Enforcement matters
Date: 07 May 2009
Authors: David Burrows
Issue: Vol 159, Issue 7368
Categories: Features, Family, Human rights, Child law
* * * * * *
The Child Support Agency (CSA), on behalf of the Child Maintenance and Enforcement Commission, is undertaking a “wave” (its word) of enforcement applications, and yet the committal application procedure under Child Support Act 1991 (CSA 1991), s 39A is probably in breach of Art 6 of the European Convention on Human Rights (the Convention).
Enforcement of payment of child support arrears derives from the liability order (CSA 1991 s 33: see NLJ, 6 March 2009, p 334 and NLJ, 20 March 2009, p 415). CSA 1991, s 39A(2)(a) enables magistrates, on application by the commission, to issue a warrant “committing [a] liable person to prison”. Thus the Commission can apply for imprisonment of a parent who is subject to a liability order.
CSA 1991, s 40(3) provides for disposal by the magistrates: “If, but only if, the court is of the opinion that there has been wilful refusal or culpable neglect on the part of the liable person it may (a) issue a warrant of commitment against him…”, ie send him to prison.
Shortly after CSA 1991 received Royal Assent, but long before its delegated legislation was made, Waite J commented (R v Luton Magistrates' Court exp Sullivan [1992] 2 FLR 1961) on magistrates' committal procedures: “The power under [Magistrates' Courts Act 1980] s 76 for magistrates to issue a writ committing a spouse to prison for non-payment of maintenance in their domestic jurisdiction is a power of extreme severity. Indeed, it might be argued that the existence of such a power in a society which long ago closed the Marshalsea prison and abandoned imprisonment as a remedy for the enforcement of debts, is anomalous. Certainly, Parliament has made it plain that the power is to be exercised sparingly and only as a last resort.”
Committal regulations
Late in 1992 regulations were made to deal with committal (Child Support (Collection and Enforcement) Regulations 1992 (SI 1992/1989) reg 33(1)). Justices may issue a summons or warrant for arrest with no summons “for the purposes of enabling an inquiry to be made under CSA 1991 as to the liable person's conduct and means...”.
In the light of Human Rights Act 1998 and of what follows from Mubarak v Mubarak [2001] 1 FLR 698, CA the economy of reg 33(1) may seem absurdly bold. For, as Waite J had already suggested, Mubarak says in terms: Victorian committal proceedings are hopelessly non-compliant in European Convention terms. It is perhaps to the shame of those advising the Commission that they have ignored the words of Brooke LJ in Mubarak at [64]: “In my judgment, it is essential for family law practitioners who are concerned with [committal] proceedings…to be fully acquainted with the requirements of [Convention] Art 6 before they embark on any similar process in future.”
Mubarak & HRA 1998
Mr Mubarak is not well-loved by family judges (see eg Mubarak v Mubarak [2007] EWCA Civ 879 per Wall LJ) mostly due to his varied attempts to avoid enforcement of a lump sum order due to Mrs Mubarak. Before English courts he has certain rights protected by English law and by the Convention, especially Art 6(3):
“(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him…”
On analogy with Mubarak (see paras [29]-[30]) a person liable to committal under s 39A–40 is “charged with a criminal offence (see Engel and ors v The Netherlands (No 1) [1979] 1 EHRR 647 at 677 paras [80]–[82])”. He is therefore entitled to the full protection of Art 6(3). To clarify this it may be helpful to examine the Debtors Act 1869, s 5 and parts of Magistrates Courts Act 1980 alongside s 39A. From these the following features emerge:
(i) There must be default in payment of a sum due to be paid following a court order. (Magistrates Courts Act 1980 s 76(1) suggests that this sum should be “adjudged”, which—if “adjudgement” means following a defendant's opportunity to contest the amount adjudged—only tangentially applies to liability orders (see previous articles in this series).
(ii) Application is made to the adjudicating court for issue of a summons.
(iii) Issue by that court of a warrant to commit to prison (whatever that may mean to the average liable parent (see Art 6(3)(a) above); and perhaps to many practising lawyers, as well).
(iv) Committal can only follow where there has been wilful refusal or culpable neglect by the debtor to pay (that the debtor “has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default” in terms of s 5).
Sections 39A–40 are directly derived from Debtors Act 1869, s 5. Given this close relationship the later provisions can be analysed, in the same way as does the Court of Appeal of s 5 in Mubarak and through the prism of ECHR Art 6(3).
Mubarak, committal procedures & Art 6(3)
Section 5 enables proceeds by judgment summons (Family Proceedings Rules 1991(SI 1991/1247) R 7.4 in family proceedings). Where a defendant is proved to have the means to pay an order, the summons seeks his committal to prison.
● Mr Mubarak had been ordered by Bodey J in the Family Division to pay a sum of £4,875,000.
● He had failed or refused to pay the first instalment of £3,200,000.
● The wife issued a judgment summons supported by an affidavit deposing to the default. No evidence was filed in support, though the wife later added a sworn affidavit which stated that the husband had not paid the money which he had been ordered to pay, as happens with the present procedure under CSA 1991.
The judge made a committal order (six weeks), not to be enforced if the husband paid. The husband appealed against that order, arguing that the judgment summons procedure was not Human Rights Act 1998 compliant.
Exact analogy?
The analogies in this procedure with CSA 1991 are almost exact. Of the judgment summons procedure of Brooke LJ (at [44]) summarised the Court's view thus: “The Human Rights Act 1998 has now been in force for just over 2 months, and it is already clear that the introduction of a code setting out modern international standards of fairness is doing work of considerable value in shining light into some of the dustier corners of our law. The experience of this case shows, at any rate to my satisfaction, that corners do not get much dustier than those inhabited by s 5 of the Debtors Act 1869 and the prescribed procedures under that Act.”
Brooke LJ then went on (paras [48]–[50]) to refer to the necessary procedure for a Human Rights Act 1998 compliant application:
(i) The charge or basis for the application must be “set out clearly in writing”: the power to commit extends to many more courts in family and civil proceedings than was previously the case.
(ii) Practice Direction on committal in civil procedings applies in family proceedings: including that the burden of proof, which rests on the applicant, must be “beyond reasonable doubt”.
(iii) Committal of a debtor said Brookes LJ (citing a 1902 case) can only be made “when there is a contumacious debtor who has the means, or has had the means, to pay the debt, and his conduct is in the nature of contempt” (Re James Edgecome, Ex Parte James Edgecombe [1902] 2 KB 403 per Vaughan Williams LJ at 410).
Finally, says Brooke LJ (at [52] and [64]) “family law practitioners who are concerend with proceedings which may lead to committal [must] be fully acquainted with the requirements of” the Convention, Art 6; for, he said, he was “completely satisfied that [the committal practice direction set outs] the practice which must be applied, both in civil courts and in family courts, in proceedings in which committal to prison may be in issue”. (If there is any doubt that CSA 1991 proceedings are family proceedings, see Supreme Court Act 1981, Sch 1 para 3(h); and now Magistrates' Courts Act, s 111A: proceedings under CSA 1991 are family proceedings.)
Much the same can be said of ss 39A-40 and its skimpy court procedures in relation to Art 6(3), as is said of s 5 in Mubarak. So before too many more tumbrels roll out of the magistrates' courts, it is to be hoped that a declaration as to the compliance of ss 39A–40 and its procedures with Art 6(3) will be sought in the High Court. Watch this space.
Share this page
