CHILD SUPPORT HUMAN RIGHTS: R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48

14 JUL 2005

(House of Lords; Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Brown of Eaton-Under-Heywood; 14 July 2005) [2005] 2 FLR 1249

Mrs Kehoe contended that, properly understood, the Child Support Act 1991 (the Act) gave her a right to recover financial support for the children from Mr Kehoe, and that the provisions of the Act purporting to deny her a power of direct enforcement against him were inconsistent with the right of access to a court guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention), Art 6. The House of Lords dismissed Mrs Kehoe's appeal and the majority held that the effect of the Act was that the maintenance obligation owed by the non-resident parent in respect of a qualifying child was enforceable by the Secretary of State. The Act had deliberately avoided conferring a right on the parent with care. Enforcement was, by virtue of s 4 of the Act, exclusively a matter for the Secretary of State. Under the legislative scheme, the parent with care had no right against the absent parent that he could enforce in any court, and this was a matter of substance, not procedure. A parent with care therefore had no civil right protected by the Convention, Art 6, and the Article was not engaged. Per Lord Walker: It was not the case that Mrs Kehoe had no enforceable rights whatsoever in respect of child support enforcement. She could take proceedings for judicial review. Per Baroness Hale, dissenting: Children had a civil right to be maintained by their parents, which right survived the enactment of the Act. The extent of that obligation was defined by the Act as well as by the remaining private law powers. The Act operated as a limit both to the extent of the obligation and to its enforcement. This was, throughout, a private civil right. All the Act did was to take away the parent with cares right to enforcement. The enforcement provisions were procedural in nature. The childrens continuing civil right to be maintained by their parents engaged Art 6 of the Convention. The public authority charged by parliament with securing the determination and enforcement of the childrens support rights had a duty to act compatibly with their right under Art 6 to the speedy determination and effective enforcement of those rights. A claim lay under the Human Rights Act 1998, s 7.

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