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Neutral Citation Number:	2009 106
Reported Number:
File Number:	CCS 1375 2008
Appellant:	CMEC
Respondent:	NC
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	11/06/2009
Date Added:	24/06/2009
Main Category:	Child support
Main Subcategory:	applications
Secondary Category:	European Union law
Secondary Subcategory:	free movement
Notes:	Reported as [2010] AACR 1 Variation – meaning of “qualifying child” – whether exclusion of contact costs with child in France inconsistent with European Union law or European Convention on Human Rights The mother applied for a maintenance calculation against the father in respect of their daughter living with her in the United Kingdom. The father had Irish nationality but was resident in Great Britain. He applied for a variation of the rules under regulation 10(1) of the Child Support (Variations) Regulations 2000 to take account of the costs of contact with another daughter, who was resident in France and for whom he was paying maintenance under an order of a French court. The maintenance calculation was correctly made under the special rules in regulation 11 of the Child Support (Maintenance Calculations and Special Cases) Regulations 2000 as if the daughter in France were a qualifying child, but the variation was refused. The appeal tribunal allowed the father’s appeal on the basis that the child in France was a qualifying child under the general definition in section 3 of the Child Support Act 1991, so that he was entitled to a variation under regulation 10(1). The Secretary of State appealed. The father argued that the narrower definition in regulation 1(2) of the Variations Regulations was to be disapplied, either under domestic law as the context required a different definition, or as inconsistent with Article 12 (discrimination on grounds of nationality) or Article 18 (the fundamental right of free movement of citizens of the European Union between Member States) of the EC Treaty or with Articles 8 (respect for private and family life) and 14 (discrimination) of the European Convention on Human Rights. Held, allowing the appeal, that: 1. the appeal tribunal went wrong in law by failing to have regard to the definition of “qualifying child” in regulation 1(2) of the Variations Regulations, which replaced and narrowed the general meaning for the specific purposes of the Variations Regulations, as accepted as proper in principle in Secretary of State for Social Security v Maddocks, Court of Appeal 21.6.00, R(CS) 5/00 (paragraph 17); 2. there was nothing in the context of regulation 10 that required that the regulation 1(2) definition not be applied. as the language of the enabling power in paragraph 2(3)(a) of Schedule 4B to the Act pointed strongly against the adoption of any other meaning, the immediate legislative context was entirely neutral and the effect of the provision did not create anomalies within the Child Support scheme (paragraphs 18 to 21); 3. although the regulation of obligations to maintain children as between their parents did not fall directly within the scope of application of the EC Treaty, it was firmly established that Member States must exercise their powers on matters within their own competence which are not purely internal subject to the fundamental freedoms set out in Articles 12 and 18 (Schempp v Finanzamt München V (Case C-403/03) [2005] ECR I-6421) (paragraphs 24 and 25); 4. there was no discrimination on grounds of nationality in the Variations Regulations that required regulation 10 to be applied to the father as if the daughter in France were a qualifying child, as it was not the nationality of the child or her parents but the residence of the child and her mother in France that prevented her being a qualifying child (paragraphs 27 to 30); 5. the father had not been disadvantaged in a way that had restricted or rendered less than fully effective his Article 18(1) rights of freedom of movement between Member States, as it was not the exercise of those rights but the continued residence of the child and her mother in France that prevented her being a qualifying child (paragraph 31 to 33); 6. if the father could be said to have any family life with his daughter in France, the link was so tenuous and indirect as not to bring the circumstances within the ambit of Article 8 of the European Convention on Human Rights and even if the circumstances were within that ambit, so as to invoke in principle Article 14, there was no discrimination (paragraphs 36 to 40); 7. even if there were any difference of treatment under either EC law or the European Convention on Human Rights, that difference could easily be justified as proportionate to the legitimate objective of the primary focus on the support of children resident in the United Kingdom (paragraphs 29, 34 and 40).
Decision(s) to Download:	[2010] AACR 1 bv.doc