Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26521/95

by Clive PARSONS

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 27 November 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 October 1994

by Clive PARSONS against the United Kingdom and registered on

15 February 1995 under file No. 26521/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British national, born in 1956 and resident

in Edinburgh, Scotland. He is represented before the Commission by

Mr. Cameron Stuart Fyfe, a solicitor. The facts as submitted by the

applicant can be summarised as follows.

A. Particular circumstances of the case

The applicant married his former wife ("SP") on 6 June 1978.

They had two children, CP born on 26 November 1978 and AP born on

13 May 1982. At the time of the divorce settlement the parties reached

a matrimonial agreement with the assistance of their legal

representatives. On 7 October 1988 Pontypridd County Court issued a

Court Order giving effect to this agreement. That Court Order provided

that the applicant transfer to SP his entire estate and interest in the

former matrimonial home and its contents, that the Life Assurance

policy be surrendered and the proceeds divided equally between SP and

the applicant, that the provisions be in full and final satisfaction

of both parties' claims against each other under the Married Women's

Property Act 1882, the Inheritance (Provision for Family and

Dependants) Act 1975 and the Matrimonial Causes Act 1973 (as amended).

It further provided that the applicant pay directly to each of the two

children periodical payments in the sum of £5.00 per week until they

had each attained the age of 17 years or had completed their full-time

education (which-ever was the later).

At the time of transfer the house was worth between £25,000 and

£30,000 excluding an outstanding mortgage of £10,000 on the property.

The applicant claims that SP agreed to a relatively small amount of

maintenance being paid on the basis that she received the house and

furniture.

SP subsequently got engaged to X, who lives in the former

matrimonial home. The applicant claims that X runs a health club where

SP works as a teacher and from which X gains a considerable income.

The applicant believes that SP also claims income support.

The Child Support Agency ("CSA") assessed the applicant's

liability to pay child support under the Child Support Act 1991 ("the

1991 Act") as £127.13 per week from 4 October 1993. At that time the

applicant was working as a driver for Sunblest Bakeries and had a net

income of about £182.00, after having paid his share of an existing

mortgage with his new wife (£250 per month), community tax (£26.70 per

month), petrol (£10 per week), maintenance under the Pontypridd Court

Order referred to above (£10 per week), a bank loan (£98.15 per month)

and an insurance policy (£33.61 per month).

On 8 November 1993 he was required to stop work because he needed

an operation on his knee. He was advised by his doctor that he would

not be able to return to work before June 1995. Since November 1993

the applicant has been in receipt of Invalidity Benefit and has been

advised by the Department of Social Security to cease making

maintenance payments until he regains employment.

The applicant states that as soon as he recommences employment

the CSA will again pursue him for maintenance payments under the

1991 Act. He states that the financial pressure put on him as a result

of the actions of the CSA affected his health to such an extent that

in December 1993 he became so severely depressed as to attempt suicide.

He was taken to hospital and detained overnight.

B. Relevant domestic law and practice

Assessment of child maintenance

The Child Support Act 1991 (the Act) provides for the assessment,

collection and enforcement of periodical maintenance payable by parents

in respect of children not in their care. The Act was designed to

improve the position of children whose parents live apart. Research

commissioned for the government white paper ("Children Come First",

1990 Cm. 1264) had indicated that 30 % of lone mothers and 3% of lone

fathers received regular child maintenance and that the average payment

was very low. It was considered that the burden of supporting lone

parents fell largely upon the State.

The amount of child support maintenance payable by an absent

parent is fixed in accordance with a formula set out in Schedule 1 to

the 1991 Act, which takes into account four separate elements: the

amount needed to support the child, the assessable income of the

parents, the deduction rate or proportion of the assessable income

which will go to the child and the protected income, which is intended

to ensure that the standard of living of the absent parent is

maintained at a minimum level (the amount needed for basic living

expenses).

A parent with care of a child may apply to the Secretary of State

for a maintenance assessment to be made. Where a parent caring for a

child claims state benefits (eg. income support, family credit) he or

she may be required to authorise the Secretary of State to recover

child support maintenance from the absent parent (section 6).

Once a maintenance assessment is made, any prior maintenance

agreement becomes unenforceable insofar as it relates to periodic

maintenance payments for the children concerned (section 10 (2)).

To implement the provisions of the 1991 Act, the Child Support

Agency (CSA) was established.

Review procedures

Pursuant to sections 17 and 18 of the 1991 Act, a person may

request the review of a maintenance assessment by a child support

officer if there has been a material change of circumstances since the

assessment was made or where the assessment was made in ignorance of,

or in mistake as to, a material fact, or was wrong in law.

Pursuant to section 20, any person aggrieved by the decision of

a child support officer on such a review may appeal to the Child

Support Appeal Tribunal. The President of the Tribunals, a lawyer of

at least 10 years' standing, is also President of the Social Security

Appeals Tribunals and is appointed by the Lord Chancellor. Each

Tribunal consists of a Chairman and two other persons. The Chairman is

required to be a lawyer of 5 years's standing, while the other persons

are drawn from a panel constituted by the President who have knowledge

or experience of the area where they are to work and be representative

of the persons living or working in the area.

Appeals on points of law from the Tribunal lie to a Child Support

Commissioner who is a solicitor or barrister of more than 10 years

standing (section 24). Leave must be granted by either the Chairman of

the Tribunal which heard the case or by the Commissioner. If he finds

that a decision appealed against is wrong in law, he must set it aside

and either make the decision himself or send it back to the Tribunal

or to a different Child Support Officer with directions as to how it

is to be determined.

Appeal may be made on point of law from the Commissioner's

decision to the appropriate court, namely the Court of Appeal or the

Court of Session (section 25). Leave must be obtained either from the

Commissioner or from the Court of Appeal or Court of Session.

COMPLAINTS

1. The applicant complains that he has been deprived of the right

to have his civil rights and obligations determined by a court or

independent tribunal as provided by Article 6 of the Convention. The

applicant claims that since judicial review does not allow

reconsideration of the merits it is inappropriate for the purposes of

Article 6.

2. The applicant further complains under Article 8 of the Convention

that the operation of the 1991 Act overrode a previously existing court

order between the applicant and his wife such as to constitute an undue

interference and a denial of respect for his family life as guaranteed

by Article 8 of the Convention.

3. The applicant further complains under Article 13 of the

Convention that he has no remedy under the 1991 Act to seek a review

of the sum claimed from him since the only circumstances in which a

remedy is available under the 1991 Act is where the applicant claims

that there has been an error in the calculation of the amount of

maintenance due. He accepts that the figure calculated by the CSA is

correct under the 1991 Act.

THE LAW

1. The applicant complains under Article 6 (Art. 6) of the

Convention that he has been deprived of his right to have his civil

rights and obligations determined by an independent tribunal. Article

6 (Art. 6) provides so far as relevant, as follows:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The Commission refers to its recent decision in

Application No. 24875/94, Dec. 6.9.96., in which it recalled that,

while Article 6 para. 1 (Art. 6-1) guarantees to everyone who claims

that an interference with his "civil rights" is unlawful the right to

submit that claim to a tribunal satisfying the requirements of that

provision (Eur. Court H.R., Le Compte, Van Leuven and De Meyere

judgment of 23 June 1981, Series A no. 43, p. 20, para. 44), Article

6 (Art. 6) does not in itself guarantee any particular content for

"rights and obligations" in the substantive law of Contracting States

(cf. Eur. Court H.R., James and others v. the United Kingdom judgment

of 21 February 1986, Series A no. 98, p. 46, para. 81; Lithgow and

others v. the United Kingdom judgment of 8 July 1986, Series A no. 102,

p. 70, para. 192) and the claim or dispute to be submitted to a

tribunal must be of a "genuine and of a serious nature" (cf. Eur. Court

H.R., Benthem judgment of 23 October 1985, Series A no. 97, p. 14,

para. 32).

The Commission notes that the applicant accepts that the

maintenance assessment imposed on him by the CSA from 4 October 1993

was calculated correctly under the 1991 Act. It further observes that

the applicant ceased to be affected by that assessment on

8 November 1993, from which date he was no longer required to make

maintenance payments. Further, the Commission notes that his

application before the Commission was only introduced on

21 October 1994, that is eleven months after he ceased to be affected

by any decision of the CSA. No further assessment of liability by the

CSA appears to have been carried out.

Even assuming compliance with the six month time-limit imposed

by Article 26 (Art. 26) of the Convention, the Commission considers

that in view of the fact that the applicant accepts that the

calculation of maintenance payment was correct under the 1991 Act, the

applicant has not shown any dispute of a "serious and genuine nature"

in respect of which the applicant has been denied access to court.

Further, as regards the applicant's claim that he is subject to

a continuing situation since he will be subject to an assessment by the

CSA and required to pay maintenance under the 1991 Act as soon as he

returns to work, the Commission notes that until such an assessment is

made there cannot be said to have been any determination of the

applicant's civil rights and obligations to which Article 6 (Art. 6)

would apply.

It follows that this part of the application must be dismissed

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant further complains under Article 8 of the Convention

that the overriding of the court order laying down the applicant's

liability to SP by the operation of the 1991 Act constituted an undue

interference into and a failure to respect his family life. Article 8

(Art. 8) provides so far as relevant, as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence."

The Commission recalls that Article 25 (Art. 25) of the

Convention does not permit individuals to complain against the law in

abstracto simply because they feel it contravenes the Convention. In

principle, it does not suffice for an individual to claim that the mere

existence of a law violates his rights under the Convention; it is

necessary that the law should have been applied to his detriment (Eur.

Court HR, Dudgeon v. the United Kingdom judgment of 22 October 1981,

Series A no. 45, p. 18, para. 41; Dec. 14631/89, p. 307 with other

references).

The Commission recalls that the applicant ceased to pay any

maintenance under the 1991 Act on 8 November 1993. While the applicant

appears to complain of a continuing situation arising out of a

potential liability under the 1991 Act should he recommence work, the

Commission notes that the applicant has not explained how this can be

said to affect his present family life. The Commission considers that

in these circumstances the applicant can no longer be regarded as a

victim after that date within the meaning of Article 25 (Art. 25) of

the Convention of any alleged violation of Article 8 (Art. 8) of the

Convention.

Insofar as the applicant complains about the assessment of

4 October 1993 and payments made between that date and 8 November 1993,

the Commission recalls that eleven months elapsed before the applicant

submitted his complaints to the Commission and that as such they were

not submitted within the requisite six month time period laid down by

Article 26 (Art. 26) of the Convention.

It follows that this part of the application must be dismissed

as out of time in accordance with Article 27 para. 3 (Art. 27-3) of the

Convention.

3. The applicant further complains under Article 13 (Art. 13) of the

Convention, which provides as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

Insofar as the applicant complains under Article 13 (Art. 13)

of the Convention in relation to his complaint under Article 6 para.

1 (Art. 6-1) of the Convention as to a denial of access to court, the

Commission recalls that, in accordance with the established case-law

of the Convention organs, Article 6 para. 1 (Art. 6-1) of the

Convention provides a more rigorous procedural guarantee than Article

13 (Art. 13) of the Convention and therefore operates as a lex

specialis with regard to a civil right, to the exclusion of the more

general provisions of the Convention (cf., for example, No. 11949/86,

Dec. 1.12.86, D.R. 51, p. 195).

Insofar as the applicant invokes Article 13 (Art. 13) in respect

of his complaints under Article 8 (Art. 8) of the Convention, the

Commission recalls that Article 13 (Art. 13) of the Convention requires

a remedy in domestic law only in respect of grievances which can be

regarded as "arguable" in terms of the Convention (Eur. Court H.R.,

Powell and Rayner judgment of 21 February 1990, Series A no. 172, p.

14, para. 31). The Commission finds that the applicant cannot be said,

in the light of its findings above, to have an "arguable" claim that

his rights guaranteed by the Convention have been violated.

It follows that this complaint must also be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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PARSONS v. THE UNITED KINGDOM

PARSONS v. THE UNITED KINGDOM