Not while most of the child support jurisdiction is left out

‘Family proceedings’ are defined by Matrimonial and Family Proceedings Act 1984 s 32 by reference to Senior Courts Act 1981 Sch 1 para 3; and this includes para 3(h): ‘all proceedings under Child Support Act 1991’. Since many of these proceedings (eg on appeal from Secretary of State decisions) go to tribunals set up under Tribunals, Courts and Enforcement Act 2007 it must be assumed that para 3(h) applies to child support proceedings within the jurisdiction of Senior Courts Act 1981 (with the exception, perhaps – though no admission is hereby made of such – of judicial review, which is the jealously guarded preserve of the Administrative Court). But what of other cases involving the Secretary of State (ie Child Support Agency) and family proceedings?

The administrative law case of Smith v Child Maintenance Enforcement Commission [2009] EWHC 3358 (Admin) HHJ Jarman sitting as a High Court judge illustrates the point; and shows – surely? – why a single family court is needed. Whether the procedural contortions of that case could recur with the new Family Court remains, since 22 April 2014, to be seen. What follows is unashamedly anecdotal: yes, I represented Mr Smith (whose above judicial review application failed); and in parallel I represented him in a county court where his matrimonial financial remedy proceedings (mostly long disposed of) limped on. The Child Maintenance and Enforcement Commission (the same people as had been the CSA) refused to join in the family proceedings but insisted they would only respond in the Administrative Court. The county court district judge failed to join CMEC in the family proceedings.

Mr Smith was looking after the couple’s children (following lengthy child support litigation which terminated in the House of Lords as Smith v Secretary of State for Work and Pensions & Anor [2006] UKHL 35; and lead ultimately to the present Child Maintenance and Other Payments Act 2008 (‘CS3’, gross incvome) scheme). He owed his former wife arrears of child support maintenance and she would have owed him child periodical payments (she had gone to Spain). They came to an agreement (explained in HHJ Jarman’s judgement) that he would pay her – through my firm’s client account – a capital sum in payment of the arrears and in exchange for her agreeing to call off the CMEC enforcement squad (as can be done by a receiving parent under Child Support Act 1991 s 4(5)).

He paid the money to me; I got her to sign a document for the CMEC; and as she received the cash she told the Commission to ignore the s 4(5) request ‘to cease acting’. Judge Jarman held that they were entitled to decide to continue their enforcement action and ignore the couple’s negotiated arrangement. He refused Mr Smith’s application for permission to apply for a declaration as to the meaning of the terms he had arrived at with Mrs Smith and, following that, a mandatory order addressed to the CMEC to stop enforcement.

Keep it in the Family Court

Today I have two more men in situations where I would have said (pre-22 April 2014) that they must seek a declaration in the High Court (possibly by application in the Administrative Court) under Civil Procedure Rules 1998 Part 8: namely that there is a court order or written agreement (Child Support Act 1991 s 4(10) in its pre-3 March 2003 form) which outlaws calculations to child support maintenance. Ten years and more later the CSA has decided to pursue both men for arrears, where both have in effect paid under count court orders (which the CSA ignore); and where the Secretary of State (CSA through the Treasury Solicitor) say the s 4(10) position post-dates 3 March 2003.

Family Procedure Rules 2010 Part 8 enables application to be made in the Family Court for a declaration in specific types of proceedings (including, as it happens by the Secretary of State under Child Support Act 1991 s 31L: not a well-used provision, I think). Mostly these are by the Part 19 procedure (in effect the old Rules of the Supreme Court 1965 originating summons procedure: for an example of the use of this CM v Exor of the Estate of EJ (deceased) and HM Coroner for the Southern District of London [2013] EWHC 1680 (Fam), where Cobb J made a declaration for extraction of blood from a dead woman). Matrimonial and Family Proceedings Act 1984 s 31E(1) enables an order to be made in the Family Court (s 31J lists particular powers, but does not exclude any: the county court has always been able, for example, to declare the existence of an implied trust in cohabitation disputes: a useful explanation of the jurisdiction is provided by Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387).

So why not a declaration application by one or both of these men, by the FPR 2010 Part 19 procedure, in the Family Court? Why not, indeed? Keep it in the Family Court, I say. To establish a clear declaration jurisdiction in the new court would be another tiny step to establishing its true, by still long distant, ‘single’-ness.

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