Has the Burden of Proof Been Reversed in CMS Cases? (Article 6 & Magna Carta Explained)

 

Short Answer

In law, the burden of proof should remain with the party asserting a debt.

However, in the Child Maintenance Service (CMS) system, the structure of decision-making and enforcement can create situations where individuals feel they must challenge or disprove arrears that have already been asserted.

👉 The issue is not whether the legal principle has changed, but whether it is always applied effectively in practice.

The Magna Carta still has the force of law under the 1297 enactment here you see clause 29 which is now recognised in Article 6 ECHR and Article 6 of the Human Rights Act 1998

Magna Carta 1297 clause 29 is still on the statute books


The principle of fair process has deep roots in English law.

Magna Carta 1297, clause 29 provides:

“No Freeman shall be taken or imprisoned… nor will we deny or delay right or justice.”

This provision is often cited as an early expression of the principle that legal rights and obligations should be determined through a fair and lawful process.

👉 That principle continues in modern law, including Article 6 of the European Convention on Human Rights, which requires a fair and effective hearing.

This reflects a long-standing constitutional principle that justice must not only exist in theory, but must be capable of being exercised effectively in practice.



Immediate Point

If the Child Maintenance Service (CMS) says you owe arrears, it can often feel like the position is already decided.

👉 A key question arises:

who is required to prove the amount owed?

The Legal Principle

There is a long-established principle of law:

Ei incumbit probatio qui dicit, non qui negat
(the burden of proof lies on the one who asserts, not the one who denies)

👉 In simple terms:

  • if a debt is claimed
  • the person making that claim must prove it

This principle underpins fairness in civil proceedings.

How the CMS System Is Structured

Under the Child Support Act 1991:

  • the CMS calculates the amount said to be owed
  • disputes about that calculation must go through:
    • Mandatory Reconsideration
    • appeal to the tribunal

👉 At the enforcement stage:

  • the court is not allowed to question the calculation
  • it considers whether the debt is due and unpaid

Where the Concern Arises

This structure can create a practical difficulty.

👉 If:

  • arrears are asserted
  • the court cannot examine the calculation (s.33(4))
  • enforcement proceeds
  • and the individual must challenge the amount separately

👉 it can feel as though:

  • the debt is treated as established
  • and the individual must disprove it

What the Court of Appeal Considered

In Karoonian v CMEC; Gibbons v CMEC [2012] EWCA Civ 1379, the Court of Appeal examined enforcement proceedings in the context of committal (imprisonment).

The case raised important issues about:

  • procedural fairness
  • the way arrears were asserted
  • the ability of individuals to challenge the case against them

The Burden of Proof Issue

In that case, the Court of Appeal considered how the case had been presented, including correspondence and the approach taken by the enforcing authority.

👉 This raised a key concern:

whether, in practice, the individual was being placed in a position where they were expected to respond to or disprove the alleged arrears.

Why This Matters

This does not mean that the legal burden of proof has formally been reversed.

However:

👉 it raises a legitimate question about how the system operates in practice

Particularly where:

  • arrears are disputed
  • enforcement proceeds
  • and the court cannot examine the underlying calculation

Connection to Article 6 (Right to a Fair Hearing)

Article 6 of the European Convention on Human Rights requires:

  • a fair and public hearing
  • proper opportunity to challenge the case against you

👉 If the process operates in a way where:

  • liability is asserted
  • enforcement progresses
  • and meaningful challenge is difficult in practice

👉 it raises the question:

whether the process fully satisfies the practical requirements of a fair hearing.

The Link to Liability Orders

This issue does not arise only at the final stage.

👉 It develops through the process:

  1. Arrears are calculated and asserted
  2. Liability orders are granted (without examining the calculation)
  3. Enforcement escalates
  4. In some cases, this can lead to committal proceedings

👉 The concern is whether earlier stages provide sufficient scrutiny before serious consequences follow.

A Question of Practical Fairness

It is important to be clear:

  • the system provides formal routes to challenge arrears
  • the courts apply the law as it stands

However:

👉 the question is not whether safeguards exist
👉 but whether they operate effectively in practice

Conclusion

The principle remains clear:

Ei incumbit probatio qui dicit, non qui negat

But in the context of CMS enforcement:

👉 the issue is whether that principle is always reflected in how the process works in practice

This is not a settled conclusion.

👉 But it is a question that arises from the structure of the system, the operation of enforcement, and the concerns identified in case law.


Further Reading




Comments

Post a Comment

Popular posts from this blog

The £4 Billion Lie

Image
How the State and Gingerbread Framed Innocent Parents As Deadbeat Dads UK Parliament – Palace of Westminster, home of the Work and Pensions Select Committee and the Public Accounts Committee that examined Child Support Agency arrears. For more than thirty years, the British Government and its favoured charity partner, Gingerbread , have cast one group of citizens as villains: the Non  Resident Parent . Labelled “deadbeat dads,” they’ve been accused of failing their children. Behind that slogan lies a manufactured scandal — a fictitious debt worth billions, created by the Child Support Agency (CSA)  on the 1993 -2003 child support schemes and continues to be collected by the Child Maintenance Service (CMS). The Henshaw Report (2006): The Warning They Ignored In 2006, the Government commissioned Sir David Henshaw to review the failing Child Support Agency. His report, Recovering Child Support – Routes to Responsibility , was blunt: “The Agency has not delivered agai...
Read more

Gingerbread’s Misrepresentation of Child-Maintenance Arrears

Image
  Findings Summary:  Between 2016 and 2024, the charity Gingerbread (No. 230750) repeatedly asserted in media articles, parliamentary briefings, and reports that £3.8 – £4 billion in unpaid child-maintenance arrears was owed to single parents. This figure appeared in The Guardian , BBC News , The Mirror , The Sun , Raeside Chisholm Solicitors , iNews , and Early Day Motion 575 (19 October 2016) — all explicitly citing Gingerbread as the source. However, official findings from the National Audit Office (NAO), Work and Pensions Committee, and Public Accounts Committee (2009 – 2024) confirmed that the overwhelming majority of this debt was fictitious, inflated, or owed to the Secretary of State, not to parents with care. The House of Commons Library Briefing Paper CBP-7776 (2021) recorded that, of the £3.7 billion in legacy CSA arrears, only £0.1 – £0.6 billion was realistically recoverable. On 7 July 2020, the Charity Commission for England and Wales upheld a public comp...
Read more

Selective Scrutiny: Who Gets Heard on the Child Maintenance Service — And Who Is Shut Out?

Image
Baroness Sherlock Minister responsible for Child Maintenance policy There is a growing problem in the debate around the Child Maintenance Service (CMS), and it is not just about policy. It is about access, influence, and whose evidence is allowed to shape decisions . Direct Access — But Not for Everyone On its own website, Gingerbread confirms that it has already taken part in a roundtable meeting with Baroness Sherlock, where single parents were invited to speak directly to the Minister about their experiences. That matters. It shows that certain stakeholder groups are being given direct access to ministerial discussions , with the opportunity to shape both narrative and policy direction. At the same time, groups such as STOPSuicides UK (STOPS) — who are raising evidence of systemic harm, including suicide and elevated mortality linked to CMS processes — have been repeatedly refused equivalent engagement. The issue is not that Gingerbread is being heard. The issue is that others ar...
Read more