FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 2010/06
by Mary KEHOE and Others
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 26 June 2007 as a Chamber composed of:
MrJ. Casadevall, President,
SirNicolas Bratza,
MrG. Bonello,
MrK. Traja,
MrS. Pavlovschi,
MrJ. Šikuta,
MrsP. Hirvelä, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 12 January 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, mother and four children are Irish nationals:
1. Mary, born in 1964 and living in Galway;
2. Elizabeth, born in 1982 and resident in Harrow;
3. Sinead, born in 1984 and resident in Northwood;
4. Ian, born in 1987 and resident in Harrow;
5. Niamh, born in 1989 and resident in Harrow.
They are represented before the Court by Ms L. Whitfield, a lawyer practising in London. The United Kingdom Government (“the Government”) are represented by their Agent, Ms Kate McCleery of the Foreign and Commonwealth Office, London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant married Mr K in 1983. They had four children (the second to fifth applicants). The marriage broke down and the first applicant applied for divorce. Mr K left the marital home at the beginning of 1994. The children remained with the first applicant who, in December 1993, had applied to the Child Support Agency (“the CSA”) to obtain financial support from their father for bringing up the children. There had been an oral agreement that he pay GBP 150 maintenance towards the support of the children. According to the first applicant, some payments had been voluntarily made but they had rapidly ceased. She only had a limited income from a part-time evening job and child benefit and even when she obtained full-time secretarial employment in 1994 she was struggling financially.
The CSA did not send a Maintenance Enquiry Form (MEF) to Mr K until 25 May 1995, which resulted in the applicants losing the opportunity to receive maintenance for the period prior to that date.
On 13 July 1995 Mr K returned the MEF accepting paternity. Insufficient information was given to allow a full maintenance assessment to be made. An interim maintenance assessment (IMA) was issued with effect from 5 October 1995.
Mr K’s liability changed many times after that date, inter alia as his employment changed and it proved difficult to obtain information.
According to the summary in the later High Court judgment, the key features were as follows:
By March 1996 arrears of GBP 4,244 had accumulated.
The CSA negotiated an agreement with Mr K that he would pay under the IMA, GBP 124.33 per week plus GBP 25.67 towards arrears.
On 21 June 1996 a liability order was applied for because he had breached the agreement. The order was discontinued when regular payments were resumed.
On 1 February 1999 the Secretary of State issued an apology to the first applicant for the inconvenience caused by the delay in issuing the MEF and paid her GBP 10,381.14, comprising the amount of child support she might have received up to that point if the MEF had been sent at the proper time, namely GBP 8,632.04 (inclusive of interest), and GBP 1,749.10 ex gratia compensation.
On 1 September 1999, the CSA issued a further apology about the service which she had received and made an additional “consolatory” compensation payment of GBP 110.
In December 1999 and April 2000, the CSA paid the arrears not yet received plus interest for the delay.
On 15 December 2000 a second application for a liability order was granted for GBP 6,329.24, covering arrears from May 1995 to 11 September 2000. Payments were not made and bailiffs were instructed to levy distress, but were unsuccessful.
On 31 January 2001 the liability order was registered as a county court debt. Consideration was given to a committal order but the policy was to use this only as a last resort.
On 9 October 2001 a deduction of earnings order (EO) was issued for GBP 608.80 per month, increased to GBP 889.06 on 21 February 2002. Following this Mr K again stopped paying. EOs on the company for which he was a director proved unsuccessful. In an interview with the CSA Mr K alleged that he had stopped paying as two of the qualifying children had been living with him for five years and a third had moved in recently, while the fourth had gone to live with the mother in Spain. The CSA was aware of the changed circumstances of the children and had taken this into account in assessments. Having established that the first applicant was permanently resident in Spain the case was closed on 13 January 2003 with effect from 30 September 2002. Arrears remained due however and the CSA continued to seek to enforce them.
On 8 November 2002 a committal hearing was held. Mr K admitted owing GBP 6,329.24 for the period 25 May 1995 to 11 September 2000 and GBP 13,859.12 for the period 12 September 2000 until 4 September 2002. He agreed to pay the first sum by 8 July 2003 and the latter sum at GBP 500 per month from November 2002.
Payment was not made in November 2002. He was contacted on 10 December 2002 and told that unless payment was made by 13 December 2002 committal proceedings would be restored. A payment of GBP 1,500 was made on 30 December 2002.
The applicant brought proceedings under the Human Rights Act 1998 (HRA), seeking a declaration that the provisions of the Child Support Act 1991 were incompatible with Article 6 § 1 of the Convention as they denied a parent with care of children access to court in connection with disputes as to whether the absent parent had paid or ought to pay sums due under a maintenance assessment or as to the manner in which the obligations under the maintenance assessment should be enforced and seeking damages under section 7 of the 1998 Act based on the CSA’s undue delay after 2 October 2000 in taking steps to enforce the child maintenance assessments obtained in this case. She maintained that she had expended much energy and suffered much stress in attempting to get the CSA to obtain payments for her and had been repeatedly told that the dispute was between the CSA and Mr K and did not involve herself; she believed that she would not have received a fraction of the money eventually paid if she had not continually pressurised the CSA and complained of their inaction and inability to obtain maintenance for her.
On 16 May 2003, Mr Justice Wall found that the applicant had a civil right to seek maintenance for her children from their father, such right being an autonomous substantive right, plainly recognised in English law and provided for by domestic legislation. The exclusion of the claimant from the enforcement process imposed a procedural bar on the prosecution/enforcement of the claim which engaged Article 6. He found that the court was given jurisdiction by the HRA such that if the CSA had acted in any way incompatible with the claimant’s Article 6 rights she could bring an action for damages under section 7, while any decision by the CSA not to enforce or any failure to enforce timeously or effectively would be subject to challenge by judicial review. On this basis the scheme under the 1991 Act was HRA compliant and she was not entitled to a declaration of incompatibility. He issued directions with a view to an eventual trial as to whether there had been undue delay and to determine any damages. This part of the order was stayed pending appeal to the Court of Appeal.
On 5 March 2004, the Court of Appeal upheld the Secretary of State’s appeal and dismissed the first applicant’s cross-appeal. It held, as summarised in the head note:
“"that the Child Support Act 1991 introduced a new child support system, its self- contained nature being a critical feature of its effect in domestic law; that the scheme was built firmly on the central premise that the assessment, collection and enforcement of maintenance orders should be in the hands of the Child Support Agency and consequentially it redefined the rights and obligations of parents and those caring for children; that there was no justification for departing from the general principle that Article 6 was concerned only with disputes recognisable as such under domestic law and founded on the existence of an underlying right; that under the scheme the applicant had no legal right in domestic law to a child maintenance payment of any particular amount or at all; and that, accordingly, she was unable to assert that she had an arguable civil right under Article 6 which entitled her to a determination by a court.”
The Court of Appeal further held that the judge had erred in finding that she had a right to damages to supplement her limited right of judicial review; damages could only be awarded where the Act was incompatible with Article 6, the Act does not become incompatible because of an entitlement to damages for its incompatibility.
On 14 July 2005, the House of Lords, by a majority of four to one, rejected the applicant’s appeal.
Lord Bingham of Cornhill stated in rejecting the appeal:
“[6] That a caring parent in the position of Mrs was given no right of recovering or enforcing a claim to child maintenance against an absent or non-resident parent was not a lacuna or inadvertent omission in the 1991 Act: it was the essence of the new scheme, a deliberate departure from the regime which had previously obtained. The merits of that scheme are not for the House in its judicial capacity to evaluate. But plainly the scheme did not lack a coherent rationale. The state has an interest, most directly in cases where public funds are disbursed, but also more generally that children should be adequately supported. It might well be thought that a single professional agency, with the resources of the state behind it and an array of powers at its command, would be more consistent in assessing and more effective and economical in enforcing payment than individual parents acting in a random and uncoordinated way. It might also be thought that the interposition of an independent, neutral, official body would reduce the acrimony which had all too frequently characterised applications for child maintenance by caring against absent or non-resident parents in the past which, however understandable in the aftermath of a fractured relationship, rarely enured to the benefit of the children. For better or worse, the process was deliberately changed.
[7] The 1991 Act cannot in my opinion be interpreted as conferring any right on a parent in the position of Mrs . She is of course the person to whom child maintenance will be paid, directly or indirectly and subject to any deduction of benefit, as the person who incurs the expense of bringing up the children. But the right which she had enjoyed under the former legislation was removed, and the right to recover the maintenance has been vested in the CSA...”
Baroness Hale of Richmond, dissenting, found that prior to the 1991 Act a father had, at common law, a duty to maintain his legitimate minor children which had always been unenforceable in the courts. However it had been expanded and reinforced by two kinds of statutory obligation: a private law obligation to make the payments ordered by a court under various statutes (e.g. matrimonial and family proceedings) and a public law obligation to reimburse the State for benefits paid for the children. The new scheme which transferred the task of assessing and collecting maintenance from the courts did not however remove these obligations or the corresponding right of the child to benefit from them. The obligation of a parent to maintain his children and the right of the children to have the benefit of the parental obligation to maintain them were not wholly contained in the 1991 Act. The 1991 Act left all previous law intact save precluding courts from using their powers in cases where the CSA was supposed to do it for them. Accordingly the children’s civil right to parental support survived the 1991 Act which acted not only as a limit to the extent of the obligation but also as a limit to its enforcement. Article 6 was therefore engaged.
In assessing whether the limitations on enforcement of those rights was compatible with the Convention, Baroness Hale noted that there was undoubtedly a legitimate aim. Although the non-enforceability by the custodial parent in non-benefit cases was not a necessary feature of comparable child support schemes elsewhere in the common law world, the matter had been debated. That possibility was rejected as the Government did not want to create one law for the rich and one for the poor. There were also cases where the parent with care was sometimes in receipt of benefits and at other times not. She concluded that this was just the sort of policy choice in a socio-economic field which the courts were usually prepared to leave to the judgment of Parliament, which was best able to make the decision as to which scheme would most effectively secure the recognition and enforcement of the children’s rights generally. It would be difficult to hold that the scheme as a whole was incompatible with the children’s rights to a speedy determination and enforcement of their claims. That said, she considered that the public authority charged by Parliament with securing those rights was under a duty to act compliantly with Article 6. She would therefore have allowed the appeal and restored Mr Justice Wall’s order.
Meanwhile, all money owed to the applicant was paid by 27 April 2005 and her case was closed.
B. Relevant domestic law and practice
The scheme of the Child Support Act 1991 provides for the Child Support Agency (CSA) to provide a collection/enforcement service in respect of child maintenance. It was to replace the previous court-based procedures which had been assessed as fragmented, uncertain, slow and ineffective, whereby only 30% of lone mothers and 3% of lone fathers received regular maintenance payments.
Section 1 imposes responsibility for maintaining a child on each parent. An absent parent discharges that obligation by making payments of such amount as is determined by a maintenance assessment made under the Act. By section 4 either the parent with care of the child or the absent parent may apply to the Secretary of State for a maintenance assessment to be made or to arrange for the collection of such maintenance or the enforcement of such obligation to pay such maintenance.
Section 29 empowers the Secretary of State to arrange the collection of child support; by section 31 he is empowered to make a deduction from earnings order and by section 33 to apply to the magistrates’ court for a liability order, where the person liable to make payments of child support maintenance has failed to make one or more such payments, which could be enforced in various ways including distress and sale of the absent parent’s goods, garnishee or charging orders in the county court (section 36) or finally by an application for committal to prison or for an order for him to be disqualified from holding or obtaining a driving licence. The Secretary of State also has powers under regulations to obtain information.
The 1991 Act draws a distinction between cases in which the parents with care are in receipt of State benefits and those in which they are not. By section 4 the former are given the entitlement to apply for an assessment; by section 6 the latter must, if required by the Secretary of State, authorise action to be taken under the Act to recover maintenance from the absent parent. In the latter case the entitlement to payments under the assessment enures not to the benefit of the parent with care but to the Secretary of State. Under section 4, the Secretary of State has a discretion whether or not to take enforcement proceedings.
The statutory scheme excludes the jurisdiction of the court to make, vary or revive any child maintenance order (section 8(1) to (3)). By virtue of section 8(5) the court is however empowered to make a maintenance order where the parties have made a written agreement (i.e. a consent order) providing for periodical payments for the benefit of the child.
COMPLAINTS
The applicants complained under Article 6 of the Convention firstly, of the unreasonable delay in enforcing Mr K’s obligations and secondly of the first applicant’s inability to bring proceedings in her own name, or on behalf of the children directly against Mr K. The applicants submitted that the first applicant had a civil right to apply for a maintenance assessment and that the making of an assessment created an obligation on Mr K to pay. The delay caused by incompetence or by reasons other than a lawful exercise of the discretion not to enforce payments breached Article 6 – to hold otherwise would render her or her childrens’ civil rights nugatory.
They complained under Article 13 of the Convention that the decision of the House of Lords meant that the first applicant had no effective remedy against the delays of the CSA and in particular no entitlement to bring an action in damages or to recover interest in respect of the delays.
THE LAW
The applicants complained about delays in payment of child support and lack of access to court and effective remedies, invoking Articles 6 and 13 of the Convention.
Article 6 provides as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... fair hearing within a reasonable time by [a] ... tribunal...”
Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] 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.”
A. Preliminary objections
1. The parties’ submissions
a. The Government
The Government asserted that the first applicant had not exhausted domestic remedies in respect of the delay occurring before 2 October 2000 as she did not bring any judicial review proceedings to complain of delay and that in respect of delay after that date she did not bring proceedings until May 2002 and even then only pursued claims under the HRA without taking advantage of any claim for breach of common law principles regarding delay by the CSA. Insofar therefore as concerned the delay before 2 October 2000, the applicant had failed to bring her complaints within six months of that period and her application was out of time in that regard. They also pointed out that the first applicant’s case before the domestic courts had not relied on any right of the child applicants and thus the Secretary of State had made no submissions on the point and no judge, save Baroness Hale, had examined the issue.
The Government argued that the CSA had apologised for the delay before May 1995 paying the lost maintenance, interest and ex gratia compensation, and that she received interest payments for late payments for the periods of 6 November 1996 to 13 May 1997 and 14 May 1997 to 17 August 1999 and that the applicants could not claim to be victims any more in that regard. It was also far from clear that the second and third applicants could claim to be victims as for considerable periods they were living with Mr K and were directly supported by him.
The Government denied that the applicants enjoyed any civil right to receive child maintenance payments from Mr K. Relying on Roche v. the United Kingdom [GC], no. 32555/96, ECHR 2005‑...), they argued that Article 6 § 1 did not guarantee any substantive content for the law and that the House of Lords had analysed the matter in a comprehensive and convincing matter, finding that there had been a conscious decision by Parliament to restrict rights of action in the courts and to divert claimants instead to a purpose-built statutory scheme. There were no strong reasons for the Court to differ from this conclusion and to the extent that Baroness Hale dissented, her analysis was flawed.
b. The applicants
The applicants disputed that there had been any effective remedy offered by judicial review in respect of the delays and argued that the period had to be calculated as a whole as regarded the application of the six month rule. They considered that they continued to have victim status notwithstanding the payment of the money owed, with interest, since she had to invest considerable time and energy into pushing the CSA into action and had been deprived of a reasonable, reliable and regular income.
The applicants argued that it was accepted that the first applicant had a civil right to apply for maintenance and that Mr K had an obligation to pay maintenance. She also had the right to enforce the obligation by requiring the Secretary of State to take action. This was sufficient to show that she had a right. The fact that she was deprived of any involvement in the enforcement process, although she and the children were the only practical beneficiaries, disclosed a procedural bar not the lack of any substantive right. The insistence on public law enforcement was, in their view, a matter of form not substance. The House of Lords’ failure was a failure properly to apply Convention concepts, not a failure to understand domestic law.
2. The Court’s assessment
a. Victim status (Article 34 of the Convention)
The Court recalls that an individual can no longer claim to be a victim of a violation of the Convention when the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress as appropriate (see, amongst many authorities, Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 66). In the present case, it agrees with the Government that where the applicants received an apology and ex gratia compensation and interest for the undue delay in processing the initial maintenance enquiry, any breach was acknowledged in substance and redress given. Similarly, insofar as the interest was paid on late payments, following an acknowledgement of fault, this also may be regarded as removing the applicants’ victim status. This nonetheless leaves the periods from May 1995 to 5 November 1996 and 18 August 1999 to 27 April 2005 in respect of which alleged delays in payment persisted. Insofar as the Government appeared to dispute that the child applicants could claim to be victims since they were living with Mr K and therefore supported by him, the Court notes that it is not contended that, nonetheless, the maintenance payments assessed by the CSA were not owed. It rejects that argument.
b. Exhaustion of domestic remedies (Article 35 § 1 of the Convention)
As concerns exhaustion of domestic remedies, the Court would note that the Government asserted that the applicant could have taken judicial review proceedings for any failure by the CSA to discharge its public law obligations. It is true that the principal thrust of the applicant’s complaints is that she is deprived of the opportunity of enforcing those obligations herself in breach of the Convention and the Court does not consider that the judicial review option would have addressed that complaint, which was raised, and rejected in her human rights application. However, insofar as the applicant also complains in more general terms of the unreasonable delay in enforcing Mr K.’s obligations, it would appear to the Court that the possibility of applying for judicial review concerning any failures or omissions on the part of the CSA or Secretary of State did exist. The applicant did not make use of it, for the reasons she gave above. The issue as to the extent to which judicial review could have furnished her with an adequate means of dealing with the dispute is closely linked with the substance of her complaint as to the lack of effective access to court and the Court considers it appropriate to join it to the merits.
Further, while the Government pointed out that the first applicant had not, as such, argued, or pressed the case, from the point of the view of the children during the proceedings, it would appear nonetheless that the matter of their rights was considered by the final instance, the House of Lords, in that the Baroness Hale gave their position detailed consideration and other judges rejected the possibility in very brief terms. Insofar as it might be considered procedurally unfair that the Government did not make submissions on the children’s situation as they did not perceive the necessity, this does not affect the fact that the matter was, in substance, raised in the domestic forum and the Court does not therefore consider that any point of non-exhaustion arises in this respect.
c. Six months rule (Article 35 § 1 of the Convention)
As concerns the six months’ point raised by the Government, the Court does not consider that it is relevant, for the purposes of its examination, that the period of delay straddled the coming into force of the Human Rights Act 1998 which is of relevance rather to the competence of domestic courts. Insofar as the applicant could claim to have a civil right and that there was undue delay in the determination of that right, the six month period runs from the end of that period, namely, when, finally, the payments were made up. This objection is dismissed.
d. Competence ratione materiae (Article 35 § 3 of the Convention)
The Court recalls that Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (see e.g. Z and Others v. the United Kingdom [GC], no. 29392/95, § 91, ECHR 2001‑V). It does not, however, guarantee any particular content for those (civil) “rights” in the substantive law of the Contracting States: the Court may not create through the interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (Fayed v. the United Kingdom, judgment of 21 September 1994, Series A no. 294‑B, § 65). The guarantees extend only to rights which can be said, at least on arguable grounds, to be recognised under domestic law.
In assessing therefore whether there is a civil “right”, the starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (Masson and Van Zon v. the Netherlands, judgment of 28 September 1995, Series A no. 327-A, § 49). Where, moreover, the superior national courts have carried out an analysis in a comprehensive and convincing manner, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law (Z and Others, cited above, § 101) and finding, contrary to their view, that there was arguably a right recognised by domestic law (Roche, cited above, § 120).
Turning to the present case, the Court notes that the Court of Appeal and House of Lords were, largely, unanimous in finding that domestic law bestowed no right on the first applicant to sue Mr K for child payments and that she has no arguable civil right under Article 6 in that regard. This Court cannot but agree with that conclusion. The terms of the relevant legislation are unequivocal. In that respect therefore the applicant’s complaints about her inability to sue Mr K in person must be rejected as incompatible ratione materiae. Nor does the Court find a “right” for the applicant children in this case, the domestic courts, save for one judge, rejecting the possibility. In any event, the Court would note that, in practical terms, the first applicant in this case represents the interests of the children and no separate issue would, on the facts of the present application, arise for determination.
However, that is not the end of the matter. The first applicant makes a broader complaint about the delays in the enforcement of the child maintenance awards by the CSA and Secretary of State. It remains to be determined whether this falls within the scope of Article 6 § 1 of the Convention. The parties appear agreed that the applicant enjoyed a right to apply to the CSA for maintenance. While the Government argued that this was a public law right and outside the “civil sphere” the Court is not so persuaded. The notion of “civil rights and obligations” has an autonomous meaning independent of domestic classification (König v. Germany, judgment of 28 June 1987, Series A no. 27, § 89 and, more recently, Ferrazzini v. Italy [GC], no. 44759/98, §§ 24-31, ECHR 2001-VII). Even if the matter has, in domestic law terms, been brought within the realm of public duties and obligations, it is nonetheless the case that the right to apply for child support was, previously, civil in nature and dealt with generally in family proceedings. Nor has the nature of that right been transformed merely because of the legislative change in the mechanism of assessment and collection of the maintenance. It is necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation (Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, § 38). The applicant was claiming an interference with her means of subsistence, an individual, economic right flowing from specific rules laid down in a statute (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, § 46), and it is irrelevant for that purpose that the claim was to be satisfied by sums paid via the State which had taken on the task of obtaining them from Mr K.
The Court recalls that there was no dispute as to the amount of the award. The applicant’s application for maintenance was granted by the CSA which proceeded to make the appropriate calculations under the legislation. However, from an early stage, it became apparent that there were difficulties in obtaining payment of the sums due from Mr K. The applicant made frequent complaint concerning arrears and shortfalls and the CSA were well aware of her problems. In the circumstances, the Court considers that the applicant may claim a right of access to court to seek redress for the delays in obtaining the maintenance to which she was entitled.
As a final remark, the Court would point out that the CSA is not itself a judicial body determining disputes about civil rights, and Article 6 cannot apply directly to its procedures.
e. Conclusion
In sum, the Court rejects the preliminary objections save insofar as redress was given for some of the periods of delay as identified above, insofar as concerns the applicant children and insofar as the first applicant (hereinafter “the applicant”) complains about her inability to sue Mr K directly. The applicant’s complaints concerning the delays by the CSA in paying maintenance for the periods from May 1995 to 5 November 1996 and from 18 August 1999 to 27 April 2005 fall within its competence and insofar as any argument of non-exhaustion is raised, this is closely connected with the substance of the applicant’s complaint of lack of effective access to court in this respect and should be examined on the merits.
B. Articles 6 and 13 of the Convention
1. The parties’ submissions
The Government submitted that the new scheme constituted a proportionate restriction on the applicant’s right of access to court as it sought to improve the system of recovery of maintenance from non-resident parents, relieved parents with custody of having to proceed in their own names, allowed an administrative recovery scheme which could impose deductions of earnings orders without judicial decision and relieved taxpayers of the burden of subsidising the maintenance obligations of defaulting parents. In brief, it was a complex socio-economic decision which fell within the margin of appreciation of the Contracting State. There was, in any event, no basis for supposing that the applicant could have been more successful herself in securing payments from Mr K given his determination to default. The applicant had limited rights of appeal to the Appeal Tribunal and the remedy of judicial review to compel the Secretary of State to take enforcement action. The issue of how child maintenance ought best to be collected was a complex one in respect of which practice differed from state to state. This was therefore a very different situation from that pertaining in Philis v. Greece (no. 1) (judgment of 27 August 1991, Series A no. 209), where there was no obvious justification for intervening in the private contractual relationships between an engineer and his clients to remove the ability to sue for fees directly. Further, they argued that there was no breach of the reasonable time requirement, since it had never been suggested that the applicants had a civil right to receive any particular amount of maintenance at any particular time and the applicants had not identified by what dates particular amounts should have been paid.
As regarded Article 13, the Government submitted that judicial review was an effective remedy to end delay even if not to provide financial redress. There was in any event no right to a remedy to challenge a legislative provision while after 2 October 2000 the applicant could and did raise her complaints in HRA proceedings albeit she was unsuccessful.
The applicant submitted that it was not compatible with Article 6 to remove her from the enforcement process, in particular as she was the only one with interest in the dispute. The scheme as set up was inefficient and ineffective, the CSA showing itself incapable of taking directed or consistent enforcement actions, being fobbed off readily by the unsophisticated tactics of Mr. K. This placed an excessive and disproportionate burden on her and deprived her of the "essence" of her right, in which respect she relied on Philis v. Greece (No. 1) (cited above).
She argued that the Government’s approach was formalistic and unreal and that there was no good reason for preventing individuals such as the applicant of the option of enforcing their claims directly against the absent parent, as was the case in other jurisdictions such as Australia and New Zealand. The possibility of applying for judicial review every time the CSA failed to act effectively was not a practical option.
The applicant submitted under Article 13 that she had no effective remedy against the delays of the CSA and no entitlement to bring an action in damages or recover interest in respect of delays. Her ability to force the CSA to take enforcement action by judicial review did not give her any remedy in respect of delay that had already occurred.
2. The Court’s assessment
Having regard to the applicant’s complaints and the parties’ submissions, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. The application cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court unanimously
Decides to join to the merits the Government’s objection concerning non-exhaustion of domestic remedies in respect of the applicant’s complaint that she had no effective access to court concerning failures or omissions of the CSA or Secretary of State;
Declares admissible the application insofar as it concerns the applicant’s complaints concerning the delays by the CSA in paying maintenance for the periods from May 1995 to 5 November 1996 and from 18 August 1999 to 27 April 2005;
Declares the remainder of the application inadmissible.
T.L. EarlyJ. Casadevall
RegistrarPresident
Full & Egal Universal Law Academy