Family Law Hub

Karoonian & Anor v CMEC [2012] EWCA Civ 1379

  • In a tweet: The correct way for CMEC (as was) to approach committal

    Summary: Both these cases involved non-resident parents ("NRP") who had been committed to prison (suspended on terms) for wilfully refusing or culpably neglecting to make child support payments.

    Mr Gibbons ("G") had been committed to prison on 3 August 2011 for 21 days suspended on the condition that he discharge arrears of child maintenance totalling £2,895 at the rate of £5 a week. He was the NRP of two children now aged 17 and 14. An application for maintenance had been made in May 2005 and a full assessment at the rate of £5 per week had been made in November 2005. It was then reduced to nil in February 2007 whilst G was self-employed on a low income but increased to £40 per week in May 2008 following a default maintenance decision. A liability order had been made in August 2009 for £2,895 and a summons issued in February 2011. Shortly before the first hearing, G had contacted the Child Maintenance and Enforcement Commission ("CMEC") stating he had been paying the parent with care ("PWC") directly and that he had failed to receive the liability order. Following several adjournments, G eventually received a suspended committal order.

    Mr Karoonian ("K") had been committed to prison on 14 February 2011 for 42 days suspended on that condition that he discharge arrears of child maintenance totalling £10,959.21 at the rate of £1,000 per month. K was the NRP in two cases. His first children were now aged 20 and 17. A maintenance application had been made in October 1997 but resulted in a nil assessment. A second claim for child maintenance was made by the mother of K's third child (now aged 15) in November 2000. K failed to submit any information about his income and, as a result, a default maintenance decision was made assessing his liability as £156.90 per week in respect of his older children and £125.25 per week in respect of his youngest child.

    K eventually disclosed information about his income in June 2001, stating that he had no fixed address and was self employed as a sole trader. By February 2002, he was claiming Jobseeker's Allowance and both assessments were reduced to nil. At that time, the arrears stood at £6,163.93 and £4,795.29 respectively. The arrears were temporarily suspended and no further action was taken until 2007 when both mothers were advised that a nil assessment would be made.

    A liability order was obtained in September 2009 in the sum of £10,959.21 representing the arrears owing on both cases from May 2001 until February 2002. A charging order was subsequently granted in February 2010. The summons for committal was issued in July 2010 but twice adjourned to give K the opportunity either to pay or to provide evidence as to why the default maintenance decision had been wrong. Finally, in February 2011, K received a suspended committal order.

    Both G and K raised many points in support of their appeals. However, at the heart of their arguments was the submission that the committal proceedings under the Child Support Act 1991 ("CSA 1991") were not compliant with Article 6 European Convention on Human Rights ("ECHR"). They argued that their cases were indistinguishable from the flawed judgment summons proceedings in the Family Division which had been dealt with in Mubarak v Mubarak [2001] 1 FLR 698. They also submitted that:

    • the threshold pre-requisites for bringing committal proceedings were not being routinely observed by CMEC and the courts,
    • that s.39A CSA 1991 (which sets out the statutory pre-conditions for obtaining a committal order) lacked the necessary certainty so as to be enforceable by way of committal proceedings which were of their very nature, criminal proceedings; and
    • that the proceedings had not been brought in reasonable time and that the wrong burden and standard of proof were being routinely applied by district judges.

    Held: Both appeals were allowed (on different grounds) and both committal orders were set aside.

    Ward LJ gave the leading judgment and began with a helpful reminder of how CSA 1991 operates. He also set out some of the procedural detail of the processes of collection and enforcement of child maintenance assessments. He distinguished between the initial steps to enforce assessments which did not involve the court (such as deduction from earnings orders) and then the more heavyweight remedies which required court intervention (such as distress, third party debt orders and committal orders). He highlighted that, before the court could intervene, it was necessary for CMEC to "crystallise" the maintenance arrears by obtaining a liability order in the magistrates' court. Noting that the magistrates would grant a liability order if satisfied that a NRP had not made the payments they should have made, he also commented that the magistrates did not interfere with the underlying maintenance assessment or calculation.

    Do any other enforcement methods have to be attempted before committal?
    Ward LJ looked in detail at s.39A CSA 1991. There was no dispute, he said, that committing a NRP to prison was a penal sanction and as such the committal proceedings had to be treated for Article 6 ECHR purposes as criminal in their nature.

    The first issue before the court was whether or not the pre-conditions to a committal application were being observed; in particular, did CMEC actually have to attempt to enforce the maintenance assessment or calculation by some other method (for example by obtaining a charging order or third party debt order) before applying for a NRP committal to prison or whether it was sufficient for CMEC to simply consider whether other enforcement options might be appropriate.

    CMEC's position was that s.39A CSA 1991 demanded a common-sense approach. Why should time and money be wasted in pursuing fruitless charging orders if it was clear that the only effective sanction would be a committal order? G and K's position was that other enforcement methods had to be attempted first and that committal had to be a measure of last resort.

    Ward LJ agreed with G and K. All the evidence, he said, pointed towards the need for CMEC to have attempted at least one other enforcement method before applying for a committal order. He said:

    "I do not find this an unwelcome conclusion. The scheme sets out a hierarchy of steps to take to enforce payment. I do not find it inconsistent with such a scheme that all steps must be taken before the last resort is had to imprisonment or disqualification. That the distress may be wasted may be the price to pay before depriving the NRP of his liberty."

    As no other enforcement methods had been attempted against G, Ward LJ found that the necessary pre-conditions had not been satisfied in his case and therefore allowed G's appeal on that ground alone.

    However, in K's case, the pre-condition had been satisfied because a charging order had been obtained.

    Was the law sufficiently clear to have enabled G and K to have foreseen the consequences of their failure to pay child support?
    Confirming that the statutory provisions had been formulated with sufficient precision, and it was quite clear what facts needed to be established, Ward LJ rejected the submissions advanced by G and K that there was no "certain temporal focus for the court's enquiry".

    Ward LJ provided clarification (insofar as it was needed) that if, following a maintenance assessment or calculation, the NRP did not make any child support payments, there was no risk of him or her being committed to prison at that stage. In order for committal to be a realistic prospect, a liability order was required to "crystallise" the debt and raise a fresh obligation to make the payments due. A NRP's wilful refusal or culpable neglect to make payments after the liability order is made was what lead to committal.

    The need for a hearing within a reasonable time
    Under Article 6 ECHR, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

    K argued that there was a potential Article 6 ECHR violation because the relevant period for "reasonable time" in committal proceedings had to start on the date of the maintenance assessment actually being made; this was because a NRP could not challenge the maintenance assessment or liability within the committal proceedings.

    Again, Ward LJ rejected this. He stated that the issue was the length of time between the "laying of the charge" and its determination. The period between the maintenance assessment being made and the summons being issued was irrelevant for the purposes of fixing a "reasonable time". No committal proceedings could be brought before there was a liability and the charge was not laid until the committal summons was issued.

    Ward LJ noted that in K's case, the committal summons had been issued on 2 July 2010. Several adjournments had taken place either for K's convenience or at his request. The committal hearing took place on 14 February 2011. Seven months was not an unreasonable amount of time.

    How does the court decide between committal to prison or disqualification from driving?
    S.39A(2) CSA 1991 gives the court the power to consider whether committal or disqualification from driving is the more appropriate sanction. Ward LJ confirmed that there is no express guidance as to which is the more preferable sanction (although he noted that it is a mandatory requirement for the court to check whether the NRP needs a driving licence to earn his living).

    Highlighting that deprivation of liberty must always be an order of last resort, Ward LJ reminded practitioners (and judges) that a committal order had to be made with good reason and a NRP was entitled to know why a driving ban was being rejected and why imprisonment was more appropriate.

    In G's case, Ward LJ could not criticise the district judge's conclusion that a committal order was appropriate as the district judge had expressly considered (and rejected) a driving ban.

    In K's case, the district judge had not considered the possibility of disqualifying K from driving (for example, the district judge had not made the mandatory enquiry as to K's need for a driving licence). That Ward LJ said was an error and the committal order should therefore be set aside.

    The presumption of innocence and the burden and standard of proof: does s. 39A CSA 1991 comply with Article 6?
    Ward LJ rejected the arguments raised that s.39A CSA 1991 did not comply with Article 6 ECHR. Nothing within s.39A CSA 1991, he said, deprived a NRP of the presumption of his or her innocence and CMEC had accepted that the onus of proof fell on them to prove the facts beyond reasonable doubt.

    The compliance of the practice and procedure of committal proceedings with the right to a fair trial
    This was a particularly interesting part of Ward LJ's judgment because he looked at what it actually happening in practice in courts up and down the land.

    Ward LJ summarised the anecdotal evidence the parties had been asked to present to the court:

    • there were no written procedures or official guidance about the committal process;
    • CMEC usually sent a warning letter informing the NRP that proceedings for committal or disqualification might be taken if payment of arrears was not made;
    • if the debt remained unpaid, CMEC might issue a summons on Form CSF 874 (a non-statutory form);
    • the form of the liability order, the committal order and the disqualification order were prescribed by certain regulations which in turn contemplated the court inquiring into the NRP's conduct, means and livelihood and that this inquiry was an integral part of the committal hearing;
    • the summons for committal in the magistrates' court was invariably served by ordinary post unlike committal proceedings in the High Court or county court which were required to be served personally;
    • the High Court and county court also ensured that the claim form contained a prominent notice stating the possible consequences of the court making a committal order and of the respondent not attending the hearing. In the magistrates' court, a covering letter was sent with the summons warning the NRP that non-attendance could result in a warrant for his or her arrest;
    • in the High Court and county court, the claim form set out in full the grounds on which the committal application was being made and identified, separately and numerically, each and every act of contempt, including, the date of each act; and
    • whilst the information required by the magistrates' court in support of a committal application was adequate, no evidence or supporting documents seem to be served and the practice had developed that the presenting officer from CMEC simply outlined the debt owed by the NRP, with the court then inquiring into both the NRP's means and conduct. CMEC provided no evidence about the NRP's means.

    It was this last point that G and K both contended meant that the procedure under s.39A CSA 1991 did not guarantee a fair trial under Article 6 ECHR on substantially the same grounds as in Mubarak v Mubarak [2001].

    In Mubarak v Mubarak [2001], the issue was whether the Family Division's judgment summons procedure complied with Article 6 ECHR. The husband (who had been at the wrong end of a judgment summons order) had successfully argued that applications for judgment summons under the Debtors Act 1869 should be classified as criminal proceedings for ECHR purposes. Further, he successfully argued that the judgment summons procedure was not ECHR compliant as a person who is facing a criminal charge should not be cross-examined on oath as part of the same proceedings and as part of the process of gathering evidence for the charge against him.

    Ward LJ rejected any arguments from CMEC that Mubarak v Mubarak [2001] could be distinguished.

    The crux of the problem was that CMEC routinely failed to investigate the NRP's means prior to the committal hearing. Indeed, there were few rules and no common practice requiring CMEC to provide evidence of a NRP's means. They simply relied on the court getting the NRP into the witness box to make enquiries about both his means and his conduct.

    Ward LJ made clear that the NRP's conduct and the NRP's means were both facts that CMEC had to prove. What CMEC could no longer do, Ward LJ said, was to have little or no evidence as to a NRP's means but then get the NRP into the witness box to explain himself. This was "impermissible muddling up". A NRP could not be required to incriminate himself yet having the means inquiry a part of the committal hearing effectively meant the NRP did just that by compelling the NRP to prove the against him- or herself.

    What was permissible was for CMEC to enquire into the NRP's means and, having established that the NRP did have the means to pay the child maintenance due, then to go on to consider the NRP's conduct. CMEC had to give some evidence that the NRP either had now or had had the means to pay the child support due so that the NRP had a choice: either submit there was no case to answer or accept the evidence and call further evidence in support of his or her own case.

    Due to the way in which the committal summons was framed, the failure to fairly provide evidence of the material facts and because of the muddling up of the means inquiry and the committal itself, Ward LJ found that the procedures adopted by CMEC were not compliant with Article 6 ECHR. He concluded that both orders for committal should be set aside.

    Although satisfied that this was the only conclusion he could reach reach, Ward LJ said he did so with reluctance:

    "Without the carrot – or the stick - of commitment the Commission's chances of recovering arrears of child support are very significantly reduced, if not almost completely emasculated. That is a most unsatisfactory state of affairs."

    It was not all bad news for CMEC though as Ward LJ highlighted that the situation could easily be remedied by simply distinguishing between a means enquiry and the committal proceedings. Adopting rules analogous to those in the High Court and county court for committal proceedings would remove the anomalies; none of this, he said, would require much time or difficulty to implement.

    There were two final points that Ward LJ had to deal with. In relation to G, his sentence of imprisonment had been suspended on condition that he pay off the arrears of £2,895 at the rate of £5 per week. It does not take much to work out that on that basis, it would take him 579 weeks to discharge the arrears during which time he would have the threat of imprisonment hanging over his head. Ward LJ said that this was an unreasonable and disproportionate penalty. Given a sentence of imprisonment would not be suspended for more than two years in the criminal courts, for the sake of consistency it was held that the upper limit of suspension should rarely exceed two years (although of course nothing prevents CMEC from applying for a further committal order to recover any outstanding arrears thereafter).

    In relation to K's appeal, K had also complained that no consideration had been given to the interests of his children. He relief on R (on the application of Aldous) v Dartford Magistrates Court and Gravesham Borough Council [2010] EWHC 1919 (Admin) in which it was observed that:

    "The existence of children cannot of course keep a person out of prison who should properly be sent to prison, but a sentencing court needs to be able to bear in mind what the effect on the children will be and, if there are children, and if the court does not have the information it needs in order to assess the effect of the parent's imprisonment on them, then the court must make enquiries so that it is properly informed."

    Ward LJ rejected K's submission. Admitting that the court should not be blind to the effect of imprisoning a parent on a child, in this case he said it was clear that the children's interests in receiving child support payments to which they were entitled to benefit from were served by imposing a committal order.

    Finally, we turn to a slight divergence in opinion between the judges. Lord Justice Richards agreed with Ward LJ that the appeals should be allowed and the commitment orders should be discharged. And although he agreed with the bulk of Ward LJ's judgment, he had some reservations concerning the general compliance of the practice and procedure of the committal proceedings with the right to a fair trial

    He considered that, provided that the burden and standard of proof and the need for procedural fairness were borne clearly in mind, there was no inherent objection to considering the NRP's means and the issue of wilful default or culpable neglect in a single hearing. Mubarak v Mubarak [2001], he said, did not lay down any general rule that issues of means and conduct could not be considered together.

    Comment

    With the number of committal orders having increased from 230 in 2004/5 to 1050 in 2010/11, the impact of this case on the ability of CMEC effectively to collect arrears of child maintenance will be huge.

    With headlines such as "No Prison for Parents who Don't Pay" (and that was in the legal press), you can see why this case came to the fore last month. But, as usual, ignore the headlines because that's not what the judges were saying – in fact, Lord Justice Ward expressly endorses the need for committal proceedings to be the carrot or the stick. It is the procedure which needs adjusting (and which is Article 6 non-compliant) rather than the sanction itself. How fast the adjustments are made is anyone's guess though.

Case note, published: 14/11/2012

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Published: 14/11/2012

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