Law Report: Consent order unaffected by Act: C v C: Family Division (Mrs Justice Booth), 7 December 1993

The new machinery introduced under the Child Support Act 1991, bypassing the courts' jurisdiction and using a straight mathematical calculation to enforce a parent's responsibility to maintain a child, did not constitute a new event which invalidated the basis of a consent order for financial provision made in divorce proceedings.

Mrs Justice Booth refused the husband leave to appeal out of time against a consent order for ancillary relief made in divorce proceedings.

The parties divorced after a marriage of six years. By a consent order made in 1989 the husband transferred his interest in the matrimonial home, worth about pounds 8,000, to the wife in full and final settlement of all her financial claims, including maintenance for their child. Although the wife assumed responsibility for the child's maintenance, she did not have adequate means and received income support.

In 1993 on an application to the magistrates' court by the Secretary of State for Social Security under the Social Security Administration Act 1992 the husband was required to contribute pounds 4 per week towards the child's maintenance.

It is anticipated that, under the Child Support Act 1991, his liability will increase to pounds 29 per week. The husband applied for leave to appeal out of time to set aside or vary the consent order so that he may recover his share of the former matrimonial home and invest it to enable him to pay the sum required under the child support formula.

Iain Goldrein (Brabner Holden, Liverpool) for the husband; Judith Fordham (A Coupland & Co, Carlisle) for the wife.

MRS JUSTICE BOOTH said that the parties would never have reached the agreement they did had they thought the husband would be required to make periodical payments for the child, certainly of the magnitude calculated under the Child Support Act formula, or probably at all.

As between spouses the clean-break principle now formed part of the statutory code governing the court's approach to ancillary relief. Different considerations, however, applied in relation to child maintenance where the ongoing responsibility of the parents had remained a basic factor to which the clean-break principle had never applied.

The wife was in receipt of income support and so, in effect, the State was assuming her liability to maintain the child. In reality the husband could only be relieved of his obligation at the expense of the State. What was not anticipated was that the State would intervene to relieve, if not rid, itself of that financial burden. Nevertheless, at the time the order was made the State was empowered to seek the recovery of its expenditure under the Social Security Act 1986.

Although under the 1986 Act magistrates exercised a judicial discretion when making an order for maintenance, and under the Child Support Act a straight mathematical computation assessed liability for child maintenance, outside the jurisdiction of the courts, that did not constitute a new event which undermined the basis of the order in 1989.

The fact that Parliament had chosen a new administrative method by which the State might intervene to compel a parent to contribute towards the maintenance of a child, bypassing the jurisdiction of the court, did not fundamentally alter the position as it was in law in 1989. The legal liability to maintain the child remained on the parents. The State was never bound by the agreement or order. At any time it could have intervened. It was immaterial that the parental liability would now be enforced through an agency outside the courts.

Neither the existing order made in 1993 under the statutory machinery which existed in 1989, nor any anticipated liability which might be levied under the new machinery introduced by the 1991 Act constituted a new event, in fact or in law, sufficient to invalidate the basis of the consent order.

Ying Hui Tan, Barrister