Delay in enforcing child support is breach of Article 6

Family Law|August 3rd 2016

The child support/maintenance system is sadly notorious for being inefficient. Whether its latest incarnation, under the auspices of the Child Maintenance Service (CMS) rather than the Child Support Agency (a change of name can work wonders), proves any better, only time will tell. The initial indications, however, are hardly auspicious: by November 2015 the new scheme had already run up arrears of unpaid child maintenance of £43.5 million.

If a non-resident parent fails to pay child maintenance the parent with care (PWC) can, of course, request the CMS to take enforcement action (although the PWC will now have to pay a fee for the privilege). There are various methods of enforcement open to the CMS and I won’t go into them here. However, whatever method or methods are used, the CMS is, of course, under a duty to act with reasonable dispatch. After all, the PWC requires the money to pay for the child’s upkeep – any delay causes further financial suffering for the PWC and, ultimately, the child.

Quite how efficient the CMS is at taking enforcement action I don’t know. The statistical release on the CMS that the Department for Work and Pensions published last January did not give any information on this. Hopefully, the CMS will act with reasonable speed in taking enforcement action, but what can the PWC do if it does not?

The recent European Court of Human Rights (ECHR) case Veiga da Silva Braga v. Portugal provides one answer. The case concerned a woman who, on 6 May 2011, brought enforcement proceedings against her former husband before the Braga Family Court in Portugal, seeking the payment of child support amounting to 3,600 euros. On 27 February 2013 the woman was notified that her former husband had no ‘attachable assets’ and, in the light of this, the enforcement proceedings were extinguished on 12 June 2015.

A short word of explanation, for the benefit of those who are not au fait with enforcement procedures. The method that was attempted here was the equivalent of our ‘warrant of execution’ procedure, whereby the court authorises a bailiff to seize belongings owned by the debtor, so that they can be sold to raise money to pay the debt. I don’t know whether this method is the only one available to the Portuguese family court, or whether it was simply the only appropriate method in the circumstances.

Whatever, not satisfied with the efforts of the court to take enforcement action, the woman applied to the ECHR, complaining that the length of time that the proceedings took amounted to a breach of her right to a fair trial, under Article 6 of the European Convention on Human Rights.

In particular, the delay was incompatible with the requirement in Article 6 that:

“In the determination of his civil rights and obligations …, everyone is entitled to a … hearing within a reasonable time by a … tribunal”.

The ECHR agreed. It reiterated that:

“…the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicant in the dispute”

In this case, having examined all the material submitted to it, it found that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. Accordingly, there had been a breach of Article 6.

It should be noted that in this case the woman had no way of obtaining compensation for her loss from the Portuguese authorities. Accordingly, if a PWC does obtain compensation here then that may make any Article 6 claim inadmissible. Nevertheless, if the CMS is dragging its feet, it may still be worthwhile reminding them of Article 6.

The full report of the case can be found here.

Photo of the European Court of Human Rights in Strasbourg, France, by Mathieu Nivelles via Flickr under a Creative Commons licence.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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Comment(1)

  1. Jo Archer says:

    In this country, it isn’t so much getting to a tribunal but working out that you need to ask for a ‘mandatory reconsideration’ before starting the appeals process. In my experience, what should be appeals tend to be treated as compliants by the CSA/CMS. But the Tribunal is very good at accepting out-of-time appeals if you can show that you haven’t accepted the decision and continued to write to someone in the organisation with your views.

    Unfortunately, it also isn’t very clear when a ‘decision’ is made. I have been told on many occassions that a ‘decision’ not to take action is NOT appealable! So this may be an area that would fall afoul of Article 6.

    In fact, I have a case where a Tribunal’s decision has not been implemented due to the transition from the CSA to the CMS. And there are other areas of existing law which seem to be totally misunderstood by the staff working there.

    Would everyone with experience of the CMS please make a submission to the Work and Pensions Select Committee..
    parliament.uk/business/committees/committees-a-z/commons-select/work-and-pensions-committee/inquiries/parliament-2015/child-maintenance-16-17/

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