Treharne & Ors v Secretary of State for Work & Pensions [2008] EWHC 3222 (QB)

Case No QB/2008/PTA/0539[2008] EWHC 3222 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 30 September 2008
Before
THE HONOURABLE MR JUSTICE CRANSTON
Between
TREHARNE AND OTHERSClaimantSECRETARY OF STATE FOR WORK AND PENSIONSDefendants
Wordwave International, a Merrill Communications CompanyPO Box 1336, Kingston-Upon-Thames KT1 1QTTel No: 020 8974 7305 Fax No: 020 8974 7301Email Address:(Official Shorthand Writers to the Court)
MR R EMELLO and RASHID AHMED (Instructed by Freeth Cartwright LLP) appeared for ClaimantMR ANDREW LOGAN (Instructed by DWP Solicitors) appeared for Defendant
Judgment
[1]The Child Support Agency (“the CSA”) was established in the early 1990s with wide backing. The rationale was to replace a fragmented, slow and ineffective system of child maintenance through the courts with a government agency. The White Paper, which was background to the agency, spoke of many instances in which maintenance had been awarded but not paid, and also set out the extent to which maintenance awards had fallen into arrears. The proposal was, in relation to enforcement, that the agency would substitute for the parents. Parents would commission the agency to take enforcement action on their behalf so that it had standing authority to enforce maintenance assessments. The Child Support Act 1991 gave effect to this plan. Subsequently, there have been a number of amendments to the legislation. As well, certain administrative steps have also been taken such as the establishment of the Child Support Agency Standards Committee. It is fair to say that the CSA has not always realised the hopes surrounding its establishment. It has fallen down in the accuracy of assessments and also in the enforcement of them. As a result the original statutory scheme had been amended and the process adapted.[2]This claim is concerned with an attempt to use the courts to achieve a remedy in relation to what is said to be a failure of the CSA properly to enforce a maintenance assessment. The Claimants have sought to adduce Article 8 of trhe Convention on Human Rights to seek damages in relation to what they say is the inefficiency of the agency in their case. The way the defendant has characterised the claim is as an attempt to ensure that it acts as a guarantor of last resort in respect of a defaulting parent’s liability. It points to previous unsuccessful attempts in similar cases to establish a common law responsibility for damages in the case of failure of the CSA or to invoke Article 6 of the Convention. Background[3]According to the pleaded case the three Claimants are siblings aged 22, 21 and 14 years respectively. In 1999 their mother applied to the Child Support Agency (“the CSA) for child maintenance payments due to them from their non-resident father. He was living at a property registered in his sole name in Nottingham. From the outset he indicated that he had no intention of making any maintenance payments and that he would make every effort to avoid meeting his legal obligations.[4]In July 1999 the CSA made an interim maintenance assessment of £155.55 per week effective from the end of the month. No maintenance was paid so the Claimant’s mother requested the CSA to take enforcement action for the arrears. She also informed them that he was not abroad as he had told the agency. Further requests were made to the CSA to enforce the assessment, but by January 2000 the arrears amounted to over £3,000. At one point the CSA issued a notice of intention to apply for a liability order against the father, but that was not pursued. Despite the mother informing the CSA that the father was still at the same address, they did nothing. In October that year the mother informed the CSA that the father had placed his property on the market. If they were to enforce a liability order against him, the best method would be by obtaining a charging order against the property. Nothing was done and in May of 2001 the property was sold for about a quarter of a million pounds. By mid-2002 the arrears were some £42,000. The father purchased another property and the CSA initiated enforcement action, but because of delay he was able to sell that before a charging order could be obtained.[5]The present claim was lodged in May 2006. Apparently the mother compromised her claim with the defaulting father in August 2004 and she has never been a party to this action. Originally, the claim was brought in negligence as well as Article 8 in respect of the breach of duty arising from what was said to be an assumed responsibility for assessing, collecting and enforcing the maintenance payments. Following the decision in Rowley v. Secretary of State for the Department of Work and Pensions, [2007] EWCA Civ 598 the negligence part of the claim was abandoned and the claim has now been placed solely on Article 8. One aspect of the pleaded case is that had the CSA informed the Claimants and their mother unequivocally that it would not seek a charging order against the father’s property, they would have considered applying for judicial review to compel it to do so in accordance with its published policy on enforcement and in accordance with a representation said to have been made personally to the mother.[6]The failure to obtain a charging order is one of the breaches of positive obligation which it is pleaded Article 8 imposes on the CSA. The failure to obtain a deduction order from the father’s earnings is pleaded as another failure. In the pleadings it is said that prior to the maintenance arrears developing, the Claimants led a normal family life. That normal family life, and associated lifestyle, altered significantly in an adverse way as a result of the CSA’s failure to collect the maintenance arrears. This alteration in lifestyle was caused, it is said, as a direct result of the failure to collect and enforce the maintenance arrears. The hardship suffered by the Claimants is pleaded, as including:(1) moving to a smaller house;(2) giving up sporting and recreational activities;(3) not being able to purchase computers and to do homework;(4) having to cut down on food expenses;(5) having to cut down on holidays;(6) having to purchase second-hand uniforms and receive some from friends;(7) having free school meals, which exposed the children to school bullying;(8) not being able to go on school trips;(9) not being able to purchase clothing, toys, cycles and furniture; and(10) not being able to entertain friends or to undertake certain leisure activities.[7]The matter came before District Judge Oliver ex-parte in April of this year, and he struck out the claim on the basis that it was bound to fail. This is an application by the Claimants to set aside that order. If I am to do that I remind myself that the test is demanding: I must be able to say with certainty that the Claimants will be unsuccessful. In other words, as the authorities put it, it is not appropriate to strike out a claim until the facts are known unless on all the facts the claim must fail. Statutory Framework[8]In brief outline the features of the statutory scheme of the Child Support Act 1991 (“the Act”) can be summarised as follows. Under s.1 of the Act each parent is responsible for maintaining a qualifying child. There is a duty on the non-resident parent to make periodic payments where a maintenance assessment requiring them to do so is in force. The CSA must have regard to a child’s welfare when considering the exercise of its discretionary power conferred by the Act: s.2. Section 4 of the Act permits parents to make an application to the CSA for the assessment of maintenance. If the person with care of the child is a parent claiming or receiving income support, or various other prescribed means tested benefits, he or she may be required to authorise the CSA to take action to recover child support maintenance from the absent parent: s.6. Section 8 of the Act excludes the role of the court in respect of the assessment of child support maintenance, save in exceptional circumstances. Child support maintenance is determined by applying a complex maintenance formula prescribed by the Act. Under s.11 and Schedule 2 those provisions have been supplemented by more detailed secondary legislation. Maintenance assessments can be revised. Collection and enforcement are provided for under the Act and the attendant regulations. The CSA can obtain deduction from earnings orders. As well, it can apply to a Magistrates’ Court for a liability order which may then be subject to enforcement. A liability order is the gateway to other enforcement action such as the imposition of a charging order on property.[9]The Act sets out limited rights of redress in relation to decisions made under it. The person with care and the absent parent both have a right of appeal to an appeal tribunal in respect, for example, of the amount of a maintenance assessment: s.20. There are further rights of appeal to the Child Support Commissioner and the Court of Appeal. Section 46A(1) of the Act provides:
“Subject to the provisions of this Act any decision of the Secretary of State or an appeal tribunal made in accordance with the foregoing provisions of the Act shall be final.”
However, challenges to the enforcement (or lack of enforcement) of child support maintenance assessments do not fall within the ambit of these statutory appeal provisions. A person who considers that the CSA is acting unlawfully in the exercise of a statutory discretion can apply for judicial review. The availability of judicial review in this context was recognised by the House of Lords in R (on the application of Kehoe) v. Secretary of State for Work and Pensions [2005] UKHL 48; [2006] 1AC 42, paragraphs 47 and 79. There are a number of reported cases where judicial review of CSA decisions has been sought. An essential feature of the statutory scheme established by the 1991 Act is its comprehensive nature. It provides for the determination by a public authority of a defined financial entitlement in accordance with detailed statutory rules, albeit that decisions may be subject to appeal and the exercise of discretion amenable to judicial review.[10]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. Nevertheless, the basic reality is that the CSA has, as a matter of public record, fallen short of the hopes which surrounded it at the time of its establishment. Enforcement has been one bone of contention as parents with care of children have complained that non-resident parents have been able to evade with ease the payment of assessments made against them. The issue in this case is whether such administrative failure, possibly constituting maladministration, gives rise to an action under Article 8 of the European Convention on Human Rights. Article 8 and its jurisprudence[11]Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The threshold to establish interference under Article 8.1 is, under the authorities, not especially high. In most cases the real issue will be justification under Article 8.2, in that Article 8.1 is readily engaged. The view that the threshold is not a high one was endorsed by the Court of Appeal in Anufrijeva v. Southwark London Borough Council [2003] EWCA 1406; [2004] QB1124. In that case the Lord Chief Justice said that, especially where the family unit was involved, Article 8 may be more readily engaged (paragraph 43). “Neither Mr Sales nor Mr Swirski, who appeared for the Defendant in Anufrijeva challenged the decision of Sullivan J in Bernards, either in principle or on the facts. Our conclusion is that Sullivan J was correct to accept that Article 8 is capable of imposing on a state a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that Article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage Article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, Article 8 may require the provision of welfare support in a manner which enables family life to continue. Thus, in R (J) v. Enfield London Borough Council [2002] EWHC 735 (Admin), where the Claimant was homeless and faced separation from her child, it was common ground that, if this occurred, Article 8 (1) would be infringed. Family life was seriously inhibited by the hideous conditions prevailing in the Claimants’ in Bernard and we consider that it was open to Sullivan J to find that Article 8 was infringed on the facts of that case.”[12]On its face Article 8 is concerned with respect for family and private life. It does not establish a right to a family or to private life. Article 8 gives rise to both positive and negative duties not to interfere with family or private life unless that is justified. The boundaries of Article 8 are not especially clear, and it is fair to say that they have expanded as the jurisprudence has developed. However, Lord Walker of Gestingthorpe observed in M v. Secretary of State for Work and Pensions [2006]UKHL 11;[2006] 2AC 91that the European Court of Human Rights has acted with prudence in handling Article 8 claims, conscious of the dangers of an unrestrained and unprincipled approach. At paragraph 83 he said (omitting citations):
“The ECHR has taken a more nuanced approach, reflecting the unique feature of Art 8 to which I have already drawn attention: that it is concerned with the failure to accord respect. To criminalise any manifestation of an individual’s sexual orientation plainly fails to respect his or her private life, even if in practice the criminal law is not enforced... so does intrusive interrogation and humiliating discharge from the armed forces... Banning a former KGB officer from all public-sector posts, and from a wide range of responsible private-sector posts, is so draconian as to threaten his leading a normal personal life... Less serious interference would not merely have probably been a breach of Art 8; it would not have fallen within the ambit of the article at all.”
[13]Three strands of the Article 8 jurisprudence are pertinent to a consideration of the present claim. The first concerns the scope for an Article 8 claim when there is said to be maladministration within the context of a comprehensive statutory scheme which has a bearing on family and private life in its wider sense. Secondly, there is the jurisprudence which relates to the obligation of the State, if any, to ensure that social welfare or social welfare type payments are made to persons, in particular to children. Thirdly, there are those cases which have directly involved Article 8 and the CSA. Article 8 and operation of a statutory scheme[14]R (on the application of Kehoe) v. The Secretary of State for Work and Pensions [2006] 1 AC 42 concerned the application of Article 6 of the European Convention on Human Rights to the operation of the statutory scheme established by the 1991 Act. The Claimant argued that Article 6 guaranteed her access to an impartial and independent court where her claim to recover child maintenance from her former husband could be fairly determined. In the course of his judgment in that case Lord Bingham referred to the deliberative decisions of representative assemblies and to the respect which the courts should give them so long as they did not infringe rights guaranteed by the Convention. Lord Bingham said that whether the scheme established by the 1991 Act was on balance beneficial to those whom it was intended to benefit might well be open to question, but that was an issue for Parliament to resolve and not the courts (at paragraph 10). To similar effect, Lord Hope said that the enforcement of any assessment was a matter for the Secretary of State and that the statutory scheme of the 1991 Act had been designed on the assumption that a system of child support maintenance run by the State would operate more efficiently than one that relied on private enterprise. Lord Hope went on to say that experience had shown that the operation of the scheme had fallen far short of what was expected, but that was the system that Parliament had laid down and the courts must take it as they found it. The scheme did not permit a parent with care to intervene in proceedings for its enforcement even if these were not being conducted as efficiently or as effectively as she would like (at paragraph 35). There is a similar passage in Lord Brown’s decision (at paragraph 79).[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.[16]Consistent with that approach the House of Lords has held in other areas that once a scheme has been established under domestic legislation and adjudged to be compliant with Article 8, there is no scope to argue on an individual basis a breach of Article 8 rights. That was the effect of the judgment in Marcic v. Thames Water Utilities Limited [2003] UKHL 66; [2004] 2 AC 42. It was a case involving a statutory scheme under which sewers were operated in circumstances where the Claimant had suffered serious and repeated external flooding from overloaded sewers. In the course of his judgment Lord Nicholls of Birkenhead said: “In principle this scheme seems to me to strike a reasonable balance. Parliament acted well within its bounds as policy maker. In Mr Marcic's case matters plainly went awry. It cannot be acceptable that in 2001, several years after ThamesWaterknew of Mr Marcic's serious problems; there was still no prospect of the necessary work being carried out for the foreseeable future. At times ThamesWater handled Mr Marcic's complaint in a tardy and insensitive fashion. But the malfunctioning of the statutory scheme on this occasion does not cast doubt on its overall fairness as a scheme. A complaint by an individual about his particular case can, and should, be pursued with the director pursuant to the statutory scheme, with the long stop availability of judicial review. That remedial avenue was not taken in this case.” (paragraph 43) At paragraph 87 Lord Hope said that a balance had to be struck if a system was to be provided at a reasonable cost. Parliament’s choice was that it was for the directors of the Defendant to deal with matters within the statutory scheme they administered. A margin of appreciation was given to them. The upshot was that one aspect of the claim in that case was unsuccessful i.e., the Article 8 claim that the failure to remedy the sewers had interfered with the Claimant’s right to respect for his private life and home. The House of Lords held that, given the need to balance the competing interests and the availability of judicial review, the statutory scheme was compatible with the Claimant’s rights under the Convention. Accordingly, no claim for damages could be brought under the Human Rights Act 1998.[17]A similar approach was adopted by the House of Lords in Kay v. Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465. There it was contended that in circumstances where possession proceedings were undertaken which complied with the domestic law there was, nevertheless, a free-standing Article 8 right to consideration of the individual circumstances of the person affected. The majority of the House of Lords rejected that argument. Lord Hope said that the jurisprudence taught us that the only question which can be raised under Article 8 is whether the law itself is compatible with the occupier’s Convention rights (paragraph 65). So long as the law itself is compatible with Article 8 it was not open to the court to apply Article 8 to the facts of each case. Once its requirements had been satisfied in general there was nothing left for the court to consider under Article 8 in a specific case.[18]The same approach was adopted in Doherty v. Birmingham City Council [2008] UKHL 57, another case involving repossession of a person’s home. At paragraph 22 Lord Hope said that nothing that he said was to be understood as detracting from the basic law laid down in cases such as Kay. The effect of those decisions, said Lord Hope, had been summarised by Baroness Hale in Belfast City Council v. Miss Behavin’ Limited [2007] UKHL 19; 1 WLR 1420: “There are situations in which the court is entitled to say that the legislation itself strikes a fair balance between the rights of the individual and the interests of the community, so that there is no room for the court to strike the balance in the individual case” (Paragraph 36). Lord Hope went on to say that the basic rule was that such interference with the right to respect for the home as may flow from the application of the law which enables a public authority to exercise its unqualified right to possession did not violate the essence of the Convention right. Unless the legislation itself could be attacked this was a conclusion which can be applied to all cases of this type generally. Article 8 and maintenance[20]The second strand of jurisprudence relates to whether Article 8 confers on individuals, especially children, a right to some sort of maintenance payment. In Smith v. Smith [2006] UKHL 35; [2006] 1 WLR 2024 Baroness Hale said the State has a positive obligation under Article 8 of the Convention to take steps to permit a child’s integration into his own family, and a child could scarcely benefit from family life if there was not enough to live on. But Baroness Hale went on to say: “But I accept that it is a considerable feat of interpretation to spell the "right to receive regular, reasonable maintenance... out of the right to respect for family life in Article 8.” (paragraph 77). Baroness Hale underlined this point in Kay v. Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465: “191. 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. Baroness Hale went on to observe that the European Convention began life as a code of individual civil and political rights, not a code of social and economic rights.[21]There is gloss on Baroness Hale’s analysis in the case already referred to, Anufrijeva v. Southwark London Borough Council [2003] EWCA Civ. 1406; [2004] QB 1124. There one claim involved a failure it was said, of the duty of the Council to provide accommodation and to meet the special needs of a member of the family. The Court of Appeal held that Article 8 was capable of imposing a positive duty to provide an individual with support in order to ensure respect for his family and private life, although it went on to say that it was unlikely that Article 8 would require an individual to be provided with welfare support when his predicament was not sufficiently severe to engage Article 3. The court said that Article 8 was more likely to be engaged where the welfare of children was at stake and the provision of welfare support was necessary to enable family life to continue. The court recognised the possibility that modest damages might be awarded in such cases for maladministration under the Human Rights Act of 1998. It said in passing that, when considering whether there was a lack of respect for Article 8 rights, the focus should be on the extent of the defect in behaviour of the public authority involved. Article 8 and the CSA[22]The third strand of Article 8 jurisprudence relevant in this case concerns those decisions where Article 8 has been raised directly in claims under the Child Support Act 1991. All of these cases have involved claims by the parents obliged to make payment rather than by those caring for the children as beneficiaries of maintenance assessments. In Burrows v. United Kingdom (Application 27558/95) the applicant complained that by placing a sudden and extortionate demand on him to make an inflated maintenance bill, which overturned an earlier agreement and then by making an arbitrary increase in the assessment the State had failed to show respect for family life. In rejecting the claim the Commission said that the relevant child support legislation did not, of its very nature, affect family life. It went on to say that in the light of the factual information provided by the applicant regarding his income and expenses, the Commission did not consider that he had shown that the effect of the operation of the legislation in his case was of such a nature and degree as to disclose any lack of respect for his rights under Article 8. Logan v. United Kingdom [1996] 22 EHRR CD 178 is to similar effect. A complaint was made that the amount of maintenance the applicant was required to pay left him with insufficient money to continue reasonable contact with his children. He claimed that he could only afford to visit his children once a month instead of once a fortnight and that this impeded the development of his relationship with their children. His submission was that this was in breach of Article 8. Again the Commission rejected the argument. It noted that the legislation in so far as it sought to regulate the assessment of maintenance payments from absent parents did not by its nature affect family life. Nor, in the light of the factual information supplied by the applicant in that case, including the cost of visiting his children every fortnight, did the Commission consider that he had shown that the effect of the operation of the legislation in his case was of such a nature and degree as to disclose any lack of respect for his rights under Article 8.[23]That approach view was endorsed by Wilkie J, as he now is, in Plumb v. Secretary of State for Work and Pensions [2002] EWHC 1125 (Admin). Wilkie J held that just as the Commission in Burrows and Logan had concluded that there was no interference with the applicants’ Article 8 rights by virtue of the facts disclosed there, so in the case before him nothing that the Claimant had said provided evidence which amounted to an interference with his family or private life. However, Wilkie J said that the effects of decisions made pursuant to the legislation may affect family life, depending on the nature and degree of interference caused in consequence of the payment or deduction from benefit required.[24]In R (on the application Denson) v. Child Support Agency [2002] EWHC 154 (Admin) [2002] 1 FLR 938, the Claimant had an ongoing dispute with the Child Support Agency relating to maintenance payments, and applied for judicial review of its decision to apply for a liability order. Munby J held that it could not be said that the required steps impinged on the Claimant’s private life or had an impact on his state of mind, psychological equilibrium or reputation. Munby J went on to hold that if Article 8 was engaged the interference with the Claimant’s rights was justified and proportionate. Munby J said that counsel for the Claimant had disavowed any suggestion that the scheme created by the Act of itself gave rise to any breach of the Convention and likewise had disallowed any suggestion that the CSA’s general administration of the scheme gave rise to any such breach: “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.” (paragraph 22) Munby J went on to hold that the CSA’s obtaining a liability order did not engage Article 8 at all.[25]M v. Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 AC 91 was another decision involving the paying parent. M, the non-resident parent, was in a same sex relationship. She contended that, as a result of the legislation, if she had been living with a heterosexual partner the contributions made by that partner would have resulted in a liability to pay a lesser weekly child support payment than she had to because she was in fact in a same sex relationship. She sought to use Article 8 as a springboard to a claim for discrimination under Article 14 in the enjoyment of her Convention rights. That was rejected by the House of Lords. Lord Bingham said:
“[5] 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.”
There is a passage to similar effect in the judgment of Lord Nicholls of Birkenhead (paragraph 17). Lord Walker of Gestingthorpe said that he was 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. However, he went on to say: “[87] 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. In the following paragraph he goes on to conclude that Ms M’s case in respect of her private life failed for similar reasons. The Claimants’ case[26]Mr Emello, who represented the Claimant, has considerable experience in litigation involving Article 8 and the Child Support Agency. He put the arguments effectively, but with realistic modesty. He accepted that at common law the Claimants had no negligence claim. He accepted that the common law was not to be developed by recourse to Article 8 so as to provide a remedy for maladministration and that it was not possible to extend the common law right to damages by recourse to Article 8. Rather, Mr Emello submitted, simply because there was no common law duty of care did not mean that the Claimants could not succeed in bringing a claim based on Article 8. If they were successful in the argument that Article 8 was engaged, the burden would then shift to the Defendant to justify its actions under Article 8.2. The Secretary of State would need to show that the measures adopted pursued a legitimate aim, that there was a pressing social need for them and that the actions were proportionate.[27]Mr Emello’s main contention was that while the legislation did not itself affect family or private life the application of the statutory framework might well do so. The complaint in the Claimants’ case, as he put it, was not that the statutory framework and the operation of the CSA was not compliant with the Claimants’ Article 8 rights. Rather, he submitted, their complaint was that the way in which the State had operated, or failed to operate the legislation, had resulted in infringements of their Article 8 rights. He invoked in support the dictum of the Commission in the Burrows and Logan cases and that of Wilkie J in Plumb. In his submission a sustained failure of the CSA over a substantial period violated the family and private life of the Claimants. The CSA was devised to secure family life. If the State chose not to apply the regime in an efficient manner it could be concluded that that would result in a breach of family life, the very thing which the regime set out to achieve. In his submission the Defendant had failed abysmally to operate the very scheme which was designed to secure family life. In consequence of the non-operation of the scheme, which had caused the Claimants a substantial loss, there was a breach of Article 8. If the scheme had been operated properly then, conversely, there would have been no breach. In the course of his submissions Mr De Mello distinguished cases such as Marcic, arguing that unlike Marcic there was no effective remedy in this case. The matter as pleaded here is that the Claimants were misled by the expectation that action would be taken, and if they had not been misled they would have contemplated taking judicial review. Mr De Mello also put the argument in terms of private life in as much as that concerns the protection of the moral and physical integrity of the individual.[28]In summary, then, the submission was that the Defendant had breached the Claimant’s family and private life while exercising its statutory duties, because it had prevented the Claimants from leading a normal family life. They were victims, as he put it, of maladministration and accordingly the Defendant had not accorded them respect for their family and private life. The Defendant had calculated the sums which were due to the Claimants’ mother but had failed thereafter to collect those sums. That resulted in the Claimants suffering hardship and interference with their family and private life. That failure to obtain arrears impinged in a significant degree, over a substantial period, on their family and private life. There was a positive obligation on the State to provide an effective system of support to a child in circumstances where the resident parent with care was unable to sue the non-resident parent through the ordinary courts. In this case the Defendant had positive obligations to enforce the private obligations of the father to pay maintenance arrears, but the Defendant had failed to undertake that obligation, resulting in the Claimants’ hardship. The breach of these positive obligations by the State caused the Claimants’ loss and that loss should be compensated by the payment of damages. 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. There is the gloss on this from the decision of the Court of Appeal in Anufrijeva. However, it is clear from that judgment that in as much as Article 8 is capable of imposing a positive duty on the State to provide support, especially where the welfare of children is at stake, the amount of support being contemplated is at a minimal level. That is evidenced by the reference to Article 3 of the Convention. Perhaps it is not surprising that Article 8 cannot be used in this way to found a right to economic benefit when, as Baroness Hale explained, the Convention is concerned with civil, not economic, rights.[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 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.[33]Conclusion Article 8 cannot be extended to found any claim for damages for the failure of the CSA properly to pursue the maintenance assessments which it had made against the Claimants’ father. A comprehensive statutory scheme has been put in place. There is the possibility of judicial review. On the Claimants’ own case the scheme is Convention compliant. There is no scope for contending that because of maladministration in an individual case Article 8 rights have been infringed. There is no basis on which the Claimants can show an interference with their family and private life as those are conceptualised in the Convention jurisprudence. That conclusion obviates consideration of other difficulties in the Claimants’ case, for example, how the compensation which would be payable to them is to be measured when in terms of the way the statutory scheme works the arrears accrue to the mother. In conclusion I refuse to set aside the strike out order of the District Judge.

Cited in 2 later judgments