(Queen's Bench Division (Administrative Court); Slade J; 19 December 2008)
The mother applied for a maintenance assessment to be made under Child Support Act 1991. The Child Support Agency made an assessment of £34.10 p.w.; the Agency later informed the father by letter that he was to pay the maintenance to the mother using Transcash. However, for the relevant period the father was, by agreement with the mother, paying the mother the mother's share of joint mortgage payments on the former family home, in lieu of child maintenance. The father did not pay the mother any money using Transcash and the Secretary of State applied to the magistrates' court for a liability order in respect of child maintenance arrears. The magistrates made a liability order under s 33 of the 1991 Act, in the sum of £4,016.20. The father appealed by way of case stated, and the question referred by the magistrates was, in a case in which the mother was not in receipt of benefits, whether magistrates were obliged to make the liability order if satisfied that payment of child support maintenance had been made, but by a method other than that notified by the Child Support Agency to the father.
While s 33(6) of the 1991 Act required a magistrates' court to find that child support maintenance had not been paid if not paid to or through the person specified, by virtue of Child Support (Collection and Enforcement) Regulations 1992 (SI 1992 No 1989), no similar provision required the magistrates to find that payment had not been made if it had not been made by the method specified. Therefore, magistrates were not obliged to make a liability order if satisfied that payment had been made by the liable person but by a method other than that notified by the Agency; if this were not the case, cash payments would not be recognised if the specified payment method were a cheque. The question whether the father's payment of the mother's mortgage liability was payment of child maintenance had not been referred to the court; the question posed by the magistrates was predicated on a finding that the father had paid the maintenance, but not by the method notified by the Child Support Agency.