Judicial ingenuity

Farley v (1) Child Support Agency (2) Secretary of State for Work and Pensions CA LSG 20 October

The applicant father’s appeal against a liability order made in the magistrates’ court in respect of child support maintenance under s33 of the Child Support Act 1991 by way of case stated to the High Court was dismissed by the single judge. When the father was granted leave to appeal, the Court of Appeal allowed the appeal and ordered the liability order to be set aside. The CSA and Secretary of State were granted leave to appeal to the House of Lords. It was then realised that the decision of the single High Court judge was final and therefore no appeal lay to the Court of Appeal from that decision. But, the Court of Appeal would have had jurisdiction if there had been an application for judicial review and if the single judge had given his decision not on an appeal by way of case stated, but on an application for judicial review. Accordingly, the court invited the father to undertake to apply for judicial review and proceeded to treat that application as having being made. Sitting as a court of first instance, the Court of Appeal granted permission to make the application, and then refused it. The father was then invited to make an application for permission to appeal from that decision of the Court of Appeal sitting as a court of first instance to the present court sitting as an appellate court. The permission was granted and the appeal allowed in the terms of the original decision of the Court of Appeal. In that way the father would have a declaration in his favour from the Court of Appeal overriding the decision of the single High Court judge. That would enable the Secretary of State to issue a fresh petition to the House of Lords, to seek leave to appeal to it.