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R (Brookes) v. Secretary of State for Work and Pensions [2010] 1 W.L.R. 2448 (CA)

DATE: 29 Apr 2010

The leading case on the impact of the 'welfare principle' under s.2 of the Child Support Act 1991 and of Article 8 ECHR on the discretion of the Child Maintenance and Enforcement Commission to seize goods from the family home of a person owing arrears in child support maintenance and/or to seek his committal to prison.

Section 2 of the Child Support Act provides:
"Where, in any case which falls to be dealt with under this Act, the Commission is considering the exercise of any discretionary power conferred by this Act, it shall have regard to the welfare of any child likely to be affected by its decision."

When exercising its discretion instruct bailiffs to seize goods from the family home of a person owing arrears in child support maintenance and/or to seek his committal to prison, the practice of the Child Support Agency, and latterly the Child Maintenance and Enforcement Commission, was to recite in its decision document that "under section 2 of the Child Support Act 1991 I have given regard to the regard to the welfare of any child likely to be affected by my decision". The first issue in the present case was whether this was whether or not the use of this standard formula demonstrated compliance in substance with the duty under s.2 of the Child Support Act 1991 in circumstances where the Commission knew that there were dependant children who were living with the person against whom enforcement action was to be taken, and who were likely to be adversely affected by such action.

The second issue was the approach to Article 8 ECHR in such cases and whether, in the circumstances of the present case, the Commission's decision to take these draconian enforcement steps against the Appellant amounted to a disproportionate interference with the right to respect for private and family life that his children and second wife enjoyed with him.

Giving the lead judgment, Hughes LJ held that the formula used by the CMEC was indeed sufficient to comply with s.2 of the 1991 Act, and that any interference with Article 8 ECHR was proportionate.

Charles Banner appeared for the Appellant as sole counsel in the Court of Appeal, instructed by David Burrows Solicitors and Advocates. Samantha Broadfoot appeared for the Secretary of State and the CMEC.