“1 The duty to maintain. (1) For the purposes of this Act, each parent of a qualifying child is responsible for maintaining him. (2) For the purposes of this Act, a non-resident parent shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Act. (3) Where a maintenance calculation made under this Act requires the making of periodical payments, it shall be the duty of the non-resident parent with respect to whom the calculation was made to make those payments.”
“33 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 calculation in question. (2) The Secretary of State may apply to a magistrates’ court or, in Scotland, to the sheriff for an order (“a liability order”) against the liable person. (3) Where the Secretary of State applies for a liability order, the magistrates’ court or (as the case may be) sheriff 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 or (as the case may be) the sheriff shall not question the maintenance calculation under which the payments of child support maintenance fell to be made. (5) If the Secretary of State designates a liability order for the purposes of this subsection it shall be treated as a judgment entered in a county court for the purposes ofsection 98 of the Courts Act 2003 (register of judgments and orders etc) (6) Where regulations have been made under section 29(3)(a)— (a) the liable person fails to make a payment (for the purposes of subsection (1)(a) of this section); and (b) a payment is not paid (for the purposes of subsection (3)), unless the payment is made to, or through, the person specified in or by virtue of those regulations for the case of the liable person in question.”
“[The 1991 Act] imposed a responsibility for maintaining a qualifying child on each parent (section 1(1)). It imposed a duty on the absent or non-resident parent to make payment of child maintenance in any periodical sums assessed (section 1(3)). It obliged the Secretary of State, on the application of either parent, to assess the child maintenance payable according to a statutory formula (sections 4, 11). It empowered the Secretary of State to take enforcement action if authorised to do so (sections 4, 6). It gave the Secretary of State significant powers (sections 14, 15, 30, 31, 33, 35, 36, 39A). While the role of the courts was preserved in relation to consensual settlements reached by parents not in receipt of state benefit (section 8), and there can be no doubt of the Secretary of State’s duty to account to the caring parent for sums which he has received from the paying parent, subject to any appropriate deduction of benefit, the Act conferred no right of recovery or enforcement on a caring parent … against an absent or non-resident parent...”
“The following observations may be made on these statutory provisions. (1) The Act of 1991 together with regulations made under it provide a detailed and apparently comprehensive code for the collection of payments due under maintenance assessments and the enforcement of liability orders made on the application of the Secretary of State… (3) Although section 1(3) provides for a duty which arises when the maintenance assessment is made, this duty is not expressed as a civil debt. Mr Crampin accepts that the duty could not be directly enforced by action in any civil court, or by any means other than as provided in the Act.”
“As I have indicated the Secretary of State claims in respect of the statutory right correlative with the obligation expressed in section 1(3) of the Act of 1991. But that obligation and right is not a civil debt in any ordinary sense. First, the obligation may only be enforced by the Secretary of State and not by any other person who may be stated to be the payee in the maintenance assessment. Secondly, the Secretary of State’s powers of enforcement do not enable him to sue for the arrears in the ordinary way. In the first instance his choice lies between a deduction of earnings order directed to the employer or an application to justices for a liability order.”
“As Mr Giffin points out, it will not always be the right course to take the most aggressive approach to enforcement. For example, there may be a risk that enforcement action will cause the breakdown of the relationship between the absent parent who owes the arrears and the CSA. A more consensual approach may be more effective in the longer term. The interests of the children need to be carefully considered. For example, there may be cases where taking enforcement action may harm the relationship between the absent parent and the qualifying children. The duty on the Secretary of State under section 2 of the 1991 Act when exercising any discretion is to have regard to the welfare of any child likely to be affected by his decision. It is a matter for judgment whether, for example, the remedy of commitment to prison should be sought in circumstances where that will deprive the absent parent of his livelihood and may make the payment of arrears of maintenance less likely…”
“The Act confers a discretionary power, not a duty, on the CSA to institute enforcement action. There is no timetable set out within which any such enforcement action must be taken. It goes without saying that the speed and effectiveness of enforcement action depends, in part, on the extent to which resources are available to the agency and to whether those resources are allocated within the agency for the enforcement function. Moreover, enforcement activity in respect of one case may mean less activity in respect of another. No doubt the task of the CSA in dealing with parents who evade payment or who are determined to avoid paying is a difficult one. Aggressive enforcement may not always be the right course of action, given the variety of different family circumstances in which arrears may arise. In many cases there will not necessarily be a simple answer to an enforcement problem. The duty under s.2 of the Act, to take into account the welfare of any child, may also act as a brake on enforcement action.”
“1. Be considered a victim of domestic violence or abuse and 2. Have reported the domestic violence or abuse to an appropriate person and 3. Have informed the CMS of it at the time of making their application and 4. State the appropriate person to whom this has been reported at the time of making the application.”
“The definition of domestic violence and abuse and the list of bodies to which this must have been reported is not laid down in regulations, but is set out in two sets of guidance to which the regulations refer: 1. Guidance on how DMs will determine if a person is a victim of domestic violence or abuse is available at this gov.uk link.”
“Domestic abuse is not always physical violence. It can also include … economic abuse.”
“Chapter 49 - Unlikely to pay Introduction 49001 Where a maintenance calculation has been made, the PWC or CiS may apply to the CMS for 1. the collection of child maintenance payable under the calculation, and 2. the enforcement of the obligation to pay in accordance with the calculation. 49002 A DM [Decision Maker] may only make arrangements for the collection of payments if 1. the NRP agrees to the arrangements, or 2. the DM is satisfied that without the arrangement child support maintenance is unlikely to be paid in accordance with the calculation (referring to s. 4(2A) of the 1991 Act). 49003 Where the PWC or CiS has requested that their case be administered as collect and pay and the NRP does not agree to the arrangements, the DM should carry out an ‘unlikely to pay’ check. Format of the check 49004 The unlikely to pay check decision is made by the DM using their judgement and based on the merits of the individual case. When considering the case DMs need to decide if the NRP is unlikely to make regular payments voluntarily. Basic criteria for carrying out the check 49005 When making a decision as to whether a NRP is deemed unlikely to pay, DMs should consider the following factors 1. The NRP pays via an enforced method – for the majority of cases where a NRP pays via an enforced deduction from earnings order or deduction from earnings request they will be determined as unlikely to pay. 2. The NRP is undergoing legal enforcement action – where a case is undergoing legal action to establish compliance it will usually be appropriate to determine them as unlikely to pay. 3. The NRP has undergone legal enforcement action or paid via an enforced method in the six months prior to requesting direct pay – the NRP will be determined as unlikely to pay unless the DM considers there is a good reason to believe the NRP is not to be deemed as unlikely to pay, e.g. the full clearance of arrears via a voluntary lump sum. 4. The NRP has missed one or more payments in the past six months –DMs must use their discretion to determine whether this constitutes an unlikelihood to pay. Where a payment has been missed DMs must evaluate any available evidence to determine whether or not there was a reasonable explanation for the missed payment. 5. The NRP has demonstrated a pattern of behaviour over the past six months which indicates a potential to be considered unlikely to pay Emphasis added. .Where a NRP has made all the required payments over the past six months they will generally be considered not unlikely to pay. However if from a behaviour pattern there is an indication that they may be unlikely to pay privately, DMs may decide that the NRP is nonetheless unlikely to pay, e.g. when payments are only being made following CMS action being taken.”
“4 Child support maintenance (1) A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the non-resident parent may apply to the Secretary of State for a maintenance calculation to be made under this Act with respect to that child, or any of those children. (2) Where a maintenance calculation has been made in response to an application under this section the Secretary of State may, if the person with care applies to the Secretary of State under this subsection, arrange for— (a) the collection of the child support maintenance payable in accordance with the calculation; (b) the enforcement of the obligation to pay child support maintenance in accordance with the calculation. (2A) The Secretary of State may only make arrangements under subsection (2)(a) if— (a) the non-resident parent agrees to the arrangements, or (b) the Secretary of State is satisfied that without the arrangements child support maintenance is unlikely to be paid in accordance with the calculation. (3) Where an application under subsection (2) for the enforcement of the obligation mentioned in subsection (2)(b) authorises the Secretary of State to take steps to enforce that obligation whenever the Secretary of State considers it necessary to do so, the Secretary of State may act accordingly. (3A) Where a maintenance calculation has been made in response to an application under this section, the Secretary of State may, if the person with care or the non-resident parent applies to the Secretary of State under this subsection, arrange for the collection of the child support maintenance payable inaccordance with the calculation if satisfied on the basis of evidence of a prescribed kind relating to relevant domestic abuse that it is appropriate for such arrangements to be made.”
“The key CMS failures evident from the Claimants’ cases, and the wider evidence including from Gingerbread (the leading single parent charity) & the Child Poverty Action Group (“CPAG”), can be summarised as follows: a. Systemic failings in the Collect & Pay scheme, including significant delays in setting up cases and unlawful refusals to put cases on the scheme despite obvious and lengthy failures to pay (e.g. unlawfully deferring to NRP’s choice and/or failure to exercise discretion altogether), obvious omissions in the ‘Unlikely to Pay’ policy including a lack of effective criteria, and procedural unfairness for the PWC in determining whether the NRP is ‘unlikely to pay’; b. Absence of appropriate policy regarding the treatment of victims of domestic violence in order to avoid or mitigate furtherance of abuse in collection and enforcement, thereby perpetuating further economic, psychological abuse and controlling & coercive behaviour for the women and their children; c. Failures to take, or significant and lengthy delays in taking, action to enforce payment of arrears (including investigatory steps preparatory thereto), with consequences for recoverability (earlier arrears written off, NRP no longer earning by time of enforcement); systemic breach of CMS’s own policies and statements on enforcement action; d. Underuse of Deduction From Earnings Orders (“DEOs”) (omissions and failures to deploy sooner or more frequently and failures to investigate non-compliance); e. Underuse of other Enforcement Measures (including suspending or disqualifying from driving or holding a passport); f. Inadequate monitoring and/or complaints system.”
“5. For the avoidance of doubt, I do not interpret these proceedings as entailing challenges to individual decisions made in individual cases (contrary to the suggestion in the Acknowledgment of Service (“AOS”)); these are relied upon asillustrative of the allegedfailings in policies and practice.”
“The … judge … recognised that (i) the claim should not be treated as a challenge to individual specific decisions in the Claimants’ cases, but one which indicated wider systemic and ongoing failures”
“25. As explained at the outset, contrary to the Defendant’s suggestion, the Claimants do not bring a systems challenge in respect of A1P1. The Defendant’s arguments at [DGD/45-7, 49-50] therefore fall away. As explained above, the individual Claimants are challenging the breaches of their own rights under A1P1 in their individual cases. The Defendant has not taken reasonable steps to protect their A1P1 rights.”
“49. The Claimants and their children have been subject to a catalogue of errors, delays and failures on the part of the Defendant. While they are not challenging any one decision or omission specifically, they are challenging the accretion of those individual decisions and the key patterns of failings which have perpetuated their individual cases and which are broadly consistent across all the Claimants. They are challenging a continuing state of affairs, based on a persistent pattern of unlawful actions and omissions.”
“11… the relationship between separated parents can be emotionally fraught and characterised by anger and mistrust. The CMS frequently has to deal with allegations and counter-allegations about circumstances relevant to child maintenance obligations, as well as parents who deliberately seek to avoid collection and enforcement. 12. … decisions on collection and enforcement are discretionary. This reflects the fact that the CMS often has to balance the competing interests of the NRP and the PWC, and it must always consider the welfare of any affected child. The CMS often deals with child maintenance arrangements in the context of family arrangements where one or both parents have children from relationships with different partners. Collection and enforcement of child maintenance may therefore affect more than one family. The welfare of the child for whose benefit maintenance is being paid must always be taken into account, but so must that of other affected children. 13. … in practice, many of the cases the CMS deals with involve situations where both parents and their families are facing financial hardship. This means that decisions on collection and enforcement may have significant effects on the well-being of families of both PWCs and NRPs. Very low incomes can also result in missed payments, and when arrears build up it can be particularly challenging to recover them, or to do so in a short timescale. Of course, there are some cases where an NRP may have significant financial means and employ complex accounting and financial techniques to attempt to hide the true scale of their wealth from the CMS. But these are a very, very small minority of cases. The parents that make up the CMS’s overall caseload overwhelmingly fall towards the bottom end of the income scale. As I explain further below, 43 percent of NRPs on Collect & Pay arrangements are on universal credit. 46 percent do not pay tax because they earn less than the personal allowance, currently£12,570 per annum, and these parents represent 62 percent of those in arrears. A fundamental problem facing the CMS when it comes to collecting or enforcing against such NRPs is that there is often very little, if any, money to be had. 14. …the CMS has to respond to changing family and financial circumstances. Relationships, childcare arrangements and family make-up can change over time. Many of the parents with whom the CMS deals move regularly in and out of work and between different forms of employment and between work and benefits. Income is often erratic. Compliance with obligations can also be highly variable, depending on the NRP’s own circumstances. 15. …the CMS has to deal fairly with both parents. This may involve, for example, giving parents the opportunity to make representations, to provide evidence, or to comply with arrangements before being subject to enforcement action. Together with the complexity of underlying circumstances, this can mean that decisions take time. It can take time to verify information, parents can refuse to cooperate, or they can delay providing necessary information. Collection and enforcement can also take time because the CMS has to deal with third parties such as employers, banks and the courts, which can all be sources of delay. 16. … the CMS deals with these problems on a large scale. As I explain below, (see §§55-57) in September 2022 around 886,000 children were covered by CMS arrangements. In the financial year 2021/2022 the service cost£365 million to operate. The CMS must ensure not only that the welfare of children, and relevant interests of PWCs and NRPs are properly taken into account, but that taxpayers’ money is spent efficiently and fairly allocated between cases.”
“96. First, the allegation that the PWC is not given an opportunity to make representations before a case is moved to Collect & Pay ignores the fact that in the large majority of cases, the only reason why the decision maker is considering the “unlikely to pay” test in the first place is because the PWC will have specifically requested that the case be moved from Direct Pay to Collect & Pay. In practice, PWCs can and do provide information about the NRP’s behaviour at the time of making that request. Emphasis added. 97. Indeed, the CMS decision maker usually has repeated contact with both the PWC and the NRP throughout the process. The application of the “unlikely to pay” test is not a check-box exercise. What typically occurs is that the PWC contacts the CMS to say that payments have been missed and provides some material to evidence this, such as bank statements from one of their bank accounts; the CMS decision-maker then contacts the NRP to seek their views; the NRP then tells the CMS that payments are being made and provides their own evidence, such as bank statements showing payments to a bank account that is said to belong to the PWC. The CMS decision-maker will then contact the PWC again, to check e.g. whether the bank account in question is theirs, or whether the payments were for something other than child maintenance. Throughout this process of engagement, PWCs provide information about the NRP’s behaviour. Emphasis added. The CMS decision maker then weighs all the information and evidence presented to reach a determination. 98. Second, I am aware that the Claimants allege that withholding of payments can be a form of economic abuse by NRPs. The fact that payments have been withheld is picked up by the CMS and forms a key factor in the determination of whether the NRP should be moved to Collect & Pay. Decision makers can also factor in any domestic abuse background when taking decisions, if it is relevant to the question whether the NRP is unlikely to pay in the future. As set out above, DMG 49005 expressly notes that the list of factors in that paragraph “is not definitive” and that “consideration must be given to all other relevant factors” and the decision as to whether an NRP is unlikely to pay must be “made by the DM using their judgement and based on the merits of the individual case” [DG12/A841]. The CMS has no power under the current legislation, however, to move a case to Collect & Pay solely on the ground that there is a history of domestic abuse Emphasis added . … 100. Fourth, DMG 49008 provides that an NRP must be presumed to be not unlikely to pay unless there is evidence to the contrary. This reflects the fact that moving an NRP onto Collect & Pay can have a detrimental impact on the NRP, because it results in a 20 percent fee in addition the maintenance calculation and it can result in more intrusive collection methods (such as deductions from earnings orders). In these circumstances, it is important that decisions taken to move an NRP onto Collect & Pay without their consent are properly supported by evidence. 101. Fifth, decision-makers are required to inform both parents when a decision has been taken and the reasons for that decision together with any other relevant information: see DMG 49009-49012 [DG12/A841]. There is no formal right of appeal for either party against a decision that a NRP is or is not unlikely to pay but a dissatisfied parent may ask for the decision to be reconsidered and the DMG makes express provision for this: see DMG 49014. If a parent remains dissatisfied, they may raise a complaint, ask for the case to be referred to the independent case examiner or, if the complaint is of maladministration, the Parliamentary and Health Service Ombudsman, or seek judicial review: see DMG 49015.”
“167. It is important to emphasise that, where a case is on Direct Pay, the CMS takes precautions to ensure that PWCs who are victims of domestic abuse are protected. For instance, CMS caseworkers act as intermediaries for the PWC and NRP to facilitate the exchange of bank details and ensure personal information is not shared. There is no need for any direct contact between them: Emphasis added. see DMG 15057 to 15060 … 168. CMS caseworkers will also help PWCs set up bank accounts with non-geographic sort codes. These are sort codes that cannot be traced, so that the PWC can still receive payments directly from the NRP while keeping their location hidden. Emphasis added. 169. I have described above how the DMG directs CMS decision makers to take account of all the circumstances of the case and use their judgment when determining whether the NRP is unlikely to pay. This means that they can and do take any domestic violence context into account when applying the statutory test Emphasis added. . 170. I am asked to comment on the suggestion at paragraph 105 of the SFGs that the CMS should prioritise the investigation of NRP’s finances, and any ensuing enforcement measures, in domestic violence cases. This suggestion, with respect, fails to appreciate the scale of the task facing the CMS. As outlined in the background section above, the current scheme is the product of many years of experience and reforms that have sought to strike a balance between the competing interests of fairness and accuracy in every case on the one hand and the effective and efficient administration of the scheme as a whole on the other. With that balance in mind, all cases in the 2012 scheme are treated equally. Not only is this fair to all cases, it also simplifies the administration required. It would be particularly challenging to seek to identify within the scheme all victims of domestic abuse. That is so in particular given the existence of allegations and counter allegations between parents that is unfortunately quite common in the scheme. 171. Further, the Claimants’ suggestion, even if it was administratively workable, would necessarily involve deprioritising other cases that could reasonably be seen as more deserving when assessed by another metric. Other PWCs are often vulnerable. In the caseload of the CMS there are many parents who are in particular need of assistance, for example because of homelessness, mental or physical disability or poverty. Other metrics could also be devised for prioritisation: e.g. the amount of arrears being incurred every month, or the duration over which arrears have been incurred. The only fair and efficient way to administer the scheme is to treat all cases equally and by reference to the facts of the individual case. Prioritisation for PWCs who were victims of domestic abuse could also risk exacerbating the existing problem of parents ‘fighting each other’ through the scheme. It could, unfortunately, increase the likelihood of false allegations of domestic abuse. 172. I am also asked to comment on the allegation at paragraph 121(b) of the SFGs that victims of domestic abuse are less likely to receive maintenance payments. The CMS and the DWP do not keep figures on the relative proportion of maintenance payments received by victims of domestic abuse as compared to other PWCs, but I understand that the statistics cited in this paragraph of the SFGs have been obtained from a survey by Gingerbread… 173. The first point I would make is that such surveys are necessarily less reliable than the DWP’s internal data on its case load. In particular, it is not clear how this survey was conducted. For instance, it is not clear whether the people conducting the survey were able to correct for self-selection bias: single parents who have experienced problems with collection of child maintenance may have been more likely to respond to the survey than those who have not experienced such problems. It is also not clear what category of single parents was being sampled, but it seems to be a survey of single parents generally rather than an analysis of parents with cases on Collect & Pay. The figures can say very little, if anything, about the functioning of the Collect & Pay system. I would be cautious about drawing any definitive conclusion from these figures that victims of domestic abuse are less likely to receive child maintenance payments through the scheme.”
“the ongoing failures to collect and enforce the maintenance payments in the Second to Eighth Claimants’ cases (including investigatory steps preparatory thereto) and the policies and practices giving rise to the same breach the Defendant’s positive obligation underArticle 8 ECHR (“Art 8”) to protect the Claimants, as known victims of domestic violence, from ongoing economic abuse”
“The Defendant has a positive obligation to protect victims of domestic violence from continued economic and psychological abuse through the CMS scheme”
“There is no doubt that article 8 entails both negative obligations - not to interfere - and positive obligations - to secure the right to respect for a person's private and family life, his home and his correspondence. But it does not confer any right to health or welfare benefits or to housing. The extent to which any member state assumes responsibility for supplying these is very much a matter for that member state. In this country, housing law defines the extent of the obligation and the power to provide housing at public expense. Social services law defines the extent of the obligation to provide services (which sometimes includes assistance with housing) for vulnerable people, such as children, the elderly, the sick and the disabled. If social services law does not provide assistance to an occupier whose personal circumstances are said to make eviction from this particular accommodation disproportionate, then I question whether housing law should be made to do so. In an appropriate case, it is incumbent upon the housing authority to liaise with the social services and education authorities before deciding to take action. There is nothing in the jurisprudence to indicate that article 8 requires more of them than is already required.”
“Like Kennedy LJ in the Court of Appeal, I do not think the enhanced contribution required of Ms M. impairs in any material way her family life with her children and former husband, or her family life with her children and her current partner, or her private life. No doubt Ms M. has less money to spend than if she were required to contribute less… But this does not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life, nor does it invade the sphere of personal and sexual autonomy which are the essence of private life. I regard the application of a rule governing a non-resident parent's liability to contribute to the costs incurred by the parent with care, even if it results in the non-resident parent paying more than she would under a different rule, as altogether remote from the sort of abuse at which IFP is directed.”
“I am content to assume that the unit consisting of Ms M, her new partner and (especially when living with them) their children by their former marriages should be regarded as a family for article 8 purposes. I would also accept that the complicated formulae employed by the 1991 Act and the Regulations are intended to strike a fair balance between the competing demands (on often limited financial resources) of the children (when living away from the new home) and the new household. To that extent the legislation is intended, in a general sort of way, to be a positive measure promoting family life (or, it might be more accurate to say, limiting the damage inevitably caused by the breakdown of relationships between couples who have had children). But I do not regard this as having more than a tenuous link with respect for family life. I do not consider that this way of putting Ms M's case brings it within the ambit of respect for family life under article 8.”
“124. Mrs M’s case under article 8 read witharticle 14 of the Convention is that the regime fell “within the ambit” or “scope”, or was “one of the modalities of the exercise”, of her right to respect for (a) her family life with her children and former partner, (b) her family life with her new same sex partner and (c) her private life. She does not have to show an actual breach of the United Kingdom’s obligation to afford such respect under article 8, taken by itself… But the circumstances must fall within the ambit of article 8, in order for article 14 to be relevant. In this connection, I have had the benefit of reading in draft the opinion of my noble and learned friend, Lord Walker of Gestingthorpe, and I am in agreement with his analysis of the authorities and the reasoning leading him to the conclusion that a tenuous link between the child support regime and her family or private life is insufficient. … 125. In the present case, Mrs M was entitled to respect for such continuing family life as she had with her children as well as, possibly, with her former partner. But the regime as a whole was directed at supporting her children in the new family in which her children lived; while the particular aspects of the regime about which she complains were directed at any new relationship she formed. If these aspects (or indeed the whole regime) had any bearing at all on her continuing family life with her children or former partner, the link could only be of the most indirect and tenuous nature. I agree with the Court of Appeal’s unanimous rejection of the case based on her family life with her children and former partner.”
“I see considerable force in the argument that a state which prevents a parent with care from claiming child support through the ordinary court system has a positive obligation to provide an effective alternative system. The state has a positive obligation underarticle 8 of the European Convention to take steps which permit the child's integration in his own family: see Marckx v Belgium(1979) 2 EHRR 330 . The child can scarcely benefit from family life if there is not enough to live on. But I accept that it is a considerable feat of interpretation to spell the "right to receive regular, reasonable maintenance" (for which Mr Mostyn QC so persuasively contends) out of the right to respect for family life in article 8.”
“Is Article 8 engaged? 29. Although one has considerable sympathy for the Claimants on their pleaded case, the issue is whether the failure of the Child Support Agency to function effectively and to enforce the maintenance assessments in their favour against their father gives rise to an Article 8 claim. I see no chance at all that Article 8 can assist these Claimants. First, there is the statutory framework itself, which is a discreet and comprehensive scheme attempting to reconcile the various competing interests. It grants the CSA a discretion and does not impose a duty to proceed in any particular way. The actions of the CSA are subject to judicial review. It is a scheme which, Mr Emello conceded, was Article 8 compliant. That, of course, is a concession which had to be made given the decisions of not only the European Court of Human Rights but also the highest court in this country. The result is, as Lord Hope put it in Marcic, that the malfunctioning of the statutory scheme in particular cases does not cast doubt on its overall fairness so as to ground a claim under Article 8. Just as in that case the statutory scheme fell short over a number of years, so on the pleaded case there was a significant failure over a substantial period to ensure that the father paid the Claimants the maintenance assessments which had been made. Of itself, however, that on the authorities cannot ground an Article 8 claim. 30. The second basis on which the Claimants have advanced their case takes the matter no further in as much as it is an argument that as a result of Article 8 there is a right of the Claimants to reasonably regular maintenance from the State. That must fail, because it is quite clear from the cases to which I have referred that Article 8 confers no such right to welfare payments on individuals. The jurisprudence has not built on the right to respect for family and private life economic rights, which might include a right to reasonable maintenance for which the Claimants seem to be contending. … 31. The pleaded case sets out the hardship which the Claimants suffered -- moving to a smaller house, giving up certain activities, having to cut down on expenditure and having to take free school meals. That, of course, is a standard of living which many people who live in modest circumstances in this country experience. Yet children who have to live modestly as a result of the fact that, for example, their parents are dependent on Social Security benefits, or are unemployed, do not have an Article 8 claim. That being the case I fail to see how the Claimants in this case can boost their standard of living by latching on to Article 8 and claiming that somehow it is engaged as a result of what the CSA has or has not done. Were they to succeed, children like them would be in a better position than other children living in modest circumstances. That to me would produce a result which the Convention could not contemplate. 32. Finally, I see no hope of the Claimants succeeding as a result of the third strand of jurisprudence, in other words, those cases involving an Article 8 claim involving the Child Support Agency. Indeed, on my reading those cases are supportive of the Defendant’s not the Claimant’s case. I accept that the facts of those cases are different in that they are concerned with the impact of the legislation on the non-resident parent. In this case we are concerned with what is said to be the failure of the State to collect maintenance for the beneficiaries of the scheme. The Claimants contend that they were denied basic living costs to which they were entitled through the assessed maintenance payments. But the answer is provided in M, albeit that it was concerned with a non-resident parent. In that case M had less money to spend as a result of the CSA calculation, but for the House of Lords that did not impact on her family life with her non-resident children or her private life with her partner. As a matter of principle family life in Article 8 [is] constituted by the love, trust confidence, mutual dependence and unconstrained social intercourse which exists within the family and private life by the sphere of personal and sexual autonomy. The same conclusion must surely apply in the converse situation where persons have less money as a result of the CSA failing to collect arrears of maintenance. That may make family life and private life tougher and perhaps more stressful than it would be, but it cannot be said to affect the core values attached to these concepts.”
“61…In particular, while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective respect for private life, which may involve the adoption of measures in the sphere of the relations of individuals between themselves. 62. The Court has previously held that the concept of private life includes a person’s physical and psychological integrity. Under Article 8, States have a duty to protect the physical and psychological integrity of an individual from other persons. To that end, they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals, including in the context of harassment at work. 63. In the context of attacks on the physical integrity of a person, such protection should be ensured through efficient criminal-law mechanisms… Where attacks on physical integrity come from a private individual, the Convention does not necessarily require State-assisted prosecution of the attacker in order to secure the applicant’s Convention rights. 64. As regards less serious acts between individuals which may violate psychological integrity, an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection… 65. Moreover, as far as positive obligations under Article 8 are concerned, this is an area in which Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. The Court’s task is not to substitute itself for the competent domestic authorities in determining the most appropriate methods of protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation…”
“It [is] sufficient that [the policy] will inevitably operate [incompatibly with Convention rights] in a legally significant number of cases”
“(1) The obligation is an obligation not to give policy direction to recipients to do something which conflicts with the legal duty of the addressee. The test is: does the policy in question authorise or approve unlawful conduct by those to whom it is directed? (2) The court must look at whether the policy can be operated in a lawful way or whether it imposes requirements which mean that it can be seen at the outset that a material and identifiable number of cases will be dealt with in an unlawful way. (3) In particular, a procedure will be unlawful if the effect of the procedural rules set out in the guidance is that a significant number of cases introduced into the system would be decided unfairly and hence unlawfully. However, the test is not a statistical test. … (6) Category (iii) is where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position. A case is more likely to fall into category (iii) if a Secretary of State has issued guidance to his or her own staff explaining the legal framework in which they perform their functions. (7) However, in a category (iii) case, it will not usually be incumbent on the person promulgating the policy to go into full detail about how exactly a discretion should be exercised in every case. A policy may be sufficiently congruent with the law if it identifies broad categories of case which potentially call for more detailed consideration, without particularising precisely how that should be done. (8) The authorities set out above show that the circumstances in which a written policy or guidance may render unlawful decisions that are taken pursuant to a statutory discretion are narrower than was sometimes believed. The test is not simply whether the guidance is inherently unfair, or [whether] the guidance, if followed, would (i) lead to unlawful acts, (ii) permit unlawful acts or (iii) encourage such unlawful acts, or would lead to a real or unjustified risk of unfairness or unfairness. (9) Also, it was not the role of policy guidance to eliminate all uncertainty regarding its application and all risk of legal errors by decision-makers, and the drafter of a policy statement is not required to imagine whether anyone might misread the policy and then to draft it to eliminate that risk; and (10) it is not necessary, in order to be lawful, that the guidance must invariably produce conduct on the part of decision-makers that would be lawful.”
“Second, I am aware that the Claimants allege that withholding of payments can be a form of economic abuse by NRPs. The fact that payments have been withheld is picked up by the CMS and forms a key factor in the determination of whether the NRP should be moved to Collect & Pay. Decision makers can also factor in any domestic abuse background when taking decisions, if it is relevant to the question whether the NRP is unlikely to pay in the future. As set out above, DMG 49005 expressly notes that the list of factors in that paragraph “is not definitive” and that “consideration must be given to all other relevant factors” and the decision as to whether an NRP is unlikely to pay must be “made by the DM using their judgement and based on the merits of the individual case.”” (3) Third, even in the case of Direct Pay, the DMs are told to consider taking other steps to protect a victim of domestic abuse. As the Defendant states in paragraph 63 of his skeleton argument: “Where there are specific concerns about domestic violence which require action other than timely and efficient use of collection and enforcement powers, specific guidance is given. Guidance is given on how to facilitate Direct Pay so that there is no direct contact between the PWC and NRP. Moreover, the Defendant gives separate training and has specific guidance to decision makers on how to spot signs of domestic abuse and how to respond: see DG §§175-178.”
“Direct Pay MOPs for PWC who have experienced domestic abuse 15057 Where a request to move to direct pay is made and there is no evidence to suggest that the NRP will be unlikely to pay, if the PWC does not wish to provide bank details because they have either experienced or fear domestic abuse (including financial abuse), there are alternative direct payment options available, which the PWC may not be aware of and which must be brought to their attention. 15058 For example, payment to an alternative bank account, such as one with a non-geographic sort code (a non-geographic account is one that cannot be traced and will help protect a person’s identity and location.). Most banks are able to offer accounts where the customer’s branch location cannot be identified through the sort-code. 15059 Where a PWC considers such alternatives to be unsuitable, DM’s may agree to arrange payment to another party’s bank account, such as a grandparent, if the PWC and the other party are in agreement. … 15060 Where a conditional bail order or similar court order is in place that prevents direct contact between the PWC and NRP a PWC may have concerns that entering into a direct pay arrangement with the NRP may constitute direct contact. DMs should reassure the customer that HMCTS would generally not see a direct pay, child maintenance arrangement as direct contact unless it was specifically stipulated in the order or a court subsequently rules that such an arrangement would in fact violate the terms of the order. For further information on dealing with this type of situation see CMS instructions: Change service type to collect and pay and the CMS DA plan.”
“43. There will be cases where the application of the Gillick test for lawfulness of a policy may be less clear than it is here. The first claim brought by the appellant to challenge the Guidance is an example. In its original form, the Guidance did not tell decision-makers to consider seeking representations from a subject before a disclosure to the public, but nor did it tell them not to. However, reading the Guidance as a whole, it was clearly intended to set out for decision-makers a reasonably complete decision-making procedure to be followed, so in our view the Divisional Court was right to hold that, read objectively, it misdirected decision-makers as to how they should proceed, by implicitly indicating that they did not have to invite representations whereas in many cases they had a legal obligation to do so.”
“…there is a continuing breach and therefore the claims are not out of time. The Claimants are all due outstanding sums which the CMS continues to fail to collect and enforce Emphasis added. . Thus, as per Burton J in R (G) v SSJ[2010] EWHC 3407 (Admin) , this is “a continuing state of affairs, which continues not to be put right by the Defendant” such that “time does not run against a claimant at least until that state of affairs has come to an end” (§11). 52. It is therefore wrong to treat these claims as arising ‘once and for all’ the first time the Claimants were negatively affected by certain policies (on a Badmus basis): firstly, the claim is primarily based on operational failings as well as certain policies per se. The correct analysis is that, in fact, they would be entitled to bring a claim each time there is a failure to enforce (R (Kehoe) v SSWP[2006] 1 AC 42 ). Here, the Claimants’ claims of a persistent failure to enforce and/or systemic failings are ones which, by definition, have arisen over time once the state of affairs has become apparent. As above, a claim based on one breach or individual failure to enforce was likely to have been defended on the basis that it related to an isolated error and/or that it was premature. The Claimants have raised complaints and escalated these issues over time. This claim permits the Court to consider the lawfulness of the overall pattern of failures, which continue to arise based on current policies and practices; otherwise, it is very difficult to see how these failings can be brought before the Court.”
“The challenge relates to the persistent failure by the Defendant to collect child maintenance payments from the Claimant’s absent parent … leaving her family … in financial difficulty…”
“Here it is important to emphasise that the statutory test is not one of good reason for delay but the broader test of good reason for extending time. This will be likely to bring in many considerations beyond those relevant to an objectively good reason for the delay, including the importance of the issues, the prospect of success, the presence or absence of prejudice or detriment to good administration, and the public interest.”
“The Defendant’s failures to collect and enforce the payments owed to the Claimants and carry out ancillary investigative steps amount to a clear interference with their A1P1 rights.”
“74… the 1991 Act (taken in conjunction with the right to seek judicial review the CSA fails to collect or enforce arrears of maintenance) provides a sufficiently comprehensive remedy to lead me to conclude that a [common law] duty of care would be inconsistent with the statutory scheme”; and (3) Treharne (supra) at [15]: “That respect in Kehoe for the comprehensive legislative solution which Parliament has enshrined in the 1991 Act suggests that, since the legislation is Convention compliant and affords a comprehensive scheme with its own discreet remedies, including judicial review, Article 8 should have no purchase. In other words, the jurisprudence suggests that the establishment of the statutory scheme of the 1991 Act involving its discretions and checks and balances, supplemented by the statutory appeal mechanism and judicial review, should satisfy the State’s obligations in respect of Article 8 so that there is no scope for review on a case by case basis.”
“The first issue: article 1FP 89. I can deal with this issue briefly as I am in full agreement with the majority of the Court of Appeal (Sedley LJ at paras 52-53 and Kennedy LJ at paras 169-172). Sedley LJ quoted from the Commission in Burrows v United Kingdom App No 27558/95 that article 1FP was “primarily concerned with the formal expropriation of assets for a public purpose, and not with the regulation of rights between persons under private law unless the State lays hands—or authorises a third party to lay hands—on a particular piece of property for a purpose which is to serve the public interest.”
“A non-resident parent is responsible for contributing to the maintenance of his children.The Child Support Act 1991 and its attendant regulations quantified the amount of that contribution and provided machinery for its collection. That is far outside the scope of article 1 of the first protocol. That is very distant from the type of interference at which article 1 is aimed.”
“it has to be shown by the claimant that a neutrally formulated measure affects a disproportionate number of members of a group of persons sharing a characteristic which is alleged to be the ground of discrimination, so as to give rise to a presumption of indirect discrimination.”