Financial Remedies Journal: VSN v Secretary of State for Work and Pensions and JN [2022] UKUT 138 (Administrative Appeals Chamber)

VSN v Secretary of State for Work and Pensions and JN [2022] UKUT 138 (Administrative Appeals Chamber)17 May 2022

Published: 06/07/2022 09:00

Polly Morgan | Case EditorPolly is the sole author of the textbook Morgan's Family Law (Oxford University Press 2021) and contributes the chapter on financial remedies to Lamont's Family Law (2nd edn Oxford University Press 2022). An associate professor at UEA Law School, Polly is also Director of the multi award-winning UEA Law Clinic. A solicitor and law firm co-founder, she now practises exclusively in the free family law advice clinic of Norfolk Community Law Service. She is a Transparency Project committee member, former Chair of collaborative pod Good Divorce Group Norfolk, and a former committee member of the Norfolk & Norwich Law Society and Norfolk Resolution.

https://www.bailii.org/uk/cases/UKUT/AAC/2022/138.html

Upper Tribunal Judge Poynter.

This was an application for permission to appeal, persuasive but not binding, and published because it dealt with a novel situation: was a mirror order a “maintenance order” within the meaning of the Child Support Act?

In a domestic child maintenance assessment, the father was ordered to pay £105.05 per week for two children. The mother, as parent with care, argued that the Secretary of State had no jurisdiction to determine child maintenance, which was governed by an earlier Hong Kong order that required the father to pay a substantially higher amount. That order had been mirrored by an order of the Central Family Court, under Part III Matrimonial and Family Proceedings Act 1984, when the parties each subsequently moved to the UK. The mother relied on the comments of Thorpe LJ in W v W [2011] EWCA Civ 703 that the jurisdiction to make a mirror order is unclear; thus the mirror order cannot have been made under the 1984 Act; and thus it was not a maintenance order under that Act. However, she had applied pursuant to that Act, the relief was granted pursuant to that Act, and she could not identify any other jurisdiction under which she had been granted relief.

Held – The mirror order was it was a maintenance order under Part III. As it was more than 12 months old, CMS had jurisdiction: s 4(10) Child Support Act 1991. Moreover, s 10 provides (subject to some exceptions) that orders made under Part III cease to have effect on the date of an effective maintenance calculation. In any case, if there was no valid maintenance order, there was no limitation on the father’s right to apply for an assessment, so however one characterises the mirror order, the assessment would be valid.