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[1998] UKSSCSC CCS_316_1998 (01 December 1998)
THE CHILD SUPPORT COMMISSIONERS Commissioner's Case No: CCS/316/1998 CHILD SUPPORT ACTS 1991 AND 1995 APPEAL FROM A DECISION OF A CHILD SUPPORT APPEAL TRIBUNAL ON A QUESTION OF LAW DECISION OF THE CHILD SUPPORT COMMISSIONER MR COMMISSIONER JACOBS


 


Decision:

1. My decision is as follows. It is given under section 24(2) and (3)(c) of the Child Support Act 1991.
2. .1 The decision of the Sheffield Child Support Appeal Tribunal held on 20th October 1997 is wrong in law: see paragraph 29.
3. .2 Accordingly, I set it aside and refer the case to a differently constituted Child Support Appeal Tribunal for determination.
4. .3 I give the following directions to the Child Support Appeal Tribunal which rehears this case. The tribunal must accept that the child support officer was not prevented from making a child support maintenance assessment by the court order of 22nd January 1996. Otherwise, the tribunal must investigate and determine all of the issues raised by the parties that are within its jurisdiction, together with all others issues arising from the evidence or the circumstances of the case.

The appeal to the Commissioner

5. In the terminology of the child support legislation, the appellant is the parent with care and the second respondent is the absent parent. I shall refer to the appellant and the second respondent in those terms. The qualifying children are Matthew and Helen.
6. This is an appeal to a Commissioner against the decision of the tribunal brought by the parent with care with the leave of the tribunal's chairman. The child support officer does not support the appeal. The absent parent has made observations on the appeal.

Jurisdiction to make a maintenance assessment

7. This appeal raises the question: did the child support officer have jurisdiction to make a child support maintenance assessment with respect to Matthew and Helen?
8. On 23rd August 1996, the parent with care applied for a child support maintenance assessment under section 4 of the Child Support Act 1991. The child support officer made an assessment of £122.17 a week against the absent parent in respect of Matthew and Helen.
9. Section 4(10) provides:

"No application may be made at any time under this section with respect to a qualifying child or any qualifying children if-

(a) there is in force ... a maintenance order, in respect of that child or those children and the person who is, at that time, the absent parent".

10. If this provision applies, the child support officer had no jurisdiction to make a child support maintenance assessment. On 22nd January 1996, a court order was made on the divorce of the parent with care as petitioner and the absent parent as respondent. See pages 108 to 110. Does this fall within section 4(10)(a)? "Maintenance order" is defined as meaning

"an order which requires the making or securing of periodical payments to or for the benefit of the child and which is made under [various statutes]."

See sections 8(11) and 54 of the Child Support Act 1991. There is no doubt that the order was made under a relevant statute. The question is: did the order require the making of periodical payments to or for the benefit of Matthew and Helen?

The court order

11. The court order was a consent order. It contained undertakings by both parents and orders by the court. For ease of reference, I use these terms:

The term refers to

court order the document as a whole

undertakings the recitals to the order

order the orders made by the court with the consent of the parties.

The relevant undertakings are:

"AND UPON [the parent with care] undertaking not to apply to the Court for an increase in the Order for Periodical Payments at paragraph 5 hereunder.

"AND UPON [the absent parent] undertaking and agreeing that in the event of:

(a) the Periodical Payments Order at paragraph 5 hereunder ceasing by virtue of the re-marriage of [the parent with care] and/or

(b) a Child Support Agency assessment upon him being made at a rate less than £90.00 per week in aggregate, he shall make further payment to [the parent with care] for the benefit of the children so that she shall receive from him, directly or otherwise, at least £90.00 per week."

Despite the layout of the second undertaking, the words that I have put in italics must relate to both eventualities: (a) and (b).

12. Paragraphs 5 and 6 of the order provide:

"5. [THE ABSENT PARENT] shall pay or cause to be paid to [the parent with care] the sum of £90.00 per week such [sic] sum shall be reduced by fifty per cent on the occasion of one of the children ... ceasing full-time education and all payments shall cease on the occasion of the second child to cease [sic] full-time education. Provided however in the event that hereafter there shall be made payments by [the absent parent] under assessment by the Child Support Agency the sums payable pursuant to this Order shall be abated by the amount of those payments.

6. THE FOREGOING provisions and undertakings shall be in full and final settlement of each parties' [sic] claim against the other to Lump Sum or Property Adjustment Orders and it is hereby directed, pursuant to Section 29 1(A) of the Matrimonial Causes Act 1973 that [the parent with care] shall not be entitled to apply for an extension of the term of the Order at paragraph 5 hereof."

The tribunal's decision

13. The tribunal's decision was that the child support officer had no jurisdiction to make an assessment. It seems that the tribunal concentrated on the wording of section 4(10)(a). Certainly, its reasons do not refer expressly to the definition of "maintenance order". Its conclusion was that the absent parent was making payments in respect of the children.

Questions of interpretation

14. Two questions of interpretation arise.
15. First, there is the interpretation of the court order. The absent parent's undertaking refers to payments "for the benefit of the children", while the order refers to payments "to" the parent with care. What is the correct interpretation of the court order? Does the undertaking provide for maintenance for the children and the order for maintenance for the parent with care? Do both provide for maintenance for Matthew and Helen?
16. Second, there is the interpretation of the legislation. If paragraph 5 of the order is not to be interpreted as imposing an obligation on the absent parent to pay maintenance for the benefit of the children, are the payments nonetheless to be regarded as for the children's benefit under the definition of "maintenance order" in the child support legislation?

The competing interpretations of the court order

Maintenance for Matthew and Helen

17. One possible interpretation is that the undertaking and the order both provide for maintenance for Matthew and Helen. This is the interpretation put forward by the absent parent's solicitors. They wrote (page 112):

"It was - and always has been - our client's understanding, as well as ours, that the interpretation of the Order is that the payments are for the benefit of the children."

This interpretation is in line with a sentence from a letter written by the parent with care's solicitors before the court order was made. They wrote to the absent parent's solicitors (page 120):

"Pending any CSA assessment your client will make payments in respect of the children at the rate of £90.00 per week."

18. This was the tribunal's interpretation. Its reasons were:

"It is clear however from the tenure [sic] of the agreement that the payments are in respect of the children. We have quoted in full above the terms of the preamble to the order where reference is made to a possible decrease in the order should a Child Support Agency assessment be made at a rate of less than £90 per week. The inescapable conclusion from this is that the £90 per week is in respect of the children even though the payments are made to [the parent with care]. This would seem to be reinforced by paragraph 5 where provision is made for the sum of £90 per week to be reduced when either of the children cease full-time education."

19. The child support officer submits to the Commissioner that this is the correct interpretation of the court order. The essence of the submission is contained in this sentence (paragraph 17 at page 162):

"I submit that it is difficult to see how the payments are solely in respect of [the parent with care] and then reduce or cease when they [sic] children cease full-time education."

Maintenance for the parent with care

20. Another possible interpretation is that the undertaking provides for maintenance for Matthew and Helen, while the order provides for maintenance for the parent with care, limited in time by reference to the children's education. This is the interpretation put forward in the parent with care's grounds of appeal to the Commissioner.
21. The argument for this interpretation makes a number of points, most of them features of the undertakings and the orders in paragraphs 5 and 6 that are incompatible with the other interpretation. These features are:
22. .1 Paragraph 5 of the order refers to the education of the children to limit the time for which payments are made.
23. .2 It is the court order that has to be interpreted, not the agreement underlying that order.
24. .3 Head (a) of the absent parent's undertaking refers to payments under paragraph 5 ceasing on remarriage. This is only required if paragraph 5 provides for spousal maintenance, as periodical payments for a spouse cease on remarriage.
25. .4 Section 28(1A) of the Matrimonial Causes Act 1973 (mistakenly referred to as section 29 1(A) in paragraph 6 of the court order) refers to orders in favour of a party to the marriage. This is only required if paragraph 5 deals with spousal maintenance.
26. .5 Paragraph 6 is the "clean break" clause and is limited to lump sum and property adjustment orders. This is because paragraph 5 contains a periodical payments order.

The interpretation and operation of the order

27. The court order contains a mixture of undertakings and orders by the court with the consent of the parties. It is appropriate to interpret the document as a whole without regard to the technical distinction between undertakings and orders by the court. A consent order covering financial matters following a divorce is by definition reached by the agreement of the parties. It is negotiated as a package and then put into the appropriate form to be put to the court and, if accepted by the judge, to be issued as a court order. Those matters that the court has power to order will be in the operative part of the court order and will be worded as orders given by the court with the consent of the parties. The recitals to the court order will contain the background to the orders made by the court and those matters of agreement that the court has no power to order: see the speech of Lord Brandon in the House of Lords in Jenkins v. Livesey [1985] 1 All England Law Reports 106 at pages 118-119. These undertakings are nonetheless an equal part of the agreed package that is embodied in the court order.
28. My conclusion is that paragraph 5 of the order does not require the absent parent to make periodical payments to or for the benefit of Matthew and Helen. My reasons are as follows.
29. .1 The undertaking and paragraph 5 of the order are worded differently. The former is worded as maintenance for the children, while the latter is worded as maintenance for the spouse. In a short document of three double-spaced pages with wide margins it would be surprising, although not unknown, if this difference was not significant.
30. .2 As the court order was, so far as I know, in all material respects the same as the agreement between the parties, the court had jurisdiction to make an order for maintenance to or for the benefit of the children under section 8(5) of the Child Support Act 1991 and the Child Maintenance (Written Agreements) Order 1993, but it did not do so expressly.
31. .3 Head (a) of the absent parent's undertaking and the reference in paragraph 6 of the court order to section 28(1A) of the 1973 Act only make sense if paragraph 5 deals with spousal maintenance.
32. .4 At the time of the order, Matthew was 11 and Helen was 9. The court order as a whole makes sense as an arrangement that the parent with care is guaranteed a minimum income of £90 a week whatever happens, so long as both children were in full-time education (a minimum of four years), reducing after that. To see how this works out in practice, it is necessary to have regard to the operation of the court order.
33. Although the undertakings and orders are to be considered as a single package for the purposes of their interpretation, they must be considered separately in their operation. Paragraph 5 of the order operates as a order for maintenance to be paid to the parent with care. The amount and duration are limited by reference to the children's education. This is understandable without the need to interpret the paragraph as an arrangement for maintenance for the benefit of the children. A parent's financial needs dependent to some extent on whether children are in education. So long as one or both of the children are in full-time education, the parent with care is likely either to have child care expenses or to have reduced earning capacity.
34. If the parent with care remarries, paragraph 5 of the order ceases to apply, but the undertaking to pay maintenance for the children comes into effect. Likewise, if a child support maintenance assessment is made. The undertaking by the absent parent operates as an agreement to pay maintenance for the children in either or both of these cases. It takes effect as a "collateral contractual operation between the parties concerned": see the judgment of Mr Justice Buckley in the case of Re Hudson (deceased) [1966] 1 All England Law Reports 110 at pages 112-113. It does not take effect as part of the order of the court, although for some purposes it may be treated as if it were: see Gandolfo v. Gandolfo [1980] 1 All England Law Reports 833 and Symmons v. Symmons [1993] 1 Family Law Reports 317.
35. If a child support maintenance assessment is made, the undertaking operates, if necessary, to top up the amount received by the parent with care to £90 a week. This agreement is valid under section 9 of the Child Support Act 1991. The court order was obviously drafted with the child support legislation in mind. It does not purport to restrict the right of any person to apply for a maintenance assessment. Indeed, it recognises that right and the supremacy of a child support maintenance assessment. However, it goes on to do what the child support scheme does not cover. It adjusts the absent parent's overall financial obligations in the light of the child support maintenance assessment. This is a power that is left to the courts. The court order anticipates that a child support maintenance assessment may be made and makes provision to avoid the need for the parties to return to court in order to vary the order for spousal maintenance. This it achieved by tying the payments of maintenance to the parent with care to the absent parent's liability in respect of their children, so that if the latter increased the former reduced. There is general support for my conclusion that this is not caught by section 9(4) of the Child Support Act 1991 in Smith v. McInerney [1994] 2 Family Law Reports 1077.
36. When the court order is read literally and its overall operation is considered, what emerges is a coherent structure designed to benefit both parents. The parent with care benefits by guaranteeing a minimum income for a significant period. The absent parent benefits by minimising the impact of any child support maintenance assessment on his finances. There is no reason to interpret the court order in any other way than its literal meaning and good reasons not to do so.

The interpretation of "maintenance order"

37. As a matter of interpretation of the court order, I have decided that paragraph 5 of the order does not provide for maintenance for the children, but only for maintenance for the parent with care. Does this mean that the order did not "require the making ... of periodical payments to or for the benefit of the child" under the definition of "maintenance order" in section 8(11)?
38. The payments made by the absent parent under the court order would all be to the advantage of Matthew and Helen, as they would increase the pool of money available to their mother. In CCS/8328/1995, paragraph 15, the Commissioner held that (i) this did not mean that the payments were "for the benefit of " the children for the purposes of this definition, but (ii) payments could be made "for the benefit of" children, even if they were not expressly mentioned. With (i), I respectfully agree without qualification. With (ii), I also agree, but with the following qualification.
39. The orders by the court in this case were made under section 23 of the Matrimonial Causes Act 1973. That section distinguishes between (i) payments to the other party to a marriage, (ii) payments to a child of the family, and (iii) payments for the benefit of a child of the family. Orders in these terms are part of the everyday business of the family courts, whether or not made by consent. It will be only in rare cases that the terms in which the order is expressed do not determine the basis on which the payment is made. Those rare cases will always be those where the order, when properly interpreted, involves payment on some other basis that that expressed in the order. I cannot envisage a case, in which as properly interpreted, an order would give rise to the need to apportion payments between the spouse and the children, as anticipated by the Commissioner in paragraph 17 of his decision.
40. The order in this case, as interpreted, provides only for maintenance to the parent with care. So, it is not a maintenance order for the purposes of section 4(10)(a) and the child support officer is not prevented by the court order from making a child support maintenance.

The error of law in the tribunal's decision

41. The interpretation of a legal document is a matter of law. The tribunal's interpretation of the court order was wrong in law for the reasons I have given.

Summary

42. The tribunal's decision was wrong in law. So, it must be set aside. As the tribunal decided that the child support officer did not have jurisdiction to make a child support maintenance assessment, it did not investigate the matters raised in paragraph 21 of the child support officer's submission to the tribunal. In view of the passage of time in this case, it is likely that there have been a number of changes of circumstances that will have to be taken into account under section 18(10) of, and paragraph 15 of Schedule 1 to, the Child Support Act 1991. I do not have the evidence before me to give the necessary up-to-date directions to a child support officer. The most appropriate course is to refer the case to a Child Support Appeal Tribunal for determination in accordance with my directions.

Signed: Edward Jacobs

Commissioner

Date: 1st December 1998