R(CS) 6/03

Mr. H. Levenson	CCS/1306/2001
5.11.02
Maintenance assessment – whether “parent with care” includes step-parent

Human rights – application of Human Rights Act 1998 where Secretary of State’s decision before October 2000 and tribunal hearing afterwards
The mother and father of child “G” were married to one another but later divorced, with the mother becoming the parent with care. The father remarried and lived with his second wife, their children and his stepdaughter “M” (the child of his second wife). One or both of the father and his second wife were in receipt of working families’ tax credit and until September 2000 there was a child support maintenance order in force against M’s natural father. In March 2000 the Secretary of State superseded an existing assessment against the father in respect of G. The father appealed, arguing that  he was the parent with care in respect of M, and, as he was in receipt of working families tax credit, it therefore followed that under regulation 10A(1) and (2) of the Child Support (Maintenance Assessment and Special Cases) Regulations he should be taken to have an assessable income of nil. On 11 December 200 the tribunal dismissed his appeal. The father appealed to the Commissioner, before whom he also argued that there was a breach of Articles 8 and 14 of the Convention. It was contended that the child support scheme had operated in his case to interfere with the right to respect for the family life of his new family and the scheme discriminated in the way that it dealt with a family which included a stepchild as opposed to a natural or adopted child.
Held, dismissing the appeal, that:
1.	The father was not the “parent with care” of M for the purposes of the child support legislation (paragraph 11);
2.	in its decision of 11 December 2000 the tribunal was, subject to the provisions of section 6(2) of the Human Rights Act 1998, obliged to act compatibly with Convention rights (and to apply section 3(1)) in order to avoid an act that would be unlawful under section 6(1) and this was so even though the decision of the Secretary of State was made before the full implementation of the 1998 Act (paragraph 17);
3.	however, given the date of the decision appealed against, the tribunal was also bound by section 20(7)(b) of the Child Support Act 1991 and bound to implement the provisions of section 54 of that Act, without regard to the provisions of, and as the law was before the implementation of, the Human Rights Act 1998 (paragraphs 18 to 21).

DECISION OF THE CHILD SUPPORT COMMISSIONER

Decision

1. This appeal is brought by the father of a boy born on 1 May 1985. I refer to this child as “G”. The second respondent is G’s mother. G lives with his mother and is a qualifying child for the purposes of the child support legislation. The appeal does not succeed. I confirm the decision made by the tribunal on 11 December 2000.

Background and Procedure

2. The mother and father were married to each other but they have divorced and the father has remarried. At the relevant times the mother was the parent with care, was a lone parent and was in receipt of child benefit for G and working families’ tax credit. The father lived with his new wife and their children, was employed, had mortgage costs and he and/or his new wife were also in receipt of working families’ tax credit. One of the children with whom the father lived was the daughter of his new wife. I refer to this child as “M”. He had not adopted M and, accordingly, she was his stepdaughter. Until about 9 September 2000 there was a child support maintenance order in force against M’s natural father in respect of M.

3. From an effective date of 7 February 1994 the father in the present appeal has been liable to pay child support maintenance in respect of G, the child of his earlier marriage, and the matter has continued to be dealt with under the child support legislation. 

4. On 2 March 2000 the Secretary of State superseded the existing assessment and ordered that the father was liable to pay £42.60 weekly child support maintenance in respect of G as from 7 February 2000. On 23 March 2000 the father appealed to the tribunal against the decision of the Secretary of State. The tribunal considered the matter on 20 August 2000 but adjourned for further evidence and submissions. The tribunal finally considered the matter on 11 December 2000 and dismissed the appeal. The tribunal recorded that “the sole matter of dispute was whether [the father] should be classed as having no income by virtue of the fact that he received working families’ tax credit and there was a child in his family for whom a child support maintenance order was in force”. 

5. On 16 March 2001 a tribunal refused to set aside the decision of the tribunal of 11 December 2000 and on 26 March 2001 a District Chairman of the tribunal refused the father’s application for leave to appeal to the Child Support Commissioner against the decision of the tribunal. He now appeals by my leave granted on 25 April 2002. The Secretary of State opposes the appeal and supports the decision of the tribunal. 

The Point of Law

6. At the relevant time many of the calculations necessary to working out the appropriate child support maintenance, including the calculation of income, were governed by Schedule 1 to the Child Support Act 1991. For the purposes of my decision it is necessary to refer only to part of regulation 10A of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992. So far as is relevant this provided:

“10A(1) Subject to paragraph (2), where working families’ tax credit … is paid to or in respect of a parent with care or an absent parent, that parent shall, for the purposes of Schedule 1 to the Act, be taken to have no assessable income.

(2) Paragraph (1) shall apply to an absent parent only if –
(a)	he is also a parent with care; and
(b)	either – 
(i)	a maintenance assessment in respect of a child in relation to whom he is a parent with care is in force; or 
(ii)	 … ”

7. The father in this case is an absent parent in respect of G. In these proceedings he argues that, as well as being a person with care in respect of M. he is also a parent with care in respect of her. If he is, then he is to be taken to have no assessable income. If he is not, then it is agreed that the tribunal decision is correct.

The Meaning of Parent with Care

8. Section 54 of the Child Support Act 1991 defines “parent with care” as “a person who is, in relation to a child, both a parent and a person with care”. It defines “parent” in relation to any child as “any person who is in law the mother or father of the child”. The 1991 Act does not define further the meaning of “father”.

9. My understanding of the meaning of “father” in English law accords with that explained in Cretney and Masson’s Principles of Family Law (6th edition 1997 at page 626) that, subject to exceptions, “the law recognises the child’s biological father as his legal father”. The exceptions relate to a presumption of fatherhood if a child is born to a married couple during the marriage, to adoption and to situations where the provisions of section 28 of the Human Fertilisation and Embryology Act 1990 are relevant. Obviously they do not apply in this case. On page 628 the authors state that “Social fathers can become legal fathers through adoption” and on page 645 they add that:
“Other people, most frequently step-parents … may take on the role of parent but these “social parents” do not automatically acquire parental responsibility either by marrying a parent or looking after the child”.	

10. I also note that section 3(2) of the Child Support Act 1991 deals with the concept of an absent parent. If “parent” includes step-parent, as the father in the present case contends, then a step-parent could become an absent parent and liable to pay child support maintenance in respect of the stepchild. That cannot be the intention of the legislation.

11. Thus I am in no doubt that as a matter of English (or domestic) law the father of G is not a “parent with care” of M for the purposes of the child support legislation. 

12. However, he has raised the question of the position under the Human Rights Act 1998 and what is usually referred to as the European Convention on Human Rights (“the Convention”). The full legal reference given in section 21(1) of the 1998 Act is “the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950”. 

The Human Rights Act Argument

13. Before the Commissioner the father raised the new argument that the way in which he has been treated is in breach of Articles 8 and 14 of the Convention. Article 8 provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.	

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others.”  

Article 14 provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

14. The argument of the father, as I understand it, is that the way in which the child support scheme has operated in his case is an interference with the right to respect for the family life of his new family (including M), and that the scheme discriminates in the way in which it interferes in the case of a family including a stepchild as compared with that of a family including only natural (or adopted etc.) children.

The Human Rights Act 1998

15. The Human Rights Act 1998 came fully into force on 2 October 2000. Thus, it was in force by the time of the tribunal hearing of 11 December 2000. Amongst other matters, it provides for direct application of the Convention in UK domestic law. I deal below with the application of the Convention prior to implementation of the 1998 Act.

16. The main relevant provisions of the Human Rights Act 1998 are as follows:

“3.–(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” 

“6.–(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act [of a public authority] if–

(a)	as the result of one or more provisions of primary legislation the authority could not have acted differently; or	

(b)	in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights the authority was acting so as to give effect to or enforce those provisions. 

(3) In this section "public authority" includes–
(a) a court or tribunal, …	
 … 	

7.–(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may–
(a)	…

(b)	rely on the Convention right or rights concerned in any legal proceedings,
 … 

22.–(4) [Section 7(1)(b)] applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section.”

17. In its decision of 11 December 2000 the tribunal was, subject to the provisions of section 6(2), obliged to act compatibly with Convention rights (and to apply section 3(1)) in order to avoid an act that would be unlawful under section 6(1). This is so even though the decision of the Secretary of State that was under appeal was made by the Secretary of State before the full implementation of the 1998 Act. On this matter I do not accept the submissions made by the Secretary of State.

18. However, it is necessary to consider the provisions of section 20(7)(b) of the Child Support Act 1991 as amended by section 42 of the Social Security Act 1998. These provide that, when an appeal to a tribunal against a decision under the Child Support Acts was initiated after 31 May 1999 (as this present one was), the tribunal “shall not take into account any circumstances not obtaining at the time when the decision or assessment appealed against was made”. 

19. In CDLA/1338/2002 (paragraphs 20 to 21) Mr. Commissioner Howell considered similar provisions in relation to social security benefits. He stated:

“ … the tribunal is necessarily confined by the primary legislation in [the Social Security Act 1998] to determining the case in accordance with the state of the facts and the law as they respectively stood at the time of the decision under appeal to it.  This is required of it by [the 1998 Act].  Those provisions are in my judgment impossible to read in any other way than as requiring what they expressly say: that changes in circumstances which took place after the date of the administrative decision under appeal must be excluded from the tribunal’s consideration. It is well established that in this context “circumstances” include alterations in the law itself. …  It must in my view follow that any decision given by the tribunal in accordance with that unambiguous requirement of the primary legislation on the appeal in this case, even if arguably involving an infringement of some Convention right, is necessarily excluded from being made unlawful under section 6 of the Human Rights Act 1998, because the … decision under appeal was given [in this case] on 10 February 1998 and the tribunal is confined to the state of the facts and United Kingdom law at that time”. 	
 
20. I agree with his analysis to this effect and with that of Miss Commissioner Fellner in CIS/4572/2001. (Mr. Commissioner Howell followed a decision of the Court of Appeal given by Sir Andrew Morritt V-C in Wilson v. First County Trust Limited (No. 2) [2002] QB 74, [2001] EWCA Civ 633, cited with approval in R v. Lambert [2001] 3 WLR 206, [2001] UKHL 37, and not doubted in R v. Kansal (No 2) [2002] 2 AC 69, [2001] UKHL 62). The same analysis applies to child support decisions and the effect of section 20(7)(b). 
21. In the case before me the decision appealed against was that of the Secretary of State made on 2 March 2000. This was before the implementation of the Human Rights Act 1998. Accordingly the tribunal was bound by section 20(7)(b) of the Child Support Act 1991 as amended to apply the law and to implement the provisions of section 54 of the 1991 Act, without regard to the provisions of, and as the law was before the implementation of, the Human Rights Act 1998. 

The Effect of the Convention Prior to the Implementation of the Human Rights Act 

22. Before the implementation of the Human Rights Act 1998 the Convention was not part of English Law. The technical way of expressing this is to say that it had not been “incorporated” into English law. However, the United Kingdom was a member of the Council of Europe and a signatory to the Convention. It was bound by its terms in international law. It is also a well established rule that Parliament is assumed to legislate in accordance with the international obligations of the United Kingdom. Thus, recourse could be had to the Convention (and to decisions of the institutions established by it) in cases of ambiguity, to assist the exercise of judicial discretion, and to delineate the scope of the common law (see R v. Secretary of State for the Home Department ex parte Brind [1991] AC 696, Attorney-General v. Guardian Newspapers Ltd. [1987] 1 WLR 1248, Derbyshire County Council v. Times Newspapers Ltd. [1992] QB 770).

23. However, I cannot see that there is any ambiguity in the meaning of “parent” or “father” for the purposes of the Child Support Act 1991, or any scope for the exercise of judicial discretion in the implementation of the provisions in question. Although the meaning of these terms is partly a question of common law, there is nothing in the Convention that bears on the common law in relation to the meaning of the relevant words.

Decisions Made by the Secretary of State After the Implementation of the Human Rights Act 1998

24. Any comment I make on what the position would be if the Secretary of State were to make a similar decision in a similar case after the implementation of the Human Rights Act 1998 is obiter (not part of the point of law that I have to decide for the purposes of the case before me). However, it is worth making some comments.

25. The existence of the child support scheme does not in itself breach Article 8(1) although it is possible that the effects of an order for child support maintenance might do so in any particular case (Logan v. United Kingdom (1996) 22 EHRR CD178). Even if it is accepted that the making of intrusive enquiries into family circumstances is an interference with the right to respect for private or family life, such interference is probably protected by Article 8(2). It is certainly in accordance with the law, there is a powerful argument that it is necessary in a democratic society in the interests of the economic well-being of the country, and it involves the protection of rights of others, the children in respect of whom orders for child support maintenance are made (see also CCS/6373/1999).  

26. The Secretary of State has argued that a breach of Article 14 can only arise where there has been a breach of another article. This is wrong. Article 14 also applies to secure, without discrimination, the way in which the various rights are secured (see e.g. Petrovic v. Austria Case No 156/1996/775/976, (2001) 33 EHRR). It might be arguable that discrimination against step-parents as compared with natural or adoptive parents is discrimination on grounds of status. However, it might be difficult to maintain the argument that step-parents should be treated in the same way as natural or adoptive parents for the purposes of limiting the amount of child support maintenance paid for children in respect of whom they are absent parents, without also making them liable to pay child support maintenance in respect of their stepchildren if the new relationship breaks down. This might in the end come down to a question of social policy in which the policy of the domestic legislation will be preserved.

Conclusion

27. Accordingly, for the reasons that I have given above, I am not persuaded that the decision of the tribunal was made in error of law, and this appeal by the father does not succeed.

(Date)	5 November 2002	(signed) H. Levenson 
Commissioner