In a robust judgement sure to cause consternation, the Court of Appeal has condemned the Child Support Agency (CSA) for “obnoxious” and “unreasonable” legal failings in threatening fathers with jail without giving them the right to defend themselves.
Sitting with the Lords Justice Patten and Richards, Lord Justice Ward said: “The procedures adopted do not comply with the rights to a fair trial and were flawed.”
This was a test case, brought by a group of solicitors and barristers to establish whether the standard working practices of the CSA breached the rights of fathers under Article 6 of the European Convention on Human Rights. Article 6 protects the right to a fair trial within a reasonable time frame, the presumption of innocence until guilt is proven and similar legal rights.
The appeal was focused on two fathers under scrutiny by the CSA for alleged non-payment of child maintenance: Christopher Gibbons who was appealing against a prison sentence of 21 days, suspended for 11 years and Kambiz Karoonian of Ormskirk, appealing against a suspended sentence of 42 days. The CSA claims that Mr Karoonian owes more than £10,000 in child maintenance arrears but he denies this.
Amongst other criticisms, Lord Justice Ward said the wording of court summons sent to the two men had wrongly implied that they bore responsibility for proving that they did not owe the money claimed, thereby reversing the traditional legal burden of proof, when it is up to the accuser to prove their claims.
The Latin expression sometimes used to define the concept of ‘innocent until proven guilty’ is: Ei incumbit probatio qui dicit, non qui negat (the burden of proof lies with who declares, not who denies).
Lord Justice Ward said the ruling had been made with “considerable reluctance” and in the full knowledge that it could “emasculate” the CSA’s ability to extract money from recalcitrant fathers.
Stephen Lawson, a child support specialist who helped to bring the test case, welcomed the ruling:
“I hope this ruling will now end the unjust practice of non-resident parents, usually fathers, being jailed or threatened with jail without the opportunity to defend themselves properly. Parents may have heard nothing from the CSA for many years and then suddenly out of the blue they receive a demand for thousands of pounds. Many are simply unable to pay and are met with an application to put them in prison or disqualify them from driving.”
“In another recent case, a father was arrested, taken to court and sent to prison all on the same day, with no opportunity to challenge the evidence against him. The CSA has been sending summons notices through the post, often to an old address, so this has led to some parents being tracked down and arrested, knowing nothing of the court proceedings. And the onus has been on the parent to prove why he shouldn’t be sent to prison, which reversed the traditional burden of proof. Th[is] ruling means the burden of proof, the serving of summons notices and disclosure of documents will now be improved to a level similar to criminal proceedings – which is only fair if people are threatened with the ultimate sanction of imprisonment.”
No one will be surprised to hear that the Department for Work and Pensions is unhappy with the judgement. A spokesman said:
“It is extremely disappointing that parents who have flouted their legal responsibility to financially support their children have invoked the Human Rights Act to seek to continue to do so.”
Perhaps – but if this judgement is correct, hasn’t the CSA flouted its legal responsibilities too?
The spokesman added:
“Regrettably, we need every enforcement measure at our disposal to ensure the minority of irresponsible parents pay for their children. It is important to stress that this judgement does not question the legality of bringing parents who repeatedly refuse to pay for their children to the attention of magistrates, who can then decide whether to send them to prison. We will of course consider any other implications of this judgement carefully and take the appropriate action.”
The department is now thought to be considering an appeal to the Supreme Court.
This result is bound to please fathers’ rights groups as well as many readers of this blog. We receive receive hundreds of enquiries every year about the CSA.
The picture painted by Stephen Lawson is an undeniably unpleasant one. The casual reversal of that most fundamental of legal principles , the burden of proof, suggests that the CSA has occasionally behaved more like the secret police in a dictatorship than the arm of a parliamentary democracy. And clearly the Court of Appeal found the arguments convincing.
Nevertheless, as much as many would like it, we must resist the temptation to paint all non-resident fathers as victims. As any family lawyer will confirm, there is no shortage in this world of fathers who cannot or will not do the right thing by their children, nor of single mothers in need. Some form of government intervention in the child maintenance process is unavoidable.
Ironically, this judgement comes just as the government begins to wind down the CSA and transfer its responsibilities to the new Child Maintenance Service. It seems the CSA is destined to die as it lived: in the midst of controversy.