Brough v Law: Child maintenance assessment ceased to have effect only at the end of six months continuous cohabitation

In Brough v Law [2011] EWCA Civ 1183, decided today, the Court of Appeal considered the effect of the parents' reconciliation upon a child maintenance assessment, with reference to the provisions of the Child Support Act 1991 as operative in 1999.

The Facts: The parents were married, and had a son, born in 1996. The mother made a claim for income support and was required to authorise the Secretary of State to seek child support on her behalf in respect of the child.

At a time when the parties were separated, a maintenance assessment was carried out and it was decided on 15th August 1999 that, as from 4th January 1999, the father was in principle liable to pay child support maintenance, but the actual amount of liability under the then rules was nil.

The parties reconciled on the 15th September 1999, but by November the reconciliation was over and they separated again.

The parties were divorced in 2001.

Subsequent to the divorce, the mother made a further claim for benefit. The Secretary of State decided on 9th July 2003 that, as from 24th January 2003, the father, who was by then in employment, was liable to pay child support maintenance of £94.21 a week.

On 14th February 2007, the father applied to the Secretary of State for the assessment to be cancelled, relying on the brief reconciliation in 1999. The Secretary of State agreed and cancelled the assessment as from 15th July 1999, a date amended by the Appeal Tribunal to 15th September 1999, the date on which the reconciliation commenced.

The mother appealed, but the Appeal Tribunal upheld this decision. The mother appealed again, and the Upper Tribunal allowed her appeal. The father appealed against that decision.

Held: Giving the leading judgment, Lord Justice Pill said (at paragraph 7) that the primary issue was the meaning and effect of paragraph 16(1)(b) of Schedule 1 to the Child Support Act 1991, which states that a maintenance assessment will cease to have effect "on there no longer being any qualifying child with respect to whom it would have effect". Under s. 3 of the Act (as operative in 1999), a child was a "qualifying child" if one or both of his parents was an "absent parent".

The father therefore argued that as from the date of the reconciliation neither parent was an absent parent and, accordingly, there was no longer a qualifying child. The assessment should thus have ceased to have effect at that time, and everything done subsequently was a nullity.

However, paragraph 16(1)(d) of Schedule 1 then provided that a maintenance assessment would cease to have effect: "where the absent parent and the person with care with respect to whom it was made have been living together for a continuous period of six months". The Court of Appeal held that "Parliament must have intended that an assessment would cease to have effect only at the end of six months continuous cohabitation", and not a shorter period (see judgment of Lord Justice Lewison, at paragraph 57).

This interpretation did not mean that the father was still liable to pay during the first six months of a reconciliation: the duty to make payments would in effect be suspended during the period of cohabitation and cease at the expiry of six months - see paragraph 58.

(Note that paragraph 16(1)(d) of Schedule 1 was repealed by the Child Support, Pensions & Social Security Act 2000.)