CMEC v Mitchell: Child support and the Limitation Act

Strange how things happen. Only this morning I was reading a report from America about an 81-year-old woman who is suing her ex-husband for child support that he was supposed to start paying sixty years ago. That got me idly thinking about the possible application of the Limitation Act to child support. A few hours later I came across the report of CMEC v Mitchell on Bailii.

The case involves the ever-ingenious David Burrows, who sought to claim that the Act applied to applications by CMEC under s.39A Child Support Act 1991 for the issue of a warrant committing the liable person to prison or for an order for him to be disqualified from holding or obtaining a driving licence. Mr Burrows represented David Mitchell, who owed child support arrears of £14,592.07, having only ever paid the princely sum of £9, and having at one point made himself bankrupt with the express purpose of avoiding payment of child support.

Needless to say, CMEC (and its predecessor, the Child Support Agency) obtained a liability order (on 24th January 2002) and thereafter made numerous attempts to enforce payment against Mr Mitchell, but without success. They therefore made an application under s.39A. The Magistrates' Court rejected the argument that that the application should be struck out on the basis that it was barred by the Limitation Act 1980 (having been made more than six years after the making of the liability order), and disqualified Mr Mitchell from driving for 12 months, suspended on the basis that he pay £5 per week in child maintenance arrears.

Mr Mitchell appealed to the County Court, where his limitation argument was accepted. CMEC then appealed against the County Court order, contending that as a matter of law the Limitation Act 1980 does not apply to an application pursuant to s.39A of the Child Support Act 1991.

The Court of Appeal allowed the appeal. Lord Justice Thorpe agreed with CMEC's submission that the section 39A procedure fell without the express wording of section 9 of the Limitation Act, namely "an action to recover any sum recoverable by virtue of any enactment". "That is because neither of the two possible orders that can be obtained under section 39A will result directly in the recovery of the sums due by way of child maintenance", he said, even though s.39A may "pressurise the parent who is wilfully refusing or culpably neglecting either to meet his financial obligations or to suffer a distasteful alternative".

A decision that may smack a little of semantics, but nevertheless surely ends up with the correct result.


  1. Does child support arrears (by court order rather than CSA) accrue interest in England please?

    I think I know with the CSA it doesn't, but am wondering if it is done in Divorce order and not paid if interest accrues at 8%?

  2. I am prepared to be corrected on this, but my recollection is that interest is not generally recoverable on maintenance arrears. Certainly, it does not accrue automatically.

  3. I note Thorpe LJ's words "wilfully refusing or culpably neglecting .. to meet his financial obligations”. What about a case where the CSA had several opportunities to tell the Non resident parent (NRP) that he owes £12000 from 1994 but did not do so. In fact, CSA only contact the NRP in 2011 - nearly 17 years after the event - but still insists on its right to go for a liability order and attachment of earnings.

    Did Thorpe LJ miss something or is there a loophole to allow the Statute of Limitations in?

    Any comments gratefully received.



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