowed any suggestion that the scheme created by the Act of itself gives rise to any breach of the Convention. Likewise he disavowed any suggestion that the CSA’s general administration of the scheme of itself gives rise to any breach of the Convention. He was wise to do so. It is quite clear in my judgment that – putting the matter generally – both the statutory scheme and the CSA’s administration of it are Convention compliant. The Commission and the Court thus far have declared all challenges manifestly ill-founded. But the matter does not end there. The Strasbourg jurisprudence is perfectly clear.[23]In Logan one of the applicant’s complaints was that the level of maintenance payments had been assessed at such a high rate that he could only afford to visit his children once a month instead of once a fortnight, as he was entitled to do. He complained that this impeded the development of his relationship with his children contrary to Article 8 of the Convention. The United Kingdom denied that there had been any interference in the applicant’s family life. It emphasised that the CSA is intended to protect family life, maintenance payments being intended to provide for children’s basic living costs, which are the responsibility of both parents and should come before the provision of less essential items of expenditure. It further argued that, even assuming an interference with the applicant’s rights under Article 8, such interference would be justified and proportionate. There is, it argued, a pressing social need to ensure that parents fulfil their responsibilities to their children. The CSA, it said, strikes a fair and reasonable balance between the absent parent’s responsibilities for his or her children and the need for a system that produces fair and consistent results, preserves the parents’ incentive to work and reduces the dependency of parents with care on income support, providing consequent savings to tax-payers.[24]Finding the application manifestly ill-founded the Commission said this at p 181:
“The Commission notes that the relevant legislation, insofar as it seeks to regulate the assessment of maintenance payments from absent parents, does not by its very nature affect family life. Nor, in the light of the factual information supplied by the applicant regarding his income and expenses, including the cost of visiting his children every fortnight, does the Commission consider that the applicant has shown that the effect of the operation of the legislation in his case is of such a nature and degree as to disclose any lack of respect for his rights under Article 8. In the circumstances, the Commission does not therefore find it necessary to go on to consider whether, had there been an interference, it would have been justified within the meaning of Article 8-2 of the Convention.”
[25]In Burrows the effect of the relevant assessment was to require the applicant to pay some 20% of his gross income in maintenance. He complained under Article 8 that by placing an extortionate demand on him to pay an inflated maintenance bill and then making an arbitrary increase in the assessment, the Government failed to show respect for his family. He claimed that the increased level of payments affected his ability to support his children and himself, that the high payments led directly to the break-up of his second family and that he could no longer afford access to his third child, who lived two hundred miles away. He also complained of a breach of Article 1 of Protocol 1.[26]Rejecting the complaint under Article 8 as manifestly ill-founded the Commission said:
“The Commission recalls its recent decision in [ Logan ] where it held that the relevant Child Support legislation does not by its very nature affect family life. Further, it recalls that the applicant’s complaints must be considered in the context of the financial obligations that are acknowledged to exist between the applicant and his children.”
[27]In view of the active role played by the State in assessing and collecting child maintenance under the Act the Commission was prepared to assume that there was an interference in the applicant’s peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol 1. However the Commission rejected the claim under Article 1 as also manifestly ill-founded. In explaining why the Commission said this:
“In that regard, the Commission recalls that the legislation about which the applicant complains is a practical expression of a policy relating to the economic responsibilities of parents who do not have custody of their children. Essentially it relates to the payment by an absent parent to the parent with care of the child[ren] for the purposes of their maintenance. The relevant legislation compels an absent parent to pay money to the parent with custody of the child. The Commission observes that in all Contracting States to the Convention, the legislation governing private law relations between individuals includes rules which determine the effects of these legal relations with respect to property, and in some cases, compel a person to surrender a possession to another. Examples include the division of inherited property, the division of matrimonial estates, and in particular the seizure and sale of property in the course of execution. This type of rule, which is essential in any liberal society, cannot in principle be considered contrary to Article 1 of Protocol No 1. However, the Commission must nevertheless make sure, that in determining the effect on property of legal relations between individuals, the law does not create such inequality that one person could be arbitrarily deprived of property in favour of another.”
[28]The Commission continued:
“As regards whether the relevant measures are in the public interest, the Commission notes that while one specific aim of the measures is to make absent parents, who are able to do so, pay for the maintenance requirements of their children, the measures are not intended solely for the benefit of the children but for the benefit of the tax-payer in general who bears the burden of paying for single parents who claim social welfare benefits. In many cases therefore, while the children are no better off since social welfare benefits are removed and replaced with payments by the absent parent, the burden on the tax-payer in general is reduced. The Commission considers that the aims of reducing taxation and increasing parental responsibility must be considered as in the public interest for the purposes of Article 1 of Protocol No 1. The Commission further recalls that, while a Contracting State enjoys a certain margin of appreciation as regards interference with the peaceful enjoyment of possession in the public interest, it must respect a reasonable relationship of proportionality between the means employed and the legitimate aim. In view of the fact that the applicant is not required to pay a disproportionate percentage of his gross income in maintenance payments, approximately 20%, and taking into account the disposable income that he is left with, the Commission considers that the United Kingdom has not acted disproportionately in pursuing the legitimate aims referred to above. In the circumstances the Commission does not consider the relevant measures to be disproportionate to the legitimate aim they pursue and considers that a fair balance has been struck between the interests of the community as a whole and those of the individual.”
[29]In Stacey the Court had to consider a complaint that the obligation to supply information to the CSA infringed Article 8. Rejecting the complaint as manifestly ill-founded the Court observed that:
“any interference was “in accordance with the law” or “prescribed by law” in the United Kingdom, the measures concerned deriving from the Child Support Act 1991 and the regulations implemented thereunder. The measures, which seek to provide for financial support for children from absent parents, may also be considered as pursuing the legitimate aims of safeguarding the economic well-being of the country under Article 8 § 2 and the protection of the rights of others, including in particular the rights of the child, under Articles 8 § 2 and 10 § 2.”
[30]The Court said that it was:
“satisfied that a fair balance has been struck between the interests of individuals, namely, provision of a mechanism to avoid harmful disclosures, and the interests of the general community that the State recover child support maintenance from absent parents to reduce the burden on the tax-payer of single parent families. It finds accordingly that the requirement imposed on the applicant to provide information relevant to the enforcement of the financial obligations of absent parents arising in connection with their children is not disproportionate and may be regarded as necessary in a democratic society for the legitimate aims referred to above.”
[31]If I may respectfully say so, the approach adopted in these cases by the Commission and the Court is, in my judgment, manifestly correct. As the Commission put it in Burrows , it is in the public interest to have a scheme which aims to reduce taxation and increase parental responsibility. As the Court said in Stacey , it is in the interests of the general community that the State should be able, by recovering maintenance from absent parents, to reduce the burden on the tax-payer of single parent families. The statutory scheme manifestly pursues a legitimate aim, whether one has regard to Article 8 or to Article 1 of Protocol 1.[32]I also entirely agree with the way in which, as I have summarised it in paragraph [23] above, the United Kingdom put the matter in argument in Logan . There is, in my judgment, a pressing social need to ensure that parents fulfil their responsibilities to their children. The statutory scheme, and the CSA’s administration of it, strike a fair and reasonable balance between, on the one hand, the absent parent’s responsibilities for his or her children and, on the other hand, the need for a system that(i) produces fair and consistent results,(ii) preserves the parents’ incentive to work,(iii) reduces the dependency of parents with care on income support and(iv) provides consequent savings to tax-payers. In other words the statutory scheme achieves a reasonable relationship of proportionality between the legitimate aims of the legislation and the means employed.[33]Mr Grief’s attack proceeds on a comparatively narrow front. In the first place the only aspect of the CSA’s activities which he challenges is its decision to apply for a liability order. I must explain briefly what a liability order is, what it does and what it does not do.[34]Liability orders are provided for by sections 33 and 34 of the Act. A liability order does not of itself have any specific legal effect. It is merely a necessary pre-requisite to other modes of enforcement where a deduction from earnings order (for which provision is made in section 31 of the Act) either has proved or is likely to prove ineffective: see section 33(1)(b). A liability order is made by the magistrates’ court: section 33(2). The magistrates’ court has only limited power to refuse to make a liability[35]Secondly, although Mr Grief argues that the CSA’s decision to apply for a liability order engaged and breached Mr Denson’s rights under both Article 8 and Article 1 of Protocol 1, he does not assert that the CSA’s decision impacted upon Mr Denson’s family relationships with anyone else. Thus the present case does not engage that aspect of Article 8 which the Court had in mind when in Niemietz v Germany (1992) 16 EHRR 97 at p 111 (para [29]) it said that:
“Respect for family life must also comprise to a certain degree the right to establish and develop relationships with other human beings.”
[36]In particular the present case does not engage the kind of issues which arose in Burrows (where it will be remembered one of the complaints was that the CSA’s assessment of the maintenance payable to the children of the first marriage led to the break-up of the applicant’s second family) and in the later case of Re admissibility of Application No 32247/96 by Evers v Germany (ECtHR 12 January 1999). The Court accepted in Evers that the applicant’s maintenance obligations towards his divorced wife and the two children born of his first marriage, and their effects on the organisation of his new family life, affected de facto his new family life; the case thus fell within the ambit of Article 8. That, however, is not how Mr Denson puts his case.[37]These preliminary matters out of the way I turn to consider how Mr Grief puts the case on behalf of Mr Denson. I deal first with the case he puts forward under Article 8.[38]Rather than aspects of “family life” it is two aspects of Mr Denson’s “private life” in particular that Mr Grief prays in aid. First he points to Botta v Italy (1998) 26 EHRR 241 at p 257 (para [32]) where the Court said that:
“Private life, in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.”
[39]Secondly he points to Stewart-Brady v United Kingdom (1997) 24 EHRR CD 38 at p 41 as showing the recognition by the Commission that the notion of “private life” includes a person’s reputation.[40]Put very shortly Mr Grief says that the decision to apply for a liability order adversely affected Mr Denson’s state of mind, his mental and psychological equilibrium and, potentially, his reputation. Thus, says Mr Grief, Article 8 was engaged. Moreover, he says, Article 8 was breached because, although the interference was “in accordance with the law” and pursued legitimate aims under Article 8(2), it was disproportionate and thus not “necessary in a democratic society”.[41]In this connection Mr Grief also prays in aid another well-established aspect of Article 8 jurisprudence, namely the principle that, although Article 8 contains no explicit procedural requirements, the decision-making process leading to measures which interfere with the enjoyment of private or family life must be fair: see, amongst many other examples, the decisions of the Court in W v United Kingdom (1987) 10 EHRR 29 at p 49 (para [62]), McMichael v United Kingdom (1995) 20 EHRR 205 at p 239 (para [87]) and Buckley v United Kingdom (1996) 23 EHRR 101 at p 130 (para [76]). Moreover, as is made clear in McMichael at p 240 (para [91]), this principle applies to administrative procedures as well as to judicial proceedings.[42]With all respect to Mr Grief I have to say that this argument is wholly without merit. Bearing in mind the limited nature and effect of such an order I simply do not understand how a liability order engages Article 8 at all, whether the focus of consideration is the decision to apply for a liability order, the communication of that decision to the absent parent, the making of the appropriate application to the magistrates’ court, the pursuit of the proceedings in the magistrates’ court until the order is made, or the making of the order itself. None of those steps, as it seems to me, can in any sensible way be said to impinge upon Mr Denson’s “private life” as that expression is used in Article 8. Specifically I do not see how they can be said to impact in any relevant way upon Mr Denson’s state of mind or psychological equilibrium, or any other aspect of the “psychological integrity” referred to in Botta , or upon his reputation.[43]It is, I think, important to recognise the implications and ramifications of Mr Grief’s arguments. Is it to be said that Article 8 is engaged every time some public body communicates with a citizen conveying to him the no doubt unwelcome (and often, no doubt, alarming) news that it has decided to take some formal step which is the precursor to some active and potentially unpleasant means of enforcement? One thinks, to take a number of fairly obvious examples at random, of the various enforcement powers, and steps preliminary to the taking of enforcement powers, which are regularly utilised by such public authorities as the Inland Revenue, Her Majesty’s Customs & Excise, local authorities, planning authorities and even the public utilities.[44]Now it may be that there are cases where, because of the particular subject-matter or because of special facts known to the authority, the person with whom a public authority is dealing falls within such a peculiarly vulnerable category as in some way to engage Article 8. I am prepared for present purposes, though I emphasise without deciding the point, to assume that there may be such cases. But even if there are it cannot possibly avail Mr Denson. The activities of the CSA, I am satisfied, plainly do not as such fall within any such exceptional category. Moreover, despite my invitation to him to provide such material, Mr Denson was wholly unable to demonstrate that he had at any time which is remotely relevant for this purpose brought to the attention of the CSA anything which could even have begun to suggest that he was peculiarly vulnerable.[45]Accordingly I accept Mr Sheldon’s fundamental proposition that the process of obtaining a liability order simply does not engage Article 8 at all.[46]In any event, and even if it does, I accept without hesitation Mr Sheldon’s alternative submission that any interference with Mr Denson’s Article 8 rights was both justified and proportionate. Strasbourg jurisprudence to which I have already referred demonstrates, as I have said, that the maintenance regime under the Act serves a legitimate purpose and that the statutory scheme achieves a reasonable relationship of proportionality between the legitimate aims of the legislation and the means employed. I need not repeat what I have said in paragraphs [22]-[32] above.[47]In my judgment a liability order is for the following reasons, as Mr Sheldon submits, a “necessary”, reasonable and “proportionate” part of the overall statutory scheme: i) it comes into play only when a deduction from earnings order either has proved or is likely to prove ineffective: see section 33(1)(b); ii) in such cases it serves as a ‘gateway’ to those various enforcement mechanisms without recourse to which the overall objectives of the statutory scheme are, ex hypothesi, likely to be frustrated; iii) it is only a ‘gateway’, and thus in fact affects neither the absent parent’s income nor his credit status; iv) in any event it cannot be unreasonable or disproportionate to have some effective machinery for recovering a debt which is properly owing and has not been satisfied by the absent parent.[48]I emphasise this last point because I should not like it to be thought that I am casting the slightest doubt on the efficacy of “designation” or suggesting that the system of “designation” in accordance with section 33(5) of the Act is anything other than fully Convention compliant. It may be (I express no opinion on the point) that “designation” does, even though as I have held the making of a liability order does not, engage Article 8. Even if it engages Article 8, the process of designation, in my judgment, quite plainly passes muster under Article 8(2). To hold otherwise would be to make a mockery of the entire statutory scheme and to enable those, like Mr Denson, who want to play the system for all it is worth, to frustrate what the Strasbourg jurisprudence recognises to be the legitimate aims of a statutory scheme which achieves a reasonable relationship of proportionality between the legitimate aims of the legislation and the means employed to that end.[49]In the final analysis this vast edifice of ingenious argument erected by Mr Grief on Mr Denson’s behalf really comes down, as Mr Grief’s skeleton argument makes clear, to Mr Denson’s complaint that a liability order is neither “necessary” nor “proportionate” because it might lead to him being deprived of what he calls “a very considerable proportion of his net income”. This argument, which in some measure involves little more than an attempt to re-open in this court matters concluded against Mr Denson by the decisions of the CSAT in June 1998 and January 2002 and of the Court of Appeal in June 2000, is wholly devoid of any factual merit. It is also devoid of any legal merit. It is, in my judgment, as manifestly ill-founded as were the corresponding arguments of the applicants in Logan and Burrows .[50]Mr Grief, taking what I might call the McMichael point, also asserts that what he calls “the decision-making process culminating in the application for a liability order” was unfair in two respects.[51]First, he says, it was unfair because the CSAT decision in June 1998 was itself unfair. This, in my judgment, is a wholly impermissible attempt to ventilate, in a court which is in any event an inappropriate forum for investigating matters consigned to the Commissioner and the Court of Appeal, allegations which are in fact wholly devoid of substance. The fairness of the CSAT’s decision was, as Mr Sheldon correctly points out, something expressly considered by Mr Commissioner H Levenson in para [15] of his written determination:
“The tribunal acted lawfully and reasonably and there was no breach of the rules of natural justice or of the requirements of fair procedure.”
Simon Brown LJ in the Court of Appeal said at para [19] of his judgment that it was not even arguable that the Commissioner had erred in coming to this conclusion. With respect I entirely agree. There was nothing “unfair” in what the CSAT did, whether one judges the matter by reference to common sense standards of fairness, by reference to the principles of natural justice and fair procedure, or by reference to the requirements of Article 8. Mr Denson has been, throughout, entirely the author of such misfortune as he may have suffered.[52]Secondly, Mr Grief asserts that certain disclosures made to the CSA in March 2001 sufficiently demonstrated the erroneous basis upon which it was pursuing its application for a liability order as to make it unfair for the CSA to continue with its application. I reject that argument which seems to me as devoid of factual as it is of legal merit. Mr Grief has wholly failed to show that the material he relies upon demonstrates that which Mr Denson wishes to assert. In fact, as Mr Sheldon pointed out, notwithstanding everything put forward by Mr Denson, the CSAT in January 2002, as we have seen, actually increased the amount of his weekly payments. In any event, even if there was some merit, which so far as I can see there plainly is not, in the factual premise underlying this submission, I do not see how it could avail Mr Denson in this court. The issue is one to be ventilated in the appropriate way in accordance with the mechanisms laid down in the Act – including, where appropriate, appeal to the CSAT and the Commissioner. I fail to see how it could give rise to any complaint which sufficiently engages Article 8 as to justify proceedings in this court.[53]To conclude: Mr Grief has said nothing which even begins to support the proposition that the statutory regime, so far as it relates to either liability orders or their designation, is anything other than fully compliant with Article 8. In my judgment neither that part of the statutory scheme nor its application to Mr Denson in the particular circumstances of this case in any way contravenes Article 8.[54]Mr Grief in the alternative puts his case on the basis that there has been a breach of Article 1 of Protocol 1. He submits that the application for a liability order interfered with the exercise by Mr Denson of his right to peaceful enjoyment of his possessions.[55]In support of this submission Mr Grief relies upon four well recognised principles of Strasbourg jurisprudence: i) Any interference with a person’s possessions must strike “a fair balance” between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights; there must, as always, be a reasonable relationship of proportionality between the means employed and the aims pursued: The National & Provincial Building Society v United Kingdom (1997) 25 EHRR 127 at p 171 (para [80]). This principle, as we have already seen, was considered and applied by the Commission in the specific context of the CSA in Burrows . ii) The notion of “interference” is not confined to situations where decisions or orders have been enforced against an individual. Measures which leave intact the owner’s right to use his possessions may nonetheless engage Article 1 if they render his rights precarious and defeasible: Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35 at p 50 (para [60]). iii) The law must not “create such inequality that one person could be arbitrarily deprived of property in favour of another”: Burrows . iv) Although Article 1 contains no explicit procedural requirements, any interference with the peaceful enjoyment of possessions must be attended by appropriate procedural safeguards against arbitrariness; the availability of such safeguards is an important factor in the assessment of proportionality: AGOSI v United Kingdom (1987) 9 EHRR 1 at p 14 (para [55]), Hentrich v France (1994) 18 EHRR 440 at p 470 (para [45]).[56]None of this is in any way controversial. It does not, however, assist Mr Denson in the slightest. I agree with Mr Sheldon’s succinct submission that Article 1 of Protocol 1 adds nothing to the analysis.[57]Mr Grief submits that in the present case the application for a liability order does not represent a fair balance between the competing interests since there is, as he would have it, no reasonable relationship of proportionality between the means employed and the aims pursued. I entirely disagree. The submission is completely inconsistent not merely with the general Strasbourg jurisprudence on Article 1 but also with the Strasbourg jurisprudence on the subject of the CSA to be found in Burrows . The submission is devoid of merit. For very much the same reasons as lead me to reject the argument insofar as it is founded on Article 8 (and I do not propose to repeat them) the argument likewise fails insofar as it is founded on Article 1.[58]I should, however, add just two comments. The first arises in relation to Evers , where there was, in addition to the complaint under Article 8, a complaint under Article 1 of Protocol 1. Holding the complaint manifestly ill-founded the Court said this:
“Furthermore, the Court is of the opinion that in all the States Parties to the Convention, legislation governing private law relations between individuals includes rules which determine the effects of these legal relations with respect to property and, under certain conditions, compel a person to surrender a possession to another or impose financial obligations towards a third person. This type of rule cannot be considered contrary to Article 1 of Protocol No 1, unless there is arbitrariness.”
If, as both Burrows and Evers indicate, arbitrariness is the essence of the vice in this type of situation, Mr Denson’s claim must surely fail. There is nothing remotely arbitrary in what the CSA has done. Quite the contrary.[59]The other arises out of the nature of a liability order. It is, as I have already observed, merely a ‘gateway’. It does not therefore, in my judgment, engage Article 1 of Protocol 1 at all. Mr Grief’s reliance upon Sporrong and Lonnroth is, with all respect to him, misplaced. Much more to the point is the decision of the Commission in Re admissibility of Application No 9889/82 by X v France (1982) 5 EHRR 298 where the Commission dismissed as manifestly ill-founded a complaint that the registration of a mortgage at the request of tax authorities constituted a breach of Article 1:
“The Commission is of the opinion that the registration of the mortgage in question could not be described as a deprivation of property, in the meaning of the first paragraph of the provision. Insofar as it might be considered as an interference with the right of everyone to the peaceful enjoyment of his possessions, in the meaning of the first phrase of the same paragraph, the Commission considers that this registration of a mortgage is a measure authorised by the second paragraph of Article 1, since it was clearly designed ‘to secure the payment of taxes or other contributions or penalties’. The interim registration had the object of securing the payment of evaded taxes or of fines which the applicant might eventually be ordered to pay to the administration at the end of the proceedings started against him and which were currently in progress. Moreover, there is nothing in the file which allows one to consider that the application of this measure in the present case was at all disproportionate to the object to be achieved.”
[60]I conclude therefore that Mr Denson’s attack on the CSA fails insofar as it is founded on the Convention. To recapitulate: Mr Grief has said nothing which even begins to support the proposition that the statutory regime, so far as it relates to either liability orders or their designation, is anything other than fully compliant with both Article 8 and Article 1 of Protocol 1. In my judgment neither that part of the statutory scheme nor its application to Mr Denson in the particular circumstances of this case in any way contravenes either Article 8 or Article 1.[61]I turn finally to those parts of Mr Grief’s submissions which are founded on what might be called the ordinary or traditional principles of administrative law. He submits that the decision to apply for a liability order(i) was unlawful and involved an improper exercise of discretion under section 33(1)(b) of the Act, and(ii) was ‘ Wednesbury ’ unreasonable. I do not agree. Both arguments are utterly devoid of substance.[62]Put shortly the argument in relation to the first of these points proceeds as follows: i) The CSA erred in law, and exercised its discretion improperly, in failing to have regard to a relevant consideration, namely the reasons for the ineffectiveness of the deduction from earnings order which had earlier been imposed on Mr Denson. ii) If it had addressed itself to the reasons the CSA would have appreciated that the deduction from earnings order had proved ineffective only because it was based on an erroneous appraisal of Mr Denson’s financial circumstances, not because of any unwillingness on his part to pay. In this connection Mr Grief suggests that a payment (the word used in section 33(1)(b)(ii) of the Act) is not payable unless it is properly due, which presupposes that the amounts in question have been properly calculated on the basis of accurate information.[63]It will be appreciated that, put this way, the argument is nothing more than yet another wholly impermissible attempt to challenge in a wholly inappropriate forum the decisions of the CSAT in June 1998 and the Court of Appeal in June 2000.[64]Be that as it may, the argument is in any event, in my judgment, wholly lacking in substance. There was no error of law, no misdirection and no erroneous exercise of discretion. I can summarise my reasons as follows: i) The argument proceeds on a misinterpretation of section 33(1)(b) of the Act. The statute does not require the CSA (or, to be more precise, the Secretary of State) to consider why the deduction from earnings order has proved ineffective. All that section 33(1)(b)(ii) requires is that it should appear to the Secretary of State that the deduction from earnings order “has proved ineffective as a means of securing that payments are made”. The statute in other words directs attention solely to the what and not to the why . ii) That there had in fact been non-payment – in other words that the deduction from earnings order had indeed “proved ineffective” – could not possibly be gainsaid. iii) There is, moreover, nothing to suggest that consideration was not in fact given to the reasons why the order had proved ineffective. The CSA was well aware of Mr Denson’s complaints, including his contention that the underlying assessments had been improperly made. In the light of the Court of Appeal’s decision the CSA was fully entitled to reject those arguments as groundless.[65]The ‘ Wednesbury ’ argument is equally lacking in merit. Insofar as this adds anything to the previous argument (and, yet again, much of the argument is founded on Mr Denson’s complaints about the decision of the CSAT in June 1998) it comes to this: i) It is irrational for the CSA to obtain a liability order(a) if there is no prospect of the CSA obtaining any payments under it and accordingly(b) in circumstances where the only effect will be to prejudice the defaulting parent’s credit status. ii) Mr Denson in fact has no assets (so it is said) other than an F-registration car and a 30 year old caravan.[66]The argument, with all respect to Mr Grief, is absurd. I can see absolutely nothing irrational in the view that a gradual if determined movement towards more drastic measures might well produce further payments. After all, and as I have already recorded, a comparatively mild comment from the Bench almost immediately produced a further payment of no less than £1,100. Nor, as matters stand today, can one ignore the CSAT’s findings against Mr Denson both in June 1998 and in January 2002. I do not accept for a moment, any more than does the CSA, that the car and caravan are Mr Denson’s only assets.[67]Mr Denson, as Simon Brown LJ observed, is simply a scheming parent playing the system. Far from it being irrational to threaten such a litigant with the prospect of stringent enforcement procedures it is a little difficult to see what else the CSA could reasonably be expected to do. Far from the CSA exposing itself to criticism for resorting to a liability order it might more appropriately be exposed to criticism if it had not.[68]Mr Denson’s complaints against the CSA are groundless. He has failed to produce anything which even begins to show that the CSA has acted otherwise than entirely fairly, properly and appropriately throughout. His criticisms of the CSA are misplaced. This application must be dismissed.[69]It is time for Mr Denson to stop playing the system. He should measure up to his responsibilities as a parent. He should meet his liabilities to the CSA. If he does not he will no doubt find the CSA compelled to resort to ever more unpleasant enforcement measures. *************** MR JUSTICE MUNBY : These were judicial review proceedings in which Mr Denson, an absent father, sought to challenge decisions of the Child Support Agency, in large measure in reliance upon the provisions of the Human Rights Act and the European Convention. For the reasons set out in a judgment, a draft of which has already been sent to the parties, and copies of which will be available in a moment for anybody who wants them, I have concluded that Mr Denson's challenge fails in all respects. That in all material respects, the Child Support Act 1991 is Convention compliant and, accordingly, in those circumstances, I propose to dismiss this application. MR SHELDON : My Lord, thank you for your judgment. The defendant would like costs in this case against Mr Denson on the normal basis? MR JUSTICE MUNBY : Yes. Yes, Mr Grief? MR GRIEF : My Lord, my instructions are, so far as I can, to resist that application for costs and to ask that the defendant bear its own costs. I have two submissions on this point, my Lord. The first is that the point at issue in the proceedings was of some importance, as your Lordship yourself recognised, being the first time that the Agency had been challenged in an English court on the basis of the Convention, prior to the entry of course of the Human Rights Act. My Lord, the importance of that point I think was reflected in the generous time allowance that your Lordship gave me to articulate my submissions in January and in your decision to reserve judgment. So, in short, my Lord, regardless of the rights and wrongs of the claimant, the case, and your Lordship's judgment, has served the important public purpose of confirming that the Act and the Agency, at least in the circumstances of this case, are Convention compliant. My Lord, my second submission is perhaps less attractive, but it is one that I have been asked to make. It remains the claimant's case that he does not have the means to meet his liabilities towards the Agency and, in any event, my Lord, if he is ordered to bear the defendant's costs this will necessarily impact on his ability to meet those liabilities and to fulfil his obligations towards his children. My Lord, I accept that is perhaps a less attractive submission, but it is one that I feel compelled to make. Those are my submissions, my Lord. MR JUSTICE MUNBY : Thank you, Mr Grief. MR SHELDON : My Lord, I have nothing further to add on that. It was a case where we were put to considerable expense and Mr Denson brought the case in the full knowledge that costs could be ordered against him if he failed. MR JUSTICE MUNBY : Yes. Mr Grief, as you are aware, what I said in paragraphs 67 and 68 of my judgment was that Mr Denson, as Simon Brown LJ had occasion to observe on a previous occasion, is simply a scheming parent playing the system. His complaints against the CSA are groundless. He has failed to produce anything which even begins to show that the CSA has acted otherwise than entirely fairly, properly and appropriately throughout. His criticisms of the CSA are misplaced. I also - and this is, as you will appreciate is a reference to your second ground - made it clear in paragraph 66 of my judgment that I did not for a moment accept, any more than the Agency does, that his only assets are the old car and caravan which he claims. Mr Denson might, in the light of those observations, consider himself luckily that the Agency is seeking only costs on the standard basis and not on the indemnity basis. The only conceivable ground for not making an order for costs would be that some public benefit has been served as a result of those proceedings. So it may have been, but it does not lie in this litigant's mouth, as it seems to me, in all the circumstances to take the point. It seems to me, notwithstanding everything you have pressed on his behalf, that this is the plainest possible case for awarding costs as sought by the Agency. MR GRIEF : My Lord, I am also instructed to request your Lordship's permission to appeal to the Court of Appeal on the Convention point? MR JUSTICE MUNBY : Would you be so good as to articulate, first of all, whether the grounds of appeal go to matters of law and, if so, what, or if they go to some other aspect of the case? MR GRIEF : My Lord, the grounds would go to the issue of whether the Convention is engaged, and the issue of the allegedly "gateway-nature" of the liability order, and whether a fair balance has been struck as required by Article 8 and Article 1 of the First Protocol. MR JUSTICE MUNBY : Mr Sheldon? MR SHELDON : My Lord, the Agency seeks to resist that application. It is quite clear from your judgment that these arguments are without merits, and if they are without merits here they should be at any higher court. So I would urge you to refuse this application. MR JUSTICE MUNBY : Yes. MR GRIEF : My Lord, I have nothing further to say. MR JUSTICE MUNBY : I am not prepared to grant Mr Denson permission to appeal. As you will be aware from my judgment, I have come to a very plain view on each of the matters of law that was canvassed before me. I hope I have enough judicial humility to recognise that I may be wrong, but this is a case in which, if you seek to attempt to persuade the Court of Appeal I am wrong, you must persuade them that the matter is one properly to be canvassed before them. MR GRIEF : My Lord, thank you. MR JUSTICE MUNBY : As I have made clear, it is time for Mr Denson to stop playing the system. He should, as I said in paragraph 69 of my judgment, measure up to his responsibilities as a parent. This litigation has being going on for far too long and I am not prepared, myself, to play any part in any further prolongation of it. In the circumstances, unless there are any further submissions from anybody, I propose to dismiss the application, to order the claimant to pay the defendant's costs of the proceedings, and I refuse the claimant permission to appeal. MR GRIEF : My Lord, thank you. MR JUSTICE MUNBY : I am very grateful to both of you for all your help. I will hand back to the associate that part of the papers which stay on the court file. THE ASSOCIATE : My Lord, I have been asked by the reporters to clarify whether there are any reporting restrictions? MR JUSTICE MUNBY : No, there are no reporting restrictions of any sort in this matter. The only element of confidentiality which attaches to the case, as those who read the judgment will see, is that there are two people who have, as it were, a walk-on part in the case, who in my judgment are referred to, in the one case, as "Mrs S" and, in the other case, as "Miss T". Apart from that there are no reporting restrictions, and anybody is at full liberty, if they so wish, to report any part of my judgment in the form in which it is handed down.

order

sections 33(3), (4) and see Secretary of State for Social Security v Shotton [1996] 2 FLR 241. Once a liability order has been made the CSA can proceed down two different enforcement routes:(i) the CSA can without more ado proceed to levy distress under section 35;(ii) if but only if the liability order has been “designated” under section 33(5) it is thereupon treated as a judgment entered in a county court, with the consequence that the CSA can proceed to execution by such means as garnishee proceedings or a charging order (section 36) or, in cases of wilful refusal or culpable neglect, commitment to prison (sections 39A and 40). It is important to note that a liability order does not have the characteristics of a judgment (which, as Mr Sheldon accepts, may affect the credit status of the judgment debtor) unless and until it has been “designated”. Moreover, “designation” is not automatic, nor is recourse to distress. A liability order is thus, as Mr Sheldon submits, merely a ‘gateway’ to further enforcement action at the discretion of the CSA.

Cited in 5 later judgments