Fairness for the children of separated parents rests in ensuring they are maintained by both parents. In many cases parents co-operate over this. In others child maintenance is not paid. Children suffer. The legal system in the United Kingdom has failed many of those children. It has not managed to produce a system which defines maintenance quickly and which ensures that payments to and for children are enforced promptly and efficiently. Pic from Flickr under creative comms licence kevin h
Are changes to the present system afoot? Press publicity over the last couple of days speaks of changes to child support, including HERE on the www.thejusticegap.com. It is said that there is to be encouragement to parents to reach agreement on payment – and this is accompanied by threats of charges if parents fail to agree and turn to the Child Maintenance Service (a new name for an old gang: the Child Support Agency) for help. The article by Stephen Lawson is entitled ‘Child support: how does it work?’
The honest answer to that question is: it doesn’t ‘work’ much of the time. The article is about how one limited aspect of child support is intended to work, namely calculation of the amount to be paid; and – if the payer parent is an employed person, and pays regularly, as required – that is about the only aspect of the scheme which does ‘work’. And, of course, defining how much is to be paid is the easy bit of any scheme: the trick is to make sure that money is paid and that children are provided for.
Despite the breathlessness of the press announcements, the underlying Child Support Act 1991 will remain.
The fact that a modern society permits the existence of such an impenetrable and badly drafted set of legislation is an affront to justice in itself. If a person cannot understand the law which affects him or her – and I challenge most people, whatever their level of intelligence, to understand most parts of child support law – then that in itself creates injustice.
The original idea for the scheme was to take child maintenance away from the family courts. Judges had failed to come up with a consistent figure for periodical payments; they let too many men off as Mrs Thatcher saw it; there was no index-linking; and private law enforcement procedures were too inefficient.
Too many children became the liability of the tax payer. Thus was bred a scheme which remains, linked to the then Department of Social Security. Dog-in-a-manger like, it prevents any application to the court where parents and child all live in England and Wales. The same applies to enforcement, a massive failure of the Child Support Agency.
Requirements of a child maintenance scheme
Any child maintenance scheme needs three things: a means of deciding the amount to be paid (with index-linking built in to the decision); a means of resolving appeals from such decisions (if stage 1 is to be dealt with by administrative decision); and, thirdly, an efficient scheme for enforcement. An aim of the 1991 Act was to fix a figure for payment (stage 1): that has been done. The two schemes effective since 2003 have at last provided a sensible yardstick, and a means for payments to be linked to the index of the payer’s income.
The down-side for this is that to fix the amount of child support requires a 800 page source book – nothing can be left to chance for the civil servant decision-maker; and only a narrow priesthood of specialist lawyers (mostly tribunal judges) can actually understand most of it. The comparable source book for family proceedings devotes some 10 pages to fixing maintenance in the family courts: the judge does the rest in a fraction of the time child support takes to work out.
Enforcement and appeals
Enforcement – the third, and the most important, element of a successful scheme – under the 1991 Act is absurdly cumbersome (inexplicably, five different courts are involved). How much will this change with the brand new CMS? The elephantine enforcement statutory provisions remain; but an elephant to chase an evasive tiger (which represents the errant payer parent) is the wrong means. Under any new scheme will recipient parents be permitted to take their own steps, privately, if they chose? Under the present law they cannot: they must await the meanderings of the CSA elephant.
Child support appeals are consigned to the administrative tribunal appeals system (the second essential element in a scheme). This is because of the historic links of child support to DWP. Delays in the tribunals are endemic. They have no thought of the effects on children and their needs as these delays extend. A simple discretionary decision by a family court judge will require a minimum of documentation and a fraction of the time to be disposed of. Fairness would be no less, by most people’s standards. Justice for children – subject to effective enforcement – would be immeasurably greater.
Mediated child support arrangements
What of the fresh conciliation breeze which is said to be blowing miraculously through all these relationship breakdowns? Agreements are expected to be breaking out overnight. Yes of course agreement is better. Promoting agreement has been the statutory duty of the CSA since 2008 (see Child Maintenance and Other Payments Act 2008 s 2(2)(a): duty of decision-makers to promote voluntary maintenance agreements). If they have failed to do it for the past six years, what will be different now?
Step back, then, from the hype on agreements: it is worth recalling that one reason parents separate is that they cannot agree about things. The CSA has a long history of turning niggles between parents into near outright war.
How easy will it be to turn the decision-maker who is used to fobbing off parents whose arrears have passed the £10,000 mark and still are increasing, into a mediator who will smooth the path to settlement? And more fundamentally, how will child support mediation dove-tail with wider issues which need to be mediated on relationship breakdown?
My belief is that till the scheme is massively simplified, especially on enforcement, and that more aspects of it returned to the control of private individuals, then the recent proposals – so far as they are defined at this stage – will only make things slightly worse for most children; and will do nothing to clear the massive – but still enforceable – arrears bill. Meanwhile, the statutory scheme under the 1991 Act will still go on, based on the same Kafkaesque statutory provisions. The 1991 Act is so much amended that it is twice as long as when it started and is supported by a forest of sub-statutory material. The scheme is still run by Ian Duncan-Smith and his civil servants. A slug by any other name is still a slug.
Author: David Burrows
David is a solicitor advocate from Bristol & author of Practice of Family Law: evidence and procedure (Jordans, 2012)