Earlier today I appeared on ITV’s This Morning, sitting alongside Holly Willoughby and Philip Schofield answering viewers’ questions about child maintenance. The volume of calls, emails and tweets was high, and many of the questions about child maintenance followed the same theme. There was a lot of confusion over the process that governs the obtaining of child support, and many problems with non-payment or under-payment of maintenance, whether spousal support or for children.
Unfortunately that is hardly surprising, given the CSA’s history. This began in the early 1990s, when the government of the day decided to remove child support from the courts. The new process was going to be computerised, straightforward and much cheaper.
Until then, child maintenance could be obtained through the courts. The fastest and cheapest way of obtaining such an order was to hotfoot it to the local magistrates’ court accompanied by a solicitor, who was usually acting on legal aid. The magistrates – a legally unqualified bench who nevertheless had plenty of experience of the cost of living and the tricks people played to appear far less wealthy than they were – would make an order. Usually it would take no longer than one or two hearings to settle the whole case.
Back then, arrears could be enforced by the same court’s bailiffs or the various other ways that still exist, such as an order for payment to be made directly out of income or a charging order over property and, in some extreme cases, imprisonment. I followed this procedure many years ago with one household name who paid by return, not daring to take his chances with the judge. These enforcement methods, along with others, still exist today.
What no longer exists is the court route solely for basic child support. Magistrates’ talents are now probably underused, with regards to family work. That said, I do suspect that when the Family Court is finally consolidated following David Norgrove’s report and Mr Justice Ryder’s implementation work, the magistrates will be dealing with many of the unrepresented litigants involving straightforward work that is currently clogging up the higher courts.
The history of the CSA and its 8,000 employees, failed formulae and almost £4 billion of uncollected child support has been well documented over the years. It is now estimated that a child maintenance case can cost between £20,000 and £40,000 to resolve. Multiply those figures by the number of “difficult” cases dealt with by the CSA, and is it any wonder the process has stultified?
And is it any wonder that many of This Morning’s callers expressed their frustration and anxiety because they had either been unable to secure the correct level of child maintenance, or having got it, had seen neither hide nor hair of it?
Even today, almost twenty years after the CSA was founded, many people are clearly confused by the amount of child maintenance to which their household is entitled. When they believe that the amount awarded is incorrect, they are confused about best to challenge the decision. Of course, if the non-resident parents fails to pay the sum awarded, these problems are compounded.
If any of this applies to you:
As I mentioned on the programme, there are various courses of action that you can take.
The Child Maintenance and Enforcement Commission website has two functions. It will assist you to reach an agreement and… it will administer the CSA. Certainly, you have nothing to lose if you try the parenting agreement recommended on the site, calculating your own entitlement in agreement with your former partner.
You will get plenty of encouragement from CMEC to reach such an amicable solution. Of course, such a solution will relieve the CSA of any further liability, but it will also mean that you must have absolute confidence in your former partner’s honesty and integrity. You must be confident that he or she is indeed earning what you are being told, because there is no court-ordered process to ensure verification, and only the CSA has its own special powers to check in ways that citizens do not.
And your agreement will have no teeth. If your former partner decides to stop paying, you won’t be able to enforce the agreement and in many cases, you will have to start all over again with the CSA because you can’t obtain a court order as you would have done 20 years ago.
Crazy? I think so. Family financial settlements are dealt with by the court, so why exclude basic child support? But as I’m an Officer of the Court by virtue of being a solicitor, I do think access to justice should be through the court. I suppose my view is predictable!
You could also visit the Gingerbread website, which I mentioned on the programme. Gingerbread has already contributed a great post on this blog, on the topic of child maintenance. Do pay the site a visit: it gives excellent advice about dealing with the CSA and in particular, about what you should do if you have a low order yet believe your former partner has capital in excess of £65,000 (excluding their home), or has undisclosed income, or has diverted income, or is simply living above his or her “means”.
So what other questions were asked on the programme?
This Morning viewers also asked questions about the non-payment of spousal support, which is also commonly called maintenance. That is income payable by one spouse to the other on divorce, to meet income needs. One caller wished to vary the order. Again, I suggested using the magistrates’ court as a quicker, cheaper and less complex option. This was because in her particular case there was no complex law involved, and it was simply a decision that needed to be made on the facts.
Another caller, who I answered privately after the programme because we ran out of time on-air, queried what happens if the person making payments goes into prison. The answer is straightforward: the payments stop.
Finally, one question would have been perfect for a family law practice and procedure exam. Can arrears under a maintenance order be enforced more than ten years later?
The answer: consider section 32 of the Matrimonial Causes Act 1973, which requires permission of the court to enforce any arrears more than 12 months old, alongside section 24 of the Limitation Act 1980, which bars fresh actions on a judgment over 6 years old. Read Rayden and Jackson 18th Edition, together with the recent case of O’Farrell v O’Farrell.
Personally, I believe that even if enforcement proceedings (excluding bankruptcy) aren’t statute barred, section 32 is, on the face of it, too much of a hurdle. Would you have imagined that such complexity would have arisen on a morning television show? I didn’t – but still, I dealt with it!
On another note…
It’s good to be back in London. At the ITV studios I bumped into Sir John Major, Freddie Flintoff, Lionel Blair and Sir David Attenborough in the space of an hour!
What’s more, the city is looking fab. I have never seen so many brand new taxi cabs on the streets or London looking so pristine. I wonder….is there a celebration or two scheduled over the next few days and weeks?