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01 AUG 2007

Child Support Act 1991: no duty of care to children

David Burrows, Solicitor Advocate. The common law as it is said to be after R (Rowley) v Secretary of State for Work and Pensions (Resolution Intervening) [2007 EWCA Civ 598, [2007] FLR (forthcoming) is letting down a substantial group of mostly needy children needy because they are from single parent homes and, it is argued, because of the depradations of the Secretary of State for Work and Pensions and the Child Support Agency. Was Rowley decided per incuriam? The case in the Court of Appeal was argued by five administrative lawyers and two tort specialists: none, nor any of the judges, were known for their knowledge of family law.

In this article David Burrows revisits the fundamental principles underlying child support. In R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48, [2005] 2 FLR 1249 Baroness Hale of Richmond observed that the case, which was in reality a case about children's rights concerning the obligation to maintain children and the corresponding right of children to obtain the benefit of that obligation, had been presented largely as a case about adult's rights. The children's rights or interests point is given statutory effect to by s 1(1) of the Children Act 1989: but notwithstanding this the Act was not referred to in Rowley.

Looking in detail at the arguments before the court in Rowley the author identifies statutory provisions that should have been considered and asks whether Mrs Rowley should have conceded that the Child Support Act 1991 did not give rise to a private law right to sue for breach of statutory duty. There follows the question of whether in the context of accepting an application for child maintenance the Secretary of State can be said to have a form of agency on behalf of the parent or person with care, and whether there are therefore numerous grounds upon which this decision could be challenged.

For the full article see August [2007] Fam Law.

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