R(CS) 4/96

Mr. D. G. Rice	CCS/11/1994 	
15.5.95
Maintenance assessment - whether welfare of the child to be taken into account
Tribunal jurisdiction - question whether there was a court order in force - whether a question within the jurisdiction of a child support appeal tribunal
On 19 April 1993 the parent with care applied to the Secretary of State for a maintenance assessment in respect of his two children under s. 4 of the Child Support Act 1991. The child support officer decided that the absent parent was liable to pay child support maintenance at the rate of £48.04 per week with effect from 19 April 1993. The absent parent applied for a review which was carried out by a second child support officer who decided that the absent parent should pay £49.17 per week with effect from 21 April 1993. The absent parent appealed to a child support appeal tribunal who allowed her appeal on the ground that the child support officer had failed to take account of her ground rent. The absent parent then appealed to the Commissioner, contending that the maintenance assessment did not take proper account of the welfare of the children; she also maintained that since there was a court maintenance order in existence at the date of the application for child support maintenance there had been no jurisdiction to make a maintenance assessment (see para. 2 of the Schedule to the Child Support Act 1991 (Commencement No. 3 and Transitional Provisions) Order 1992, SI 1992 No. 2644.
Held that:
1.	section 2 of the Child Support Act 1991 only applies to the exercise of any discretionary powers conferred on the Secretary of State or a child support officer by the Act. Thus it has no application to the making of a maintenance assessment under section 11, which is not a matter of discretion but an absolute duty (para. 7);
2.	even in relation to discretionary matters, section 2 only requires the Secretary of State or a child support officer to have regard to the welfare of any child likely to be affected by his decision. Thus it is merely something to be taken into account but should not undermine the overall purpose of the Child Support Act, that is, to ensure that the absent parent makes proper financial provision for his or her children (para. 8);
3.	although the maintenance order had not been rescinded, it was without effect as the parent against whom the order had been made was now the parent with care. The order was therefore not “in force” within the meaning of paragraph 2 of the Schedule to the 1992 Order and the tribunal had jurisdiction to entertain the application for child support maintenance (para. 13).
The appeal was allowed, but the Commissioner substituted his own decision which was to the same effect.

DECISION OF THE CHILD SUPPORT COMMISSIONER
1.	My decision is that the decision of the child support appeal tribunal given on 18 January 1994 is erroneous in point of law, and accordingly I set it aside. As it is convenient that I give the decision that the tribunal should have given, I further decide that the appeal be remitted to the child support officer to recalculate the assessment, taking into account the amount of ground rent paid by the appellant (the absent parent).
2.	This is an appeal by the absent parent, brought with my leave out of time, against the decision of the child support appeal tribunal of 18 January 1994. In view of the complexity of the matter, I directed an oral hearing. At that hearing the absent parent was present, but unrepresented, whilst the child support officer appeared by Miss D. Thomas and the Secretary of State by Miss Ruth Riggs, both from the Solicitor’s Office of the Department of Social Security. The parent with care did not attend and was not represented.
3.	On 19 April 1993 a maintenance application form was received by the Secretary of State from the parent with care. He sought an assessment of maintenance in respect of his two children Alexander and Byron, aged 14 and eleven respectively, and named his ex-wife as the mother of the children and the absent parent. The application was made pursuant to section 4 of the Child Support Act 1991. On         21 April 1993 a maintenance enquiry form was sent to the absent parent, which she duly completed and returned on 6 May 1993. The parent with care stated that he lived with his new partner, had care of Alexander and Byron, and was in full-time work with a net weekly income of £376.13. The absent parent lived alone and was in full-time work with a net weekly income of £244.87.
4.	The application from the parent with care was then referred by the Secretary of State to a child support officer in accordance with section 11 of the Act. On 7 June 1993 the child support officer (the first child support officer) considered the facts and evidence which had been provided by the parent with care and the absent parent. The child support officer decided that the latter was liable to pay child support maintenance to the former in respect of the two children at the rate of £48.04 per week effectively from 19 April 1993. On 15 June 1993 the absent parent applied to the Secretary of State for a review by a second child support officer. Such a review was carried out and it was decided that the absent parent should pay £49.17 per week effectively from 21 April 1993. Thereupon the absent parent appealed against the latter decision to the tribunal. In the event, the tribunal allowed the appeal to the extent that they considered that the second child support officer had failed to deduct from the claimant’s earnings the amount of ground rent paid by her, and accordingly they directed a recalculation.
5.	The absent parent contends that the tribunal erred in two respects. First, they assumed a jurisdiction which was not theirs, and secondly they “failed properly to take into account the welfare of the children when making the initial decision as to whether to arrange the collection and enforcement of maintenance (s. 4.(2) and (3)); in deciding whether to arrange for the collection of child support maintenance (s.29 (1)); and latterly in the decision as to whether to make a Deduction from Earnings Order (s. 31(2)).”
6.	I will deal with the second contention first. The absent parent sought to rely on section 2 of the Child Support Act 1991, which reads as follows:
“2.	Where, in any case which falls to be dealt with under this Act, the Secretary of State or any child support officer is considering the exercise of any discretionary power conferred by this Act, he shall have regard to the welfare of any child likely to be affected by his decision”.
Now, all the matters specifically complained of by the absent parent were in fact acts solely within the jurisdiction of the Secretary of State and solely carried out by him. No responsibility attached to the child support officer. Criticism of the manner in which the Secretary of State exercised his discretionary powers is something which must be taken up with the Secretary of State.
7.	However, in her complaint of the way in which the child support legislation has been applied in her case, the absent parent suggested that the child support officer did not properly take into account the welfare of the child on a broad front. She pointed out that the maintenance assessments so reduced her standard of living that she was precluded from visiting and entertaining the children as much as would otherwise have been the case, and she further contended that the tension generated by the whole proceedings had caused the children to entertain a fear that she might commit suicide. She argued that these consequences were in conflict with the need to secure the welfare of the children. The short answer to this is that the welfare provision is only applicable in relation to the discretionary powers of the Secretary of State or any child support officer. But the making of a maintenance assessment under regulation 11 of the Child Support Act 1991 is an absolute duty, not a matter of discretion. Therefore section 2 has no application.
8.	But even in discretionary matters, it is to be noted that section 2 only provides that the Secretary of State or a child support officer “shall have regard” to the welfare of any child likely to be affected by his decision. The provision does not say that the welfare of the children shall be the paramount concern. It is merely something to be taken into account. The point is important in that the whole child support scheme necessarily imports financial detriment to the parent making the maintenance payment, and it is always open to that parent to contend that there will be indirect damage to the welfare of the children arising out of the exercise of a discretion, and if that were the only criterion, the scheme simply could not work. It follows, in my judgment, that consideration of the welfare of the children must take subject to provision by the absent parent of the maintenance provided	for by the formula laid down by the child support legislation. The overriding purpose of the Child Support Act, and the regulations made thereunder, is to ensure that the absent parent makes proper financial provision for his or her children, and the exercise of discretions cannot be circumscribed so as to impede that objective. The overall purpose cannot be undermined simply by the fact that under section 2 of the Act regard has to be paid to the welfare of children affected by a decision of the Secretary of State or a child support officer. Moreover, although they were dealing with a somewhat different point, this approach was implicitly adopted by the tribunal of Commissioners in CCS/2/1994.
9.	Accordingly, I am satisfied that the tribunal were right not to take into account the matters referred to above by the absent parent, but simply to determine whether or not the child support officer had correctly calculated the amount of maintenance payable by the absent parent. In the event, the tribunal were satisfied that the calculation was correct, subject only to a deduction in respect of rent. I agree with that conclusion. It follows, of course, that the child support officer’s decision had to be set aside and the matter remitted for recalculation.
10.	I now turn to the first ground of appeal relied upon by the absent parent, namely whether the child support officer, and hence the tribunal, had jurisdiction to make a maintenance award. Miss Thomas contended that there was no such jurisdiction, but this interpretation of the law was resisted by Miss Riggs on behalf of the Secretary of State. It raises a nice point. The crucial statutory provision is paragraph 2 of the Schedule to the Child Support Act 1991 (Commencement No. 3 and Transitional Provisions) Order 1992, SI 1992 No. 2644. This reads as follows:
“2. 	Subject to paragraph 4 below, during the transitional period [defined in paragraph 1 as “the period beginning with 5 April 1993 and ending with     6 April 1997”] no application under section 4 of the Act (application for child support maintenance) in relation to a qualifying child or qualifying children may be made at any time when-
(a)	there is in force a maintenance order or written maintenance agreement (being an agreement made before 5 April 1993) in respect of that qualifying child or those qualifying children and the absent parent; or
(b)	benefit is being paid to the parent with care of that child or those children”.
There is no question about benefit being paid in this case, so that the crucial issue is whether at the date when application was made for child support maintenance there was in force a maintenance order or maintenance agreement in respect of the children and the absent parent. It is not in dispute that there was a court order which had been made originally in 1984 and had been varied from time to time, the last variation being in 1988, and that that order was made with reference both to the children in this case and the absent parent. It provided inter alia that the parent with care would pay to the absent parent certain specified sums in relation to the children. Was this then a maintenance order within paragraph 2(a)? If it was, then the child support officer had no jurisdiction to make an order for child support maintenance.
11.	Miss Thomas argued that the court maintenance order did fall within paragraph 2(a). It was made in respect of the qualifying children and the absent parent and it had never been rescinded. There was therefore no jurisdiction to make the child support maintenance order. Miss Riggs, however, contended that although the court maintenance order was still in being, it was at the time the application was made for child support maintenance wholly a dead letter. The original order had been made on the basis that the children were to be with their mother, and that in consequence the father should make a maintenance payment in respect of them to their mother. However, subsequently the parties agreed that it would be in the interest of the children if they resided with their father, and, of course, no further payments were made under the maintenance order. Accordingly, by the time the application was made by the parent with care for child support maintenance, the court maintenance order was effectively dead. Although it still continued in existence, in the sense that it had never been formally rescinded, it had no effect, nor at the date of the application for child support maintenance could it be reasonably contemplated that it could have any effect. Any application to the court by the absent parent for maintenance from the parent with care in respect of the children had absolutely no chance of success. The cost of looking after the children was being borne by the parent with care, not by the absent parent. Miss Riggs reinforced her argument by reliance on the purpose underlying the jurisdictional restriction imposed by paragraph 2. There were not the resources to enable applications for child support maintenance to be dealt with in all cases where families had broken up and children were with one parent only, and accordingly provision was made to exclude, during a transitional period, those cases where there was a maintenance order in existence and where it could reasonably be envisaged that there was financial support for the child or children living with a single parent. However, in the present instance, clearly there was no such maintenance order in operation. There was no payment being made under any court order towards the maintenance of the children. The court order that existed had no effect. And if that order had first to be formally rescinded, in order to neutralise the effect of paragraph 2 of the schedule, there would be an inevitable time lag before any machinery could be put in hand to ensure a contribution from the absent parent towards the maintenance of the children. Accordingly, Miss Riggs argued, it was not to be contemplated that the absent parent could in the circumstances of this case rely on paragraph 2.
12.	Miss Thomas stressed that, whatever might be the underlying purpose of the provision, the plain fact was that there was a court maintenance order still in existence, and it mattered not that, at the time of the application for child support maintenance, it had no practical effect. She cited in support of this contention section 27(6)(b), section 29(4) and section 31 of the Matrimonial Causes Act 1973. She argued that the language of these sections clearly indicated that a court order until rescinded was in force. It might be suspended or varied, but unless or until revoked, it was still in force. She further contended that the time might easily come when the circumstances of the parties might change e.g. the children might return to live with their mother, and then effect would be given to the court order with or without modification.
13.	The point is a difficult one. However, on balance I consider that the argument of Miss Riggs conforms with the realities of the position. Manifestly, in determining whether there was jurisdiction, the relevant time was the date of application for child support maintenance. At that time there was a maintenance order in being in respect of the children and the absent parent, but one which was wholly without effect. Although it had not been formally rescinded, it had no bearing on the financial relationship of the parties, nor if there had been an application to the court at that particular time at least, could the order have been brought into operation so as to require a payment by the parent with care in respect of the children. Any other view would be to fly in the face of reality and to nullify the whole purpose underlying the statutory provision.
14.	It follows from what has been said above that the tribunal correctly concluded that there was jurisdiction to entertain the claim for child support maintenance. However, the tribunal adopted the wrong reasoning. They said:
“In our view ‘the absent parent’ as defined in section 3(2) Child Support Act 1991, is the appellant. The existing maintenance order made by the Salford County Court is an order in respect of the qualifying children and the respondent [i.e. the parent with care]. Consequently, there is no maintenance order in respect of the qualifying children and the absent parent. Regulation 2 of the Commencement and Transitional Provisions Order does not, therefore, apply and there was jurisdiction for the child support officer to make a maintenance assessment”.
There was in fact a maintenance order in existence covering the absent parent as well as the parent with care. It related to both parents. The difficulty that arose was that, at the date of the application for child support maintenance, it had become, as far as its effect was concerned, a dead letter. In view of the faulty reasoning relied upon by the tribunal, I must set aside their decision as being erroneous in point of law. However, it is unnecessary for me to remit the matter to a new tribunal for rehearing. I can conveniently substitute my own decision.
15.	For the reasons set out above, my decision is as recited in paragraph 1.

Date: 15 May 1995	(signed) Mr. D.G. Rice
Commissioner