Friday, 14 September 2007

Update 6th of August 2007

This week two interesting attempts to kick the Child Support Agency into shape, one case on loopy experts, two on Hague, a money case and two illustrating how late in the day a children case can be rescued.

Rowley & Ors v SoS for the DWP (‘Resolution’ intervening) [2007] EWCA Civ 598 is a decision on a case where a mother sought damages for psychological disturbance and for economic loss flowing from negligence – that is the CSA’s failure to deal timeously with her application to collect, and subsequently to enforce, maintenance against the children’s father. She lost.
Cited in that judgment is R (Kehoe) v SoS for Work & Pensions [2005] UKHL 48 which was a claim from a mother in a similar position for damages under Article 13 for a breach of her and the children’s Article 6 rights. That claim failed at the House of Lords (Baroness Hale dissenting) and by coincidence was reported the week following Rowley, having been the subject of an application before the ECHR for admissibility to that court to argue Mrs Kehoe’s case notwithstanding her failure in the HoL. She won and will proceed to the ECHR.
It is, to my mind, important to remember that the two women were claiming wholly different relief.
The trial judge struck Mrs Rowley’s claim out, reasoning that it was bound to fail as a common law duty by the SoS – a necessary prerequisite of success – was inconsistent with the statutory scheme of the Child Support Act 1991. In reaching this conclusion he opined that he was driven to that conclusion by Kehoe.
In Kehoe the Lords had considered whether there was a free-standing justiciable right to which Article 6 could attach. It is trite law that Article 6 does not exist in a vacuum: an applicant can only insist on a fair trial if the national scheme of law allows the issue in question to be tried. All five Law Lords addressed the mother’s (and in the case of Baroness Hale, the children’s) right to enforce maintenance obligations against the father. Four found that she had no right because the statutory scheme had been designed to entirely replace the previous enforcement mechanisms of the common law right to child support against a parent. Baroness Hale found that such a right survived the 1991 Act. In doing so she made a distinction between the enforcement mechanisms (which she accepted had been entirely swept away by the Act) and the right to maintenance itself. This, she argued existed at common law long before legislation came along, but it was unenforceable until given effect, first by the ecclesiastical courts, then the Poor Laws and then matrimonial laws as they developed in the century prior to their replacement in 1991 (save for Schedule 1 of the Children Act 1989) And because that right persisted, she argued, Article 6 was engaged and because the CSA had been so incompetent, Mrs Kehoe was entitled to damages under Article 13. Except of course she was not as this was a 4-1 decision.
Taking the judgment of the Court of Appeal from the top, Dyson LJ recognised that CSA cases are overwhelmingly for pure economic loss. Accordingly he reasoned that it was necessary to consider the three means by which a litigant can succeed in establishing a liability in negligence for such a loss. These were contained in Barclays and were a) the assumption of responsibility/reliance test (after Hedley Byrne v Heller), b) the three-fold test (proximity/foreseeability/just and reasonable, after Caparo v Dickman) and the incremental test (which in this case was held to add nothing). The court rejected the first and third of these and accepted the first two parts of the Caparo test but in looking at the third, reasoned that it was highly relevant what other options Mrs Rowley had faced to avoid her plight. He cited with approval the comment of Hale LJ in A v Essex County Council [2003] EWCA Civ 1848 that “the important point is that a duty of care must not be inconsistent with the presumed intention of Parliament.”

At paragraph 66 of Rowley the trial judge’s error was spotted, in that the Dyson LJ commented:
The fact that a scheme is detailed and comprehensive so as to preclude any claim by the parent with care against the absent parent does not necessarily mean that a claim against the Secretary of State is also precluded. The question of the liability of the Secretary of State to a parent with care was not in issue in Kehoe.

He continued however:

But having regard to the nature of the complaints made by Mrs Kehoe, it would be surprising if the House of Lords had not considered whether the Secretary of State owed a common law duty of care to her...

though none of the noble Lords mentioned doing so. He went on:

... If Mrs Kehoe had a right of action in negligence against the Secretary of State, that would have been an answer to her claim, admittedly a different kind of answer to that given by the House of Lords... [who in fact gave no answer] ...the fact that no reference was made to the possibility of a claim for damages for negligence is of significance. Moreover, the... emphatic observation of Lord Brown is particularly important: “the only right now enjoyed by those in Mrs Kehoe’s position is to look to the CSA for the proper discharge of its public law obligations under the statute, a right which of course is itself sustainable under the courts’ supervisory jurisdiction.”

This seems to me, with due respect to the Court of Appeal, dangerous reasoning. The proper approach to Kehoe was surely to distinguish it and mention it no more. Citing what it did not say as authority for a finding on another issue surely cannot be right?

Dyson LJ then considered the putative fact that there is a route of appeal prescribed in the 1991 Act (as amended) i.e. to an appeal tribunal, and that from 1998 s46A of the Act provided that the decision of the SoS or tribunal where a route of appeal existed was final.

This is, with respect, a thoroughly bad point as that route (insofar as it was in force at all at the relevant times) concerned only decisions of the SoS. There is not, was not and never has been a means of complaining within the Act about the SoS’s failure to decide or to failure to act in accordance with a decision.

Dyson LJ might have been thought to have dealt with this by reference to the interest provisions of s40 (now penalty payments provisions of s41A) which he said provided the very compensation (together with ex gratia payments) that Mrs Rowley sought, to which he added that the mechanism of judicial review was available to an applicant to compel the CSA to act.

(He also mentioned that the Ombudsman service had a role but as that service was established independently of the 1991 Act adn for broader purposes, it is not clear to me how it can be relevant to whether the SoS might owe a duty. Paragraph 79 (that the Ombudsman existed in 1991 so Parliament must have thought he could act to protect applicants) is another rather unsatisfactory leap of deduction to my mind)

But despite what he said about the appeal and interest provisions, in paragraph 74 and 75 Dyson LJ accepted that the whole scheme would not cover all the losses caused to an applicant from all instances of the incompetence of the Agency but concludes that that is insufficient reason to find that a duty exists on the part of the SoS to deal with applications in good time.

Lord Reid in Dorset Yacht v Home Office [1970] AC 1004 described the law thus:

When Parliament confers a discretion... there may, and almost certainly will, be errors of judgment in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of such errors. But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred... Parliament cannot be supposed to have granted immunity to persons who do that... [the officers in question] were given orders which they negligently failed to carry out.

Could there be a better description of the CSA failing to process an application in good time or failing to take enforcement action against a non-payer? Is that not something which the SoS is obliged to do but simply does not do so?

Lord Browne-Wilkinson in his seminal judgment in X (Minors) v Bedfordshire CC [1995] 2 AC 933 played down the relevance of whether a public authority was or was not operating within its powers – he felt that that was an unhelpful importation of administrative law principles into tort – but made the distinction instead between areas of policy or discretion (from which no liability can arise) and those of operation (from which it can).

So in this case the CSA had made decisions (the discretion) but failed to do anything about them (operational matters) which would seem to fall outside of the protection Parliament would have intended per X (Minors). Alternatively, the CSA having made a decision from which the operational imperative was clear, and simply did not follow through so offending against Dorset Yacht.

The court (who were not taken to the passages I have cited) appears to have determined the case on the three bases at paragraph 72 i.e. i) that there is a right of appeal in the 1991 Act; ii) the Act contains ways of getting compensation for payments in arrear and iii) there’s always the Admin Court to get the SoS to get a move on. It did not appear to consider i) that the right of appeal is limited in scope and did not cover Mrs Rowley’s complaint; ii) that the provisions for payments in arrears could not conceivably have been designed to deal with the arrears induced by the CSA’s own lack of action and; iii) that the Admin Court is a very expensive and less available alternative to the County Court.

It has been suggested that it is relevant that the seven lawyers in the case were specialists in administrative law and tort, and none of the three judges known for family expertise. Furthermore Mrs Rowley’s team and the intervenor’s are said to have slipped up by admitting that there was no private law right to sue the SoS for breach of statutory duty. I cannot see the force in either of those points but perhaps the better focus for the way ahead is to hope that Mrs Kehoe succeeds in her rather more imaginative trip to the ECHR.

Re J & O 20th July 2007

I have not been able to find a reference or report for HHJ Cahill QC’s judgment while sitting in the High Court in Re J & O and would be grateful to anyone who can do so and circulate it. It should be a brief read and a salutatory one as it is a warning not to get too excited about every favourable expert.

Not knowing who it was I cannot libel them, but it seems that the mother’s psychologist was a loon who completely ignored the High Court judge’s findings and made an assessment of the mother in relation to contact with her children in the care of the local authority on the basis of what the mother said alone. This being very much more favourable than the court’s findings, the report was rather more positive than might otherwise have been expected. It was also unhesitatingly rejected as being useless, another report ordered, the matter put back and the mother’s case almost certainly weakened by the delay which was necessarily occasioned.

M v M [Roderick Wood J, HC] not to be confused with M v M (2007) [Sumner J] [2007] EWHC Fam 1404

The first of these is a reminder of how strictly our courts enforce the Hague Convention. For all that the mother was held to be extremely unreliable in contrast to the father, one might have thought that a pleading of ‘grave risk’ of return to Zimbabwe per Art 13(b) of the Convention, together with a finding that the children were actually settled per Art 12, and their expressing their objections to return would be enough for the mother to retain the children here despite her unlawful removal. It is perhaps relevant (though I have not read the report) that six months delay, during which the children would have become attached to their new home, was occasioned by bad advice in Zimbabwe so that the judge discounted the settlement and objection points.

In any event, the children were returned to that unhappy country and next time I have a client wanting to take a child on holiday to Syria or other unpopular destination I shall pray to be before R Wood J.

In Sumner J’s M v M the comment was made that the court was not aware of any case in which a child had been returned once the putatively abducting parent had proved that there was consent to the removal (that not being procured by fraud). One would hope that this would be so, as surely no-one should be afforded the opportunity to change their mind over so important a decision, but it could be a useful reminder.

Avis v Turner [2007] EWCA 748 nearly made it into the update two weeks ago and though I discussed it with our head of chambers I have not been able to digest it thoroughly. YET AGAIN, I invite someone to type a few lines on this most interesting subject. For those who are strangers to law and news pages, this is the case where the Trustee in Bankruptcy successfully went after a wife occupying a home under a Mesher or Martin order, for the part of the house which the Trustee (and the court) treated as belonging to her former spouse. This was many years after the divorce and would cause a substantial difference to the style of living of the former wife (if not actual hardship). I have deliberately not checked the facts of the terms of her occupation in the hope that I will irritate someone enough with my inaccuracy that they will respond with an explanation of the true position...

Re W (Children) [2007] EWCA 753 is a blissfully short judgment which does little other than to demonstrate that one may rescue a contact situation surprisingly late in the day, and also remind us that the family courts will take an unusually lenient approach to the admission of new information on appeal where it is in the interests of the children. Indeed, in giving leave, Wall J actually advised the father’s advisors what to bring to court.

The case concerned two young children who had abruptly ceased seeing their father following the breakdown of the parents’ relationship, and subsequent FLA proceedings. CAFCASS did a cursory job and in the view of the Court of Appeal, only began to consider contact with the father as an option in the witness box. Nevertheless his recommendation remained for limited letter-box contact.

Pending the oral hearing for the appeal – the only purpose of which seems to have been for Wall J to give the father an opportunity to succeed – the father procured data about a not-for-profit organisation which worked to re-establish contact. The court referred the father to that organisation and the case continues.