Family Law

By Professor Nick Wikeley, University of Southampton.

The House of Lords (Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hutton, Lord Walker of Gestingthorpe and Lord Mance) confirmed on 28 June 2006 that magistrates' courts have only a very limited investigatory role when considering an application by the Child Support Agency (CSA) for a liability order against a non-resident parent who is in arrears with payments. A liability order is not an enforcement mechanism in itself, but allows the Secretary of State (via the CSA) to exercise a range of enforcement powers (eg distress, charging order, committal, etc). The magistrates' court must make a liability order where the Secretary of State applies for an order and the court is satisfied that the payments in question have become payable by the liable person and have not been paid" (Child Support Act 1991, s 33(3)). The central issue in this appeal was the scope of s 33(4), which provided that on such an application the court "shall not question the maintenance assessment under which the payments of child support maintenance fell to be made".

Lord Nicholls, giving the unanimous opinion of the House of Lords, stated that s 33(4) means that the court must proceed on the basis that the maintenance assessment was lawfully and properly made: "The court is precluded from questioning that assessment. It is precluded from questioning any aspect of the assessment. The magistrates' court function is to check that the assessment relates to the defendant brought before the court and that the payments in question have become payable and have not been paid. The court is not required to receive evidence that the assessment was made pursuant to an application satisfying the prerequisites set out in ss 4 to 6" (para 16). However, Lord Nicholls suggested that if there was an appeal pending before a tribunal against an assessment then the magistrates' court should consider whether it would be oppressive to make a liability order (para 33). Accordingly, s 33(4) was not an ouster clause. Any challenge to the maintenance assessment (now maintenance calculation) should be made through the statutory appeals machinery (by appeal to a tribunal and then the Child Support Commissioner). This interpretation of the role of the magistrates' court held good even though there was, according to the House of Lords, no effective right of appeal to a tribunal to challenge the Secretary of State's jurisdiction to make a maintenance assessment in the period between the coming into force of the Social Security Act 1998 and Child Support, Pensions and Social Security Act 2000 respectively. During this period the only remedy to challenge jurisdiction (as opposed to the amount of the assessment or its effective date) was by way of judicial review.