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Smith v. Smith and Another

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Court/Judicial body:House of Lords
Date: July 12, 2006 CRC
Provisions: Article 27: Standard of living
Other international provisions:European Convention on Human Rights, Art. 8 (Right to private life)
Domestic provisions:Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (“MASC”), as amended by the Child Support (Miscellaneous Amendments) Regulations 1999, Schedule 1, Paragraph 2A

Case summary

Background: A mother whose marriage to the father of their three children had broken down applied for a child maintenance assessment in respect of the children, who had continued to reside with her. The father, who was self-employed, claimed large deductions on his income tax and was only required by the Child Support Authority to pay child maintenance on a small portion of his earnings. The Authority dismissed an initial appeal from the mother, which was reversed on appeal with the relevant government Commissioner. The father then filed a further appeal with the Court of Appeal, which agreed with the initial assessment of his earnings.

Issue and resolution: Child support. The House of Lords held that the father should pay child support based on his total earnings before any tax deductions were taken.

Court reasoning: The Court reasoned, among other things, that the child support scheme is supposed to produce a sum which reflects both what the child needs and what the parent can afford to pay. The Court also interpreted the Child Support Regulations in line with the Convention on the Rights of the Child, which would require the father to support his children’s living conditions “within [his] abilities and financial capacities.” With this in mind, the Court concluded that child support assessments should generally be calculated by looking to a parent’s total earnings and not figured reduced by tax deductions. Dissenting Judgment: Lord Nicholls and Lord Rodger argued that the Child Support Regulations were clear in that they referred to the particular box on a self-employed person’s tax return which represents earnings after certain tax deductions, and that therefore Parliament meant for this to be the same figure used for assessing child maintenance liability.
Excerpt citing CRC and other relevant human rights 77….I see considerable force in the argument that a state which prevents a parent with care from claiming child support through the ordinary court system has a positive obligation to provide an effective alternative system. The state has a positive obligation under Article 8 of the European Convention to take steps which permit the child’s integration in his own family: see Marckx v Belgium (1979) 2 EHRR 330. The child can scarcely benefit from family life if there is not enough to live on. But I accept it is a considerable feat of interpretation to spell the “right to receive regular, reasonable maintenance” out of the right to respect for family life in Article 8. The European Court of Human Rights, however, also looks to other international human rights instruments when interpreting its own Convention. The United Nations Convention on the Rights of the Child is quite specific on this topic. Article 27(2) provides for the basic parental responsibility: “The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.” Article 27(4) requires states parties to back this up: “States parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child…””. 78. Even if an international treaty has not been incorporated into domestic law, our domestic legislation has to be construed so far as possible so as to comply with the international obligations which we have undertaken. When two interpretations of these regulations are possible, the interpretation chosen should be that which better complies with the commitment to the welfare of children which this country has made by ratifying the United Nations Convention on the Rights of the Child.

Follow up: The MASC was amended by the Child Support (Miscellaneous Amendments) Regulations 2007 SI 2007/1979 (in force 1 August 2007). “Earnings” now means the “taxable profits” rather than “total taxable profits”, and “taxable profits” means “profits calculated in accordance with Part 2 of the Income Tax (Trading and Other Income) Act 2005.” Together, these changes mean that, for the purposes of assessing liability to child maintenance, the earnings of a self-employed person are the figure after capital allowances are deducted from income.

CRIN comments: CRIN believes that this decision is consistent with the CRC. States parties’ domestic laws should be interpreted in line with the Convention, which in this case would entail asking parents to provide financial support to maintain a standard of living necessary for the development of their children. To the extent that the legislature reversed this Court’s position and brought hardship on custodial single parents caring for children, however, those actions would appear to go against the mandate in Article 27 of the CRC.

Citation: [2006] UKHL 35

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