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A brave new world?
The Child Maintenance and Other Payments Bill will increase child support troubles, predicts David Burrows
© Reed Elsevier (UK) Ltd 2007
The Child Maintenance and Other Payments Bill hit the bookstands earlier this month - the "other payments" are in respect of mesothelioma, which bears no immediate relationship to child support. The Bill proposes the Child Maintenance and Enforcement Commission (C-MEC) to do the job which the Child Support Agency (CSA) failed to do, and sets out extensive intended amendments to Child Support Act 1991 (CSA 1991). The already derided CSA 1991, with the separate proposed legislation as well, will be doubled in length. And doubtless the excessively cumbersome regulations will be proportionately extended to cover the new provisions in the Bill. Previous efforts at this legislation have gone through Parliament more or less unopposed; and so too, I suspect, will this. Not at all a propitious start ...
A Semantic Exercise
The reforming proposals, apart from enforcement, are light. First comes a semantic change with administrative undertones: out goes the CSA - it never had a statutory existence: everything in CSA 1991 was done in the name of the Secretary of State for Work and Pensions - in comes C-MEC. How many of the CSA staff will transfer to C-MEC? Most, we can be sure; and many more, no doubt - mostly bailiffs, ex-policemen and security staff - will be added. This further brave new world of child support - the fourth in 15 years - will require yet more civil servants to run it; and, I fear, they will get it even more wrong.
Benefit Claimants
Second, the compulsion on benefit claimants to authorise the secretary of state to collect child support maintenance goes (CSA 1991, ss 6 and 46). The logic of making this scheme a Department for Work and Pensions (DWP) responsibility therefore goes; though this proposition has probably been overlooked. The original scheme gained most of its impetus from Margaret Thatcher's discovery that the fathers of children whose mothers were receiving income support were getting away without paying maintenance. The taxpayer paid instead. So a scheme was set up which has cost the taxpayer far more than the modest sums paid for children whose fathers paid nothing, or very little; and run by DWP and its predecessors.
Logically, the scheme should be with other child maintenance issues in the new Ministry of Justice (MoJ): child support proceedings are, after all, family proceedings (Supreme Court Act 1981, Sch 1, para 3(h)). And perhaps the civil servants in the MoJ would see the absurdity of the variety of court schemes involved with child support.
Calculation
Of the other main proposed amendments, the third is to the basis of calculation of child support maintenance: instead of 15%, 20% and 25% of net earned income for one, two and three or more children, it is proposed that calculation be based on gross income: 12%, 16% and 19% (Sch 4, para 3) - said to be partly as a result of the experiences of Robert Smith in Smith v Secretary of State for Work and Pensions [2006] UKHL 35, [2006] 3 All ER 907. Otherwise most of the principles for calculation are much the same as before.
Enforcement
Next comes the main thrust of the Bill: enforcement. To the existing 13 sections on enforcement, 29 more are threaded - rudely thrust might be more appropriate a description of the amendment process - into CSA 1991: clauses 32A-32K will be added. Clauses 39B to 39S come later; and there are copious amendments to existing sections. The present powers remain. New provisions include:
- A liability order alongside all sorts of variants on the deduction from earnings order.
- A lump sum deduction order - which is a third party debt order imposed by administrative fiat.
- A child support form of writ ne exeat regno emerges - taking away someone's passport: why for child support but not for other debt?
- A curfew.
- Search orders.
All the paraphernalia of the new police world in which we live under new Labour is there to paliate the politicians who have failed so far to come up with a satisfactory scheme.
Were there any real likelihood of this ensuring more payments it might be tolerable to see the criminal jurisdiction - excluded for civil proceedings since the late 19th century - brought into family law; but I doubt there will be any higher a rate of clearance of arrears than under the existing scheme. Unless C-MEC gets on top of payments from the first day, the rate of arrears will alter hardly at all.
What The Bill Ignores
The present court and tribunal system underpinning child support increases dramatically the cost of collection; but no one knows what this cost is. Nearly £1 is spent to collect each £1 of child support maintenance - the equivalent figure for tax is around 4p to collect 1 pound. This figure does not include - because the data is not available - the cost of the court processes involved with child support. If this cost were added, I suspect the costs of collection would rise to nearer twice the amount collected. The tribunal system and other court processes are a real drain on parent's resources. Appeals can take months, sometimes years, to dispose of; and in the meantime enforcement is frozen.
There are seven separate court and appellate systems involved with child support. The Bill does not add to this - it cannot, for child support draws in all civil jurisdictions as well as the appeal tribunals and the child support commissioners - but it adds to the work envisaged for the tribunals and the magistrates. More aspects of the system, especially as a result of the provisions for the burgeoning enforcement system, require arrangements for appeals. It is proposed that some go to the magistrates, some to the appeal tribunals. Which are the other four court systems involved: county courts, Administrative Court (judicial review), Court of Appeal and House of Lords?
Alec Farley (see Farley v Secretary of State for Work and Pensions [2006] UKHL 31, [2006] 3 All ER 935) has tasted six of the seven - and he is still involved with three (appeal tribunal, county court and High Court) nearly five years after 10 years of assessments landed on his doormat in November 2002 telling him he had around £32,000 to pay. Hitherto, he had paid periodical payments under a maintenance agreement. And Smith (Smith v Secretary of State for Work and Pensions) has been involved with six as well. Smith has so far avoided the county courts, and Farley the commissioners. Farley is now on his third trip to the Administrative Court: there seems no other way to sort out his particular problem under CSA 1991.
The Bill evinces the continuing ministerial paranoia about the county courts: horrible, because lawyers practise in them. Well, lawyers practise wherever the subject needs protection and assistance; and the present scheme operating outside the county and other civil courts cries out for critical lawyers to help the unfortunates caught up in them. There is a long-standing system of enforcement for all other forms of debt - including all non-child support child and spousal maintenance - in existence. Little would have been needed to graft most of these new enforcement procedures onto the existing county court scheme - part of it remains there anyway: see s 36 enforcement by charging order and "garnishee".
Will The New Scheme Work?
I had thought the new scheme might cut down my work from child support. However, I think it will increase it considerably. As the Bill stands there will be many more areas for exercise of discretion by C-MEC and the decision-making process is likely to be under frequent challenge: circumstances for value judgment by civil servants are rife.
The enforcement provisions have all the flavour of a new form of family lynch law (almost): a few token purges will enable the politicians' appetite for an occasional blooding to be satisfied. We are already told that the CSA now plans to "name and shame". If it could get it all a quarter right in the first place I'd be less uneasy. There are many challenges to the amount of arrears already proceeding by judicial review - the only way to challenge the amount of arrears at present. I even have two clients who have been told they are fathers of children whose mothers they have genuinely not even heard of. The CSA admits the error; but in one case continues the dispute concerning the fictional paternity.
And will it work any better? The new enforcement schemes are not easy for a trained lawyer immediately to follow; and they are extensive. Often the CSA gets the scheme badly wrong. I explained to an accountant only yesterday that the regulations say the opposite on a point to what he said was on the CSA website. When the last scheme came in, in 2003, I spent an afternoon lecturing with two CSA in-house trainers. At the end of the lecture they came up to me, "that was interesting what you said about... " I said it was the law. I looked at the regulations they were working from. A new scheme was coming in, in a few days; and they were still being required to teach from the old regulations. Really.
Writing Off Debt; But No Claim For The Parent With Care
- The Bill, cl 29, gives the secretary of state power to make regulations to write off child support debt, euphemistically called "a set off" - which normally implies a quid pro quo, for which there is none in evidence in the Bill.
- The current child support debt mountain - incalculable, but probably around £3m - can be cleared; and future arrears can also be "managed" - another euphemism in the Bill refers to this set off as "debt management".
- The one person who truly has an interest in all this - the resident parent - still will have no direct part in the enforcement process.
- Along with the children, one might have thought that the carer parent would be first in line to be able to sue for and to enforce, by any means available, arrears of child support maintenance. But no.
- Mary Kehoe's dismissal by the House of Lords would be the same now as it was then (see R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48, [2005] 4 All ER 905). She has, and will continue to have, little recourse - other than judicial review - for compelling a prevaricating government department to enforce arrears.
- It is the DWP only, says the House of Lords, which can enforce child support arrears. The cruel illogic of that position remains with this Bill.
I can only hope the new squads of enforcement agents are carefully trained in what really is the law. We hear of some borderline enforcement techniques. Money may be owed - under the Matrimonial Causes Act 1973 periodical payments are not enforceable after a year - so let us hope they can show that any damage they do to the family balances the financial benefit they achieve.
A Messy System
And in the meantime, since it is the state's responsibility only to recover this maintenance, perhaps the state should pay the parents of children direct the amounts due as child support. How much would that cost, and what would be the benefits in terms of alleviating child poverty among one of the most vulnerable sectors of society: the children of broken relationships?
For all forms of financial provision, other forms of relief - children issues, divorce and domestic violence - and enforcement one court and the same set of judges are involved. Mostly the judges are district judges with extensive experience of dealing with family breakdown. Child support has four (at least) courts of first instance to deal with one relatively simple family issue: child maintenance. The rules relating to the latter already fill a 1,000 page source book; whereas the equivalent for the county court is less than 20 pages - and much of that refers also to capital provision. Kafka out of Alice in Wonderland: the conclusion is difficult to avoid.
Article published by LexisNexis.