A NEW DAWN FOR THE CHILD SUPPORT AGREEMENT?

 

If no agreement: pay for your child support

There has been a variety of press publicity over the last couple of days about new child support plans – first that couples must agree amounts of payments of pay fees for continued use of a child support ‘service’. The Child Support Agency, it is said, is to be abolished; but the statutory scheme under Child Support Act 1991, I assume, will go on. The scheme is still based on that same Kafkaesque convolution of a five times amended statute (the 1991 Act is twice as long as when it started) supported by a forest of sub-statutory material; involving seven different court systems (one added with the family court being now in the armoury) and five sets of different court rules.

The scheme is still run by the same Department of Work and Pensions. Just as a rose by any other name will smell as sweet, so too a slug is a slug whatever you call it. And it should be noted: the very 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/her, then that in itself creates injustice.

History of the scheme

The scheme took calculation of child maintenance away from the family courts in April 1993 because the judges failed to come up with a consistent figure for periodical payments (liable relatives formula, foster parent rates, DSS rates), they let too many men off (thought Mrs Thatcher); there was no index-linking; and private law enforcement procedures were too inefficient. The result was that too many children became the liability of the tax payer; and so was bred a scheme which was, otherwise inexplicably, linked to the then Department of Social Security. Had someone told Mrs Thatcher of Social Security Administration Act 1992 s 106 (liable relative payments: still on the statute book) which would have done the job she wanted, the whole sorry Child Support Act 1991 debacle could have been avoided.

So what was needed: 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; and an efficient scheme for enforcement. An aim of the 1991 Act was to fix a figure for payment: that has been done very effectively (now: the initial formula was needlessly complex). 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.

Beyond that there are still many payers who can adjust their income so it is less than their children might expect; and there the absurdity of it all begins. The whole purpose of an administrative scheme – at least since Dr Dicey in the late nineteenth century – is to reduce to a minimum the extent to which the decision-maker is able to exercise discretion; whereas one of the main tenets of most areas of family law is to entrust wide areas of discretion to judges. The consequence, for child support, is a 800 page source book, which only a narrow priesthood of specialist lawyers (mostly tribunal judges) can actually begin to understand. That source book, with other guidance, is required to define the child support scheme. In a comparable source book for child periodical payments some 10 pages are required: the judge does the rest by determining the amounts to be paid and in a fraction of the time child support takes to work out.

Enforcement and appeals

Enforcement – the second element of a successful child support scheme – as operated under the 1991 Act is absurdly cumbersome (five courts are involved, inexplicably). How much will this change with the brand new CMS? The elephantine enforcement statutory provisions remain; but an elephant to chase an evasive tiger of an avoiding payer parent is not a good idea. 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 tribunals appeals system 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. Child support appeals just have to take their turn. A simple discretionary decision might 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.

Child support: the future

What to do? The good to come out of the scheme is the concept of a yardstick figure with which most parents agree; and acceptance that payment be linked to a payer’s pay. If that is the starting point which is taken by an administrator, then appeal could be direct to a district judge (the 800 page source book would by now have been torn up), the appeal would be disposed of by the district judge adjusting the formula figure according to what he heard on the appeal – listed and disposed of promptly; and then failure to pay would be met by well-targeted enforcement. Already Family Procedure Rules 2010 have introduced the means of payment enquiry (tucked away modestly in r 33.3(2)(b)) which would be an excellent starting point: it could even be rolled up as part of the appeal process in some cases.

Children’s needs in many cases are not being met by the present scheme. It should have been predictable. Only a foolish – or stubborn, or both – government persists with the present labyrinthine scheme. If the scheme announced yesterday runs under the existing statute with the same old CSA decision-makers, but now called by a different name; well that slug will still be a slug and children will remain unprovided for. The malign difference will be that , if what is proposed is true (I must hold my fire on this because I have yet to see the statutory basis for what is being suggested), then couples will have to pay for the disasters which so far then have had to watch unfold over their cases but without payment.

Mediated child support arrangements

And what of the fresh conciliation breeze which is said to be blowing miraculously through all these relationship breakdowns? 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? A statute and a set of regulations defining what is to be paid to the last penny, and minds which are brought up in such a scheme, are not easily associated with the concept of mediation and agreements (as the six years – since s 2(2)(a) came in – has shown).

Step back, then, from all 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 slug at least into an elegant smooth-shelled snail? 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 work 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 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.

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