By David Burrows, David Burrows, Bristol

A parent's right to enforce child support maintenance

Secretary of State v Kehoe [2004] EWCA Civ 225

As a result of this case, parents caring for children are in a more helpless position than ever, so far as enforcement of maintenance arrears are concerned.

Kehoe holds that there is no right to child maintenance, which is capable of enforcement through the courts if that maintenance is payable under Child Support Act 1991.

A parent cannot apply to the court to enforce arrears.

The absence of a right, said the Court of Appeal (Lord Justice Ward dissenting), which could then be enforced by the courts, left the parents caring for children at the mercy of the Act in the absence of grounds for judicial review of the secretary of state's failure unreasonably to take steps to enforce arrears.

Lord Justice Ward concluded that Ms Kehoe does have a civil right that engages article 6 of the European Convention on Human Rights.

He further concluded that Ms Kehoe's inability to apply to a 'judicial body' places the secretary of state above the law and 'that imperils the constitutional safeguard of a right to a court guaranteed by the separation of powers and the rule of law to guard against arbitrary power and executive rule'.

Having found thus far for Ms Kehoe, Lord Justice Ward concludes that the scheme's aim - 'to provide for an enhanced scheme of enforcement with remedies available to the secretary of state that were not available to the court' - was legitimate.

Therefore, the scheme is compatible with convention principles and could not be challenged under Human Rights Act 1998.

Lords Justice Latham and Keene found the problem much simpler.

There is a statutory scheme.

It is to that scheme only that one must look to determine the issue of whether or not someone has rights which can be challenged in the courts.

They make no attempt - as did Lords Justice Ward - to identify or in any way to define a right (if any) to child support maintenance.

The only glimmer of hope from the case comes from the muted encouragement which the Court of Appeal gives to parents to challenge the agency by judicial review in appropriate circumstances.

But that is a far cry from the ability to enforce your own rights directly through courts.