Family Partner and Head of Department.
I acted for a wife who had been a litigant in person until her case reached the Court of Appeal. She had been fighting for child maintenance from her ex-husband for over 18 years. He claimed that his income earned from poker playing should be exempt from an assessment by the CSA because money earned by gambling is tax-exempt for self-assessment purposes. The same definition is used when calculating assessments for child support.
In fact, the husband was consistently successful at poker playing and was able to support a comfortable life-style from his winnings. He did not feel obliged to support his children.
By the time this matter reached the Court of Appeal, the children in question were young adults, but the wife felt so strongly that the existing rules were unfair that she felt she had no choice but to continue. In fact, the lower Courts had agreed with her, and that is what prompted the husband to appeal.
The law on this issue had not been challenged since 1925. Were the wife to succeed, this would have enormous ramifications for the calculation of self-employed income; not just for the purposes of child support, but also for tax and national insurance contributions. Representatives of HM Revenue & Customs, and the Child Support Agency both attended Court to hear the arguments. The Department for Work & Pensions was a party to the case.
We attended the Royal Courts of Justice, and the matter was heard before 3 appeal court Judges. It was fascinating to hear the legal and policy arguments presented by each of the barristers, and the grilling that each received by the Judges in unravelling every facet to the case. The splendour of the surroundings added to the sense of occasion. It is really interesting seeing Court proceedings from a client’s point of view. Some of our Court practices, for example, the Court Ushers tucking in the Judges to their seats, can be very perplexing for a client!
On the facts of this particular case the Court found that the husband did not have a sufficient level of organisation in his poker playing for it to amount to a profession and therefore his gambling earnings were not from gainful employment. However the Court did find that in some circumstances it may be possible. In a sense, this was a victory for the wife because the law was clarified, and in future, arguments may be presented by others to establish a sufficient level of organisation.
I agreed to represent the client on a pro bono basis. The husband was similarly represented. In such cases the winning side can make an application to the Court for ‘pro bono costs’. If granted, this means the winner’s costs are paid to The Access to Justice Foundation, a charity that distributes the money to organisations offering free legal help to those in need.
My client was a little disappointed that the Court was not satisfied that the husband had been sufficiently organised in his poker playing in her case, and she contemplated appealing this decision to the Supreme Court. This would have exposed her to the risk that, if she lost, she would have to pay the other 2 parties’ costs. Ultimately, it would have been too big a risk to bear if she lost.
Our case has clarified the law. It is possible that others, in the future, may be able to claim maintenance for their children, from their partner’s earnings as a professional gambler, if that person is sufficiently organised in their dealings.