CASE OF KEHOE v. THE UNITED KINGDOM
(Application no. 2010/06)
17 June 2008
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kehoe v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
Päivi Hirvelä, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 27 May 2008,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 2010/06) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Irish nationals, Ms Mary Kehoe ("the applicant") and her four children on 12 January 2006.
2. The applicant was represented by Ms Whitfield, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms K. McCleery of the Foreign and Commonwealth Office, London.
3. The applicant alleged that there had been unreasonable delay in enforcing the financial obligations of her ex-partner in respect of child support and that she had had no access to court in this regard, invoking Articles 6 and 13 of the Convention.
4. By a decision of 26 June 2007, the Court declared the application partly admissible as regarded the applicant’s complaint of lack of access to court, inadmissible as regarded her children.
5. The applicant and the Government each filed further written observations (Rule 59 § 1). The applicant replied in writing to the Government’s observations. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).
THE CIRCUMSTANCES OF THE CASE
6. The applicant married Mr K in 1983. They had four children. The marriage broke down and the applicant applied for divorce. Mr K left the marital home at the beginning of 1994. The children remained with the applicant who, in December 1993, had applied to the Child Support Agency (“the CSA”) to obtain financial support from their father for bringing up the children. There had been an oral agreement that he pay GBP 150 maintenance per week towards the support of the children. According to the applicant, some payments had been voluntarily made but they had rapidly ceased. She only had a limited income from a part-time evening job and child benefit and even when she obtained full-time secretarial employment in 1994 she was struggling financially.
7. The CSA did not send a Maintenance Enquiry Form (MEF) to Mr K until 25 May 1995, which resulted in the applicant losing the opportunity to receive maintenance for the period prior to that date.
8. On 13 July 1995 Mr K returned the MEF accepting paternity. Insufficient information was given to allow a full maintenance assessment to be made. An interim maintenance assessment (IMA) was issued with effect from 5 October 1995.
9. Mr K’s liability changed many times after that date, inter alia as his employment changed and it proved difficult to obtain information.
10. According to the summary in the later High Court judgment, the key features were as follows:
11. By March 1996 arrears of GBP 4,244 had accumulated.
12. The CSA negotiated an agreement with Mr K that he would pay under the IMA, GBP 124.33 per week plus GBP 25.67 towards arrears.
13. On 21 June 1996 a liability order was applied for because he had breached the agreement. The order was discontinued when regular payments were resumed.
14. On 1 February 1999 the Secretary of State issued an apology to the applicant for the inconvenience caused by the delay in issuing the MEF and paid her GBP 10,381.14, comprising the amount of child support she might have received up to that point if the MEF had been sent at the proper time, namely GBP 8,632.04 (inclusive of interest), and GBP 1,749.10 ex gratia compensation.
15. On 1 September 1999, the CSA issued a further apology about the service which she had received and made an additional "consolatory" compensation payment of GBP 110.
16. In December 1999 and April 2000, the CSA paid the arrears not yet received plus interest for the delay.
17. On 15 December 2000 a second application for a liability order was granted for GBP 6,329.24, covering arrears from May 1995 to 11 September 2000. Payments were not made and bailiffs were instructed to levy distress, but were unsuccessful.
18. On 31 January 2001 the liability order was registered as a county court debt. Consideration was given to a committal order but the policy was to use this only as a last resort.
19. On 9 October 2001 a deduction of earnings order (EO) was issued for GBP 608.80 per month, increased to GBP 889.06 on 21 February 2002. Following this Mr K again stopped paying. EOs on the company of which he was a director proved unsuccessful. In an interview with the CSA Mr K alleged that he had stopped paying as two of the qualifying children had been living with him for five years and a third had moved in recently, while the fourth had gone to live with the mother in Spain. The CSA was aware of the changed circumstances of the children and had taken this into account in assessments. Having established that the applicant was permanently resident in Spain the case was closed on 13 January 2003 with effect from 30 September 2002. Arrears remained due however and the CSA continued to seek to enforce them.
20. On 8 November 2002 a committal hearing was held. Mr K admitted owing GBP 6,329.24 for the period 25 May 1995 to 11 September 2000 and GBP 13,859.12 for the period 12 September 2000 until 4 September 2002. He agreed to pay the former sum by 8 July 2003 and the latter sum at GBP 500 per month from November 2002.
21. Payment was not made in November 2002. He was contacted on 10 December 2002 and told that unless payment was made by 13 December 2002 committal proceedings would be restored. A payment of GBP 1,500 was made on 30 December 2002.
22. The applicant brought proceedings under the Human Rights Act 1998 (HRA), seeking a declaration that the provisions of the Child Support Act 1991 were incompatible with Article 6 § 1 of the Convention as they denied a parent with care of children access to court in connection with disputes as to whether the absent parent had paid or ought to pay sums due under a maintenance assessment or as to the manner in which the obligations under the maintenance assessment should be enforced and seeking damages under section 7 of the HRA based on the CSA’s undue delay after 2 October 2000 in taking steps to enforce the child maintenance assessments obtained in this case. She maintained that she had expended much energy and suffered much stress in attempting to get the CSA to obtain payments for her and had been repeatedly told that the dispute was between the CSA and Mr K and did not involve herself; she believed that she would not have received a fraction of the money eventually paid if she had not continually pressurised the CSA and complained of their inaction and inability to obtain maintenance for her.
23. On 16 May 2003, Mr Justice Wall found that the applicant had a civil right to seek maintenance for her children from their father, such right being an autonomous substantive right, plainly recognised in English law and provided for by domestic legislation. The exclusion of the claimant from the enforcement process imposed a procedural bar on the prosecution/enforcement of the claim which engaged Article 6. He found that the court was given jurisdiction by the HRA such that if the CSA had acted in any way incompatible with the claimant’s Article 6 rights she could bring an action for damages under section 7, while any decision by the CSA not to enforce or any failure to enforce timeously or effectively would be subject to challenge by judicial review. On this basis the scheme under the 1991 Act was HRA compliant and she was not entitled to a declaration of incompatibility. He issued directions with a view to an eventual trial as to whether there had been undue delay and to determine any damages. This part of the order was stayed pending appeal to the Court of Appeal.
24. On 5 March 2004, the Court of Appeal upheld the Secretary of State’s appeal and dismissed the applicant’s cross-appeal. It held, as summarised in the head note:
"that the Child Support Act 1991 introduced a new child support system, its self- contained nature being a critical feature of its effect in domestic law; that the scheme was built firmly on the central premise that the assessment, collection and enforcement of maintenance orders should be in the hands of the Child Support Agency and consequentially it redefined the rights and obligations of parents and those caring for children; that there was no justification for departing from the general principle that Article 6 was concerned only with disputes recognisable as such under domestic law and founded on the existence of an underlying right; that under the scheme the applicant had no legal right in domestic law to a child maintenance payment of any particular amount or at all; and that, accordingly, she was unable to assert that she had an arguable civil right under Article 6 which entitled her to a determination by a court.”
25. The Court of Appeal further held that the judge had erred in finding that she had a right to damages to supplement her limited right of judicial review; damages could only be awarded where the Act was incompatible with Article 6, and the Act did not become incompatible because of a lack of entitlement to damages for its incompatibility.
26. On 14 July 2005, the House of Lords, by a majority of four to one, rejected the applicant’s appeal.
27. Lord Bingham of Cornhill stated in rejecting the appeal:
" That a caring parent in the position of Mrs <K.> was given no right of recovering or enforcing a claim to child maintenance against an absent or non-resident parent was not a lacuna or inadvertent omission in the 1991 Act: it was the essence of the new scheme, a deliberate departure from the regime which had previously obtained. The merits of that scheme are not for the House in its judicial capacity to evaluate. But plainly the scheme did not lack a coherent rationale. The state has an interest, most directly in cases where public funds are disbursed, but also more generally that children should be adequately supported. It might well be thought that a single professional agency, with the resources of the state behind it and an array of powers at its command, would be more consistent in assessing and more effective and economical in enforcing payment than individual parents acting in a random and uncoordinated way. It might also be thought that the interposition of an independent, neutral, official body would reduce the acrimony which had all too frequently characterised applications for child maintenance by caring against absent or non-resident parents in the past which, however understandable in the aftermath of a fractured relationship, rarely enured to the benefit of the children. For better or worse, the process was deliberately changed.
 The 1991 Act cannot in my opinion be interpreted as conferring any right on a parent in the position of Mrs <K>. She is of course the person to whom child maintenance will be paid, directly or indirectly and subject to any deduction of benefit, as the person who incurs the expense of bringing up the children. But the right which she had enjoyed under the former legislation was removed, and the right to recover the maintenance has been vested in the CSA..."
28. Baroness Hale of Richmond, dissenting, found that prior to the 1991 Act a father had, at common law, a duty to maintain his legitimate minor children which had always been unenforceable in the courts. However it had been expanded and reinforced by two kinds of statutory obligation: a private law obligation to make the payments ordered by a court under various statutes (e.g. matrimonial and family proceedings) and a public law obligation to reimburse the State for benefits paid for the children. The new scheme which transferred the task of assessing and collecting maintenance from the courts did not however remove these obligations or the corresponding right of the child to benefit from them. The obligation of a parent to maintain his children and the right of the children to have the benefit of the parental obligation to maintain them were not wholly contained in the 1991 Act. The 1991 Act left all previous law intact save precluding courts from using their powers in cases where the CSA was supposed to do it for them. Accordingly the children’s civil right to parental support survived the 1991 Act which acted not only as a limit to the extent of the obligation but also as a limit to its enforcement. Article 6 was therefore engaged.
29. In assessing whether the limitations on enforcement of those rights was compatible with the Convention, Baroness Hale noted that there was undoubtedly a legitimate aim. Although the non-enforceability by the custodial parent in non-benefit cases was not a necessary feature of comparable child support schemes elsewhere in the common law world, the matter had been debated. That possibility was rejected as the Government did not want to create one law for the rich and one for the poor. There were also cases where the parent with care was sometimes in receipt of benefits and at other times not. She concluded that this was just the sort of policy choice in a socio-economic field which the courts were usually prepared to leave to the judgment of Parliament, which was best able to make the decision as to which scheme would most effectively secure the recognition and enforcement of the children’s rights generally. It would be difficult to hold that the scheme as a whole was incompatible with the children’s rights to a speedy determination and enforcement of their claims. That said, she considered that the public authority charged by Parliament with securing those rights was under a duty to act compliantly with Article 6. She would therefore have allowed the appeal and restored Mr Justice Wall’s order.
30. Meanwhile, all money owed to the applicant was paid by 27 April 2005 and her case was closed.
I. THE SCOPE OF THE CASE
31. The Court recalls that in its decision on admissibility dated 27 June 2007 it decided to join to the merits the Government’s objection concerning non-exhaustion of domestic remedies in respect of the applicant’s complaint that she had no effective access to court concerning failures or omissions of the CSA or Secretary of State; while rejecting the remainder of the case as inadmissible, it declared admissible the application insofar as it concerned the applicant’s complaints about delays by the CSA in paying maintenance for the periods from May 1995 to 5 November 1996 and from 18 August 1999 to 27 April 2005.
II. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
32. The Government invited the Court to reconsider its ruling on the six months rule. They submitted that the running of time should not be regarded as delayed until the payment of all outstanding benefits, arguing that where the applicant complained of discrete periods of failure to pay maintenance, she had to bring her complaints to Strasbourg within six months of the end of those periods. The earlier period at the very least was out of time (May 1995 to 5 November 1996). Since Article 6 did not apply directly to the CSA, the case could not be treated as analogous to Article 6 delay cases where the applicant could claim in respect of the totality of the time taken in the proceedings.
33. The Government also raised the objection that the applicant had no arguable civil right to receive maintenance. They disputed that they had ever accepted that such a right existed, only that she had a right to apply to the CSA for an assessment of Mr K’s obligations to pay maintenance, in respect of which the Court had held that she was no longer a victim. The legislation in fact ensured that enforcement of maintenance obligations was a discretionary matter for the CSA, subject to public law supervision. The discretionary nature of enforcement of maintenance obligations distinguished this case from rights to social security benefits, such that there was no individual economic right flowing from the specific rules laid down in a statute. Although the right to apply for an assessment was a civil right, the enforcement of maintenance obligations fell within public law. The domestic courts’ rulings on the issue indicated that there should be strong reasons before this Court departed from the decision that the applicant enjoyed no civil right.
34. The applicant replied that the Court’s rejection of the Government’s objections in its decision on admissibility was entirely correct and should not be revisited. She considered that the Government’s approach to the “civil right” issue was an exercise in splitting hairs, making fine distinctions which ignored the reality of the situation.
35. The Court considers however that it is unnecessary to rule again on these matters for the reasons set out below.
III. ALLEGED VIOLATIONS OF ARTICLES 6 AND 13 OF THE CONVENTION
A. The parties’ submissions
36. The applicant submitted that it was not compatible with Article 6 to remove her from the enforcement process, in particular as she was the only one with an interest in the dispute. The scheme as set up was inefficient and ineffective, the CSA showing itself incapable of taking directed or consistent enforcement actions, being fobbed off readily by the unsophisticated tactics of Mr. K. This placed an excessive and disproportionate burden on her and deprived her of the "essence" of her right, in which respect she relied on Philis v. Greece (no. 1) (judgment of 27 August 1991, Series A no. 209).
37. She argued that the Government’s approach was formalistic and unreal and that there was no good reason for denying individuals such as the applicant the option of enforcing their claims directly against the absent parent, as was the case in other jurisdictions such as Australia and New Zealand. The effect of the domestic system of enforcement was that the applicant had no ability to control the steps that were taken to enforce, despite the fact that she was the person with the greatest knowledge of Mr K.’s affairs and despite the fact that she and her children were the only persons with a financial interest. The comparative material showed that it was perfectly possible and administratively simple to set up a system with the characteristics of the CSA but leaving the parent with care with the option of enforcing it.
38. As regarded the possibility of applying for judicial review to secure enforcement of maintenance payments within a reasonable time, she argued that being required to make an application every time the CSA failed to act effectively was not a practical option. Further, since judicial review only became possible or relevant once there had been a breach of duty by the public body concerned, the applicant had no ability to apply to a court to prevent any unreasonable delay. It was highly unlikely that the Administrative Court would, in an order of mandamus, require the CSA to take any particular step e.g. to apply for a charging order or a committal order. Any relief would have been general and would not have ensured that the actions taken by the CSA were in fact appropriate. As there was an absence of a power to award damages in such proceedings, there was no right to just satisfaction in terms of the unacceptable past delay that axiomatically must have already occurred.
39. The applicant submitted under Article 13 that she had no effective remedy against the delays of the CSA and no entitlement to bring an action in damages or recover interest in respect of delays. Her ability to force the CSA to take enforcement action by way of judicial review did not give her any remedy in respect of delay that had already occurred.
40. The Government submitted that the remedy of judicial review provided her with an effective means of vindicating her complaints of delay in the enforcement process. Undue delay by a governmental body in carrying out its statutory functions was a ground of legal challenge as in R v. Secretary of State for the Home Department ex parte Mersin ( INLR 511), where delays in administrative handling of an asylum claim were found unlawful, or in cases where delay amounted to the failure to discharge a statutory duty, a breach of statutory duty or constituted a breach of legitimate expectations giving rise to procedural impropriety. This applicant had not brought any application for judicial review; if she had, and the courts had found the CSA had delayed unreasonably, she could have obtained a mandatory order requiring the CSA to act expeditiously. There would have been no need – in law or practice – to return to court periodically. However, even if the remedy did have to be invoked more than once over a lengthy period, that would not demonstrate any bar on access to court. Two of the judges in the House of Lords had held that she had a clear right of recourse in judicial review. It was not open to the applicant to do nothing for more than eight years and then complain that judicial review did not permit her to recover damages for the period during which she had taken no action. It was not relevant in any case that damages were not available, as Article 6 provided for a right of access to the courts, not any right to a particular remedy under domestic law once access to court had been secured. It did not guarantee provision of a financial claim against public authorities where loss might have been suffered as a result of State action.
41. Furthermore the Government submitted that the new scheme constituted a proportionate restriction on the applicant’s right of access to court as it sought to improve the system of recovery of maintenance from non-resident parents, relieved parents with custody of having to proceed in their own names, allowed an administrative recovery scheme which could impose deductions of earnings orders without judicial decision and relieved taxpayers of the burden of subsidising the maintenance obligations of defaulting parents. In brief, it was a complex socio-economic decision which fell within the margin of appreciation of the Contracting State.
42. Nor had there in fact been any unreasonable delays by the CSA. It could not be assumed that the applicant would have been better served by an alternative procedure, enforcement of financial orders in family proceedings being notoriously difficult. Experience showed that a consensual approach was often far more effective in delivering money to the parent with care; in the vast majority of cases this was more successful than simply issuing court proceedings as soon as there was a default. A careful examination of the payment history in this case showed no unreasonable behaviour or delay by the CSA but rather a diligent, conscientious discharge of its functions in the face of cunning recalcitrance by the applicant’s former partner.
43. As regarded Article 13, the Government submitted that judicial review was an effective remedy to end delay even if not to provide financial redress. There was in any event no right to a remedy to challenge a legislative provision while after 2 October 2000 the applicant could and did raise her complaints in HRA proceedings albeit she was unsuccessful.
B. The Court’s assessment
44. The Court recalls that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Golder v. the United Kingdom judgment of 21 February 1975, Series A no.18, p. 18, § 36). This right to a court “extends only to ‘contestations’ (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; Article 6 § 1 does not in itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States” (see, inter alia, James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, pp. 46-47, § 81, and Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p.16, § 36). Article 6 § 1 will however apply to disputes of a “genuine and serious nature” concerning the actual existence of a right as well as to the scope or manner in which it is exercised (see Benthem v. the Netherlands judgment of 23 October 1985, Series A no. 97, p. 15, § 32).
45. However, this right is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, p. 24, § 57; Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 44, ECHR 2001 - VIII).
46. In the present case, the applicant argued that she had a civil right to the enforcement of maintenance assessments made by the CSA in respect of Mr. K and that she was denied effective access to court to secure such enforcement or to seek redress for delays on the part of the CSA in enforcing maintenance payments. The Government contended that, under the scheme introduced by the 1991 Act, the applicant enjoyed no such right and that the remedy of judicial review provided her with an effective means of vindicating her complaints of delay in the enforcement process. The Court does not find it necessary to resolve the dispute as to existence of a civil right since, even assuming that the applicant enjoyed such a right, the central question remains whether her effective access to court was restricted or reduced in such a way that the very essence of the right was impaired.
47. The Court notes that the applicant does not dispute that it was possible for her to bring judicial review proceedings in the courts against the CSA and/or the Secretary of State concerning alleged failure properly to enforce the payment by Mr K of child support. The parties’ differ as to whether this procedure would afford effective or practical solutions to the problem. While the applicant doubted that a domestic court would do more than issue a general order of mandamus for the CSA/Secretary of State to comply with their duty, she did not rule out the possibility of applying for specific measures to be included, whether by way of an order for attachment of earnings or for committal, in which context it would have been open to the courts, if they considered it appropriate, to add specific directions. It is true that the courts would not have awarded damages for any alleged periods in the past during which the applicant might have considered the CSA to have been culpably inactive. However, the Court considers that the opportunity to obtain court orders which direct the relevant authority to take appropriate and expeditious action must be regarded as effectively addressing the applicant’s principal concern, namely, the ongoing failure of Mr K to pay child support. Indeed, insofar as the applicant argues that judicial review only becomes available once there is a breach of duty in domestic terms and provides no compensation for such past breach, the Court would note that the issue before it is whether the applicant has access to court to obtain payment of child support owing to her, not whether she has any enforceable “civil right” to obtain damages from the authorities for their shortcomings in that respect, in which connection it would recall that Article 6 does not impose any requirements as to the content of domestic law.
48. Nor is the Court persuaded by the applicant’s argument that it would have been onerous to expect her to bring applications to the courts every time that the CSA was dilatory. Noting that the applicant did not put the matter to the test, it is not apparent to this Court that the proposition - that an order of mandamus, with or without specific directions, would not have improved, or alleviated, the situation - is sustainable. Effective access to court does not mean in the particular circumstances of this case that Mr K. would thereby have been brought to comply promptly for all occasions in the future. As the Government have pointed out, obtaining payment by recalcitrant parents is a fraught and difficult process; all that can be required of the authorities is that they take such reasonable measures as are, or should be, available to them. The applicant may only claim, for the purposes of Article 6, that she have access to court when it appears that they are not taking such reasonable measures. If, over a certain lapse of time, this might require more than one application to court, such does not per se disclose any disproportionate burden or clog on the exercise of the right of access to court. If the applicant had been in the position of taking direct action against Mr K herself – her preferred option -, her observations appear to envisage the fact that this might also have required serial applications to the courts to counter his various delaying tactics.
49. Furthermore, in assessing whether the possibility of applying to the courts for judicial review provided the applicant with effective access to court, the Court must also give due weight to the Government’s arguments as to the purpose and context of the child support system within England and Wales. The provision of a state enforcement scheme for maintenance payments inter alia benefits the many parents with care of children who do not have the time, energy, resources or inclination to be embroiled in ongoing litigation with the absent parent and allows the State to pursue those absent parents who default on their obligations leaving their families on the charge of the social security system and the taxpayer. The mere fact that it is possible to envisage a different scheme which might also allow individual enforcement action by parents in the particular situation of the applicant is not sufficient to disclose a failure by the State in its obligations under Article 6.
50. The Court concludes that the applicant has not been deprived of access to court contrary to Article 6 § 1 of the Convention. Nor, in light of that finding, is any violation of Article 13 disclosed either.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Finds that it is not necessary to rule on the Government’s preliminary objections;
2. Holds that there has been no violation of Articles 6 and 13 of the Convention.
Done in English, and notified in writing on 17 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech
KEHOE v. THE UNITED KINGDOM JUDGMENT
KEHOE v. THE UNITED KINGDOM JUDGMENT