Child maintenance, the CSA and the quality of mercy

Family Law|January 21st 2008

Where did the justice go?

When I was a pupil at Leeds Girls’ High School, (how many years ago?!!!) each week we had to learn some Shakespeare by heart. The meaning of what we learned was never explained beforehand, and we had to work it out for ourselves. The following day we had to take turns to recite it from memory, with all the meaning we had attributed to it. This was quite difficult to do, but one speech fascinated me more than the others. I have never forgotten learning Portia’s role as the male lawyer in the Merchant of Venice, and her words about the “quality of mercy” in the law. This famous speech argues that there is room for moral obligations within the law’s confines.

I think Portia fashioned my own approach to the law, and fired up my enthusiasm for becoming a lawyer. I liked her clever arguments. I liked her understanding of justice because it is mine too.  “Justice” can often mean something completely different to two people caught up on opposing sides of the same case. Justice is about more than administration; it is about tempering the application of law with mercy, to bring about the right result. This is how the law is applied within the English legal system, in both the civil and criminal courts. It is a system within which I have been privileged to work, and I love it.

However, reading The Times about the new reforms to the Child Support Agency, I wondered for the umpteenth time when the principles of mercy and justice will come into play.

To date, they have been lacking from a system that is administrative, rather than judicial. I believe that if mercy and justice were applied on a judicial basis, and discretion was introduced to make the system more flexible, the CSA would flourish.

I was one of the first appointed Chairs of the Child Support Appeals Tribunal, hearing appeals against CSA assessments. I held judicial office – but quickly discovered that I had no judicial discretion. Even if a decision was plainly unfair to anyone with a modicum of common sense, I couldn’t find it to be legally unfair.  In effect, all I was empowered to do was correct any errors in the computation. I then had to complete a complex decision statement explaining why I had upheld the assessment, or directed it to be “re-determined” (sent back again for yet further complicated computer calculations).

This was not my understanding of the administration of justice. I could not, in all conscience, be part of a purely administrative system of law. So, I resigned.

I watched from the sidelines as – predictably – the system tumbled into ruins. Millions of devastated people were left behind in its wake. I watched again as a revised system went exactly the same way, costing all us taxpayers billions into the bargain.

The relatively untrained and inexperienced CSA staff, who had to try and make sense of this mess, had my sympathy. I knew it was an impossible task for anybody other than trained family lawyers and family judges, because child maintenance is part of their everyday workload. I watched, horrified, as crooks who played the system and bamboozled CSA employees got away scot free. Meanwhile naïve and trusting parents and children, desperate for money, were ignored. Where did the justice go?

Now the  CSA is to be re-branded and the ridiculously titled “Child Maintenance and Enforcement Commission” (C-MEC) will be the third attempt to get it right. Sorry to say, I haven’t the slightest confidence that it will.

I’m not the only one. Patrick Parkinson, who designed the Australian model of the CSA, has said we are having a “nervous breakdown” with this third system and has pointed out further pitfalls.

So I ask again: why not return the CSA’s duties to the professionals who do every other part of the job in family law? Give them a system that is cost-friendly and incorporates discretion.  Let the real professionals get stuck into the problem.

If justice could be applied as it should be – to rein in those who hope to “get away with it” and alleviate the hardships of those who are suffering – I am certain that strong, positive results could be achieved.

Note: This blog receives lots of queries related to the Child Support Agency (CSA). Unfortunately, because of the complex and labyrinthine nature of CSA processes and rules, such questions often call for lengthy and long-winded answers. For this reason, it is difficult to answer such queries on an individual basis.

If you are seeking advice about a situation that involves the CSA, I recommend that you contact the National Association for Child Support Action: a hardworking organisation that can provide ongoing assistance, advice and support.

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(2)

  1. In the news: the CSA, CMEC and Madonna says:

    […] It is set to take over from the much-loathed Child Support Agency. However, as I have noted in previous posts about the CSA, there are already question marks over this replacement organisation’s fitness for […]

  2. Fathers, birth certificates and the latest “big idea” | Marilyn Stowe Family Law and Divorce Blog says:

    […] as a family lawyer, I’m less than impressed. As I’ve noted previously, the Child Support Agency is unfit for purpose and has left millions of devastated people in its […]

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