November 4th, 2012 by Robert Franklin, Esq.
Two British fathers have prevailed in their lawsuit against England’s Child Support Agency. The much maligned and soon to be defunct agency was called “obnoxious” and “unreasonable” by the Court of Appeal because it routinely failed to provide even the most elementary of due process rights to fathers in child support cases. Read about it here (Marilyn Stowe Blog, 10/31/12).
British fathers have been complaining for years about the CSA’s high-handed behavior, and Christopher Gibbons and Kambiz Karoonian decided to do something about it. Both men were sentenced to serve prison time for failure to pay the support they owed – or the CSA said they owed – to their custodial ex-wives. The only problem was that the CSA often gives fathers no opportunity to defend claims against them and, when it does, the fathers often find the burden of proof to be placed on them instead of on the agency. That of course turns the presumption of innocence on its head.
So the two fathers brought suit claiming their rights under the European Convention on Human Rights had been denied, and the Court of Appeal agreed. One child support specialist involved in the case sketched the practices of the CSA this way:
Stephen Lawson, a child support specialist who helped to bring the test case, welcomed the ruling:
“I hope this ruling will now end the unjust practice of non-resident parents, usually fathers, being jailed or threatened with jail without the opportunity to defend themselves properly. Parents may have heard nothing from the CSA for many years and then suddenly out of the blue they receive a demand for thousands of pounds. Many are simply unable to pay and are met with an application to put them in prison or disqualify them from driving.”
He added:
“In another recent case, a father was arrested, taken to court and sent to prison all on the same day, with no opportunity to challenge the evidence against him. The CSA has been sending summons notices through the post, often to an old address, so this has led to some parents being tracked down and arrested, knowing nothing of the court proceedings. And the onus has been on the parent to prove why he shouldn’t be sent to prison, which reversed the traditional burden of proof. Th[is] ruling means the burden of proof, the serving of summons notices and disclosure of documents will now be improved to a level similar to criminal proceedings – which is only fair if people are threatened with the ultimate sanction of imprisonment.”
All of that is reasonable enough. If we didn’t know as much as we do about the system of family courts, we might be surprised to learn that due process of law as basic as notice of the charge, an opportunity to defend oneself and the presumption of innocence aren’t routinely accorded fathers accused of failing to pay support. But we do know about family courts, so we’re not surprised in the least. For the information of non-lawyers, there are certain basics of due process of law, i.e. things without which there is no due process of law. These concepts are centuries old. They include notice of the charge, an opportunity to defend the charge including calling witnesses on one’s behalf, the charging party bearing the burden of proof and the right to have the charges adjudicated by an impartial tribunal. Of those four, the CSA denied (and has denied for many years) three to non-custodial fathers. In effect, the CSA turned back the legal clock for non-custodial fathers to pre-Magna Carta days.
Child Support Agency: Due Process of Law Requirement ‘Very Disappointing’
And, not unlike King John at the time, the British government is outraged that it’s forbidden to do what it pleases.
No one will be surprised to hear that the Department for Work and Pensions is unhappy with the judgement. A spokesman said:
“It is extremely disappointing that parents who have flouted their legal responsibility to financially support their children have invoked the Human Rights Act to seek to continue to do so.”
Perhaps – but if this judgement is correct, hasn’t the CSA flouted its legal responsibilities too?
The spokesman added:
“Regrettably, we need every enforcement measure at our disposal to ensure the minority of irresponsible parents pay for their children. It is important to stress that this judgement does not question the legality of bringing parents who repeatedly refuse to pay for their children to the attention of magistrates, who can then decide whether to send them to prison. We will of course consider any other implications of this judgement carefully and take the appropriate action.”
Like every autocrat in history, the British government takes as given its own wisdom and rectitude. The spokesperson never admits the possibility of error on CSA’s part despite the fact that the agency is now in the process of being torn down due to its astonishing incompetence and dictatorial mindset. But what’s more to the point and more predictable is that the spokesperson evinces no understanding that the rights of individuals are meant to curb the power of governments. Those rights exist, and must be respected by governments, irrespective of the guilt or innocence of the individual. That is, the innocent are not the only ones with rights. Had they been magically present to hear him, the signers of the Magna Carta would have understood the spokesperson completely, nodded and said something to the effect of how little things change over the centuries.
Marilyn Stowe is amazingly uneven in her grasp of issues relating to fathers. In one piece she totally misses the point about paternity fraud; in this one she’s pretty understanding of the fathers’ situation vis-a-vis the CSA.
The picture painted by Stephen Lawson is an undeniably unpleasant one. The casual reversal of that most fundamental of legal principles , the burden of proof, suggests that the CSA has occasionally behaved more like the secret police in a dictatorship than the arm of a parliamentary democracy. And clearly the Court of Appeal found the arguments convincing.
Nevertheless, as much as many would like it, we must resist the temptation to paint all non-resident fathers as victims. As any family lawyer will confirm, there is no shortage in this world of fathers who cannot or will not do the right thing by their children, nor of single mothers in need. Some form of government intervention in the child maintenance process is unavoidable.
All very true. And when that governmental intervention comes, it must do so burdened with the obligation to afford each and every father due process of law. That means, among other things, that it is up to the government to prove its case, not the father to disprove it. It’s 2012, almost 800 years since the signing of the Magna Carta. We’re still fighting the same fights.