The ingenuity of the child support avoider by John Bolch

Children|Family|Family Law|November 26th 2013

IOUOver the years I’ve encountered many of the ingenious ways in which parents try to avoid paying child support, but I have never before seen the approach attempted by one father in a recent Scottish Court of Session case.

In Child Maintenance and Enforcement Commission [‘CMEC’] v Wilson, a liability order was made against the said Mr Wilson in 2007, for payment of £211.48 of Child Support Maintenance arrears, together with expenses of £58.04.

Mr Wilson did not pay and CMEC took enforcement proceedings against him.

At a hearing before the sheriff Mr Wilson sought to avoid enforcement action being taken against him by maintaining that he had made an offer to pay CMEC in the form of a promissory note, which he claimed was ‘as good as cash’.

A promissory note is rather like an IOU, with the exception that it does not just acknowledge that the maker owes the debt, but also includes a specific promise by them to pay. Unfortunately, the report of this case does not include details of the promise that Mr Wilson made, but does say that he never in fact intended to keep to the promise (more of which in a moment).

Needless to say, the sheriff was not impressed. He said that the promissory note was not legal tender, and he therefore disqualified Mr Wilson from driving for a period of 18 months.

Mr Wilson, however, was not prepared to give up there and lodged an appeal.

The appeal was heard by the Sheriff Principal. Before him, Mr Wilson argued that a promissory note tendered by him and not rejected by CMEC discharged his liability under the liability order.

The Sheriff Principal was also unimpressed. He said that Mr Wilson was not entitled to dictate to CMEC whether not they should accept his note as a method of payment. Accordingly, the appeal was dismissed.

Mr Wilson lodged a further appeal.

This time the appeal was heard by the Court of Session. Mr Wilson made no further headway with his arguments. The Court of Session found that a creditor cannot be obliged to accept a promissory note, and there was no evidence here that CMEC had agreed to accept it.  CMEC were entitled to payment in legal tender.

Accordingly, this appeal was also dismissed.

As I mentioned earlier, Mr Wilson informed the sheriff that he never intended to honour the promise made in the promissory note. In fact, he seemed to be attempting to make a mockery of the whole system as he suggested that, in the event of him defaulting on the note, “it would be dealt with in the same way as a default by the Bank of England and his promissory note might become part of the national debt.”

Not very amusing perhaps. We also learn that Mr Wilson, like so many others, is a serial child support defaulter. He has, in fact, been banned from driving on three previous occasions for failure to pay in respect of other liability orders and (although this is not clear from the report) it appears that the total amount he owes is some £15,000.

Obviously, the repeated driving bans are not having the desired effect. Meanwhile, the only one who suffers is the child who should be benefiting from all those child support payments.

Just yesterday the Department for Work & Pensions announced that the reform of the child support system was proceeding, with all new cases now being dealt with by the new Child Maintenance Service. Whether they will have any more success dealing with the likes of Mr Wilson, we shall have to wait and see.

Photo by  Images_of_Money via Flickr under a Creative Commons licence

John Bolch

 

 

 

 

John Bolch is a family law commentator

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(13)

  1. Paul says:

    To suggest that a child suffers because his father refuses to pay £211.48 to his mother is over the top and a distortion. What information do you have that that the mother isn’t squandering the money on booze or fags? For all you know he might be doing the child a favour. Maybe the child is really suffering because he doesn’t see his dad enough. Any number of scenarios are possible. To pick just one to make a point against a father is misleading and wrong.

    The CSA is one reason why I won’t vote conservative because there’s no equally aggressive balancing law, formulaic in nature just like the CSA rules, that provides for separated fathers to spend substantial time with their children. One child may suffer a tiny wee bit here. On the other hand a father is making a stand against an iniquitous system of taxation and thus doing a power of good for many more children beside his own child.

  2. Andrew says:

    I have come across one of these types. He signed my schedule of costs (not in a family case) and claimed that constituted payment. Sometimes they sign “Joe Bloggs, no right of usufruct”. It’s a variation of the “freemen on the land” nonsense.

  3. Ethan says:

    When can we expect an article on the ingenuity of the parental alienator or the craftiness of the contact denier, I wonder? Not too soon, I expect. Family law struggles to even accept the notion that such female miscreants exist let alone make examples of them.

  4. JamesB says:

    I have every sympathy for those who fight the immoral system of child support regardless of conduct in this country.

    A broad brush approach of Taxing men for having sex is frankly ridiculous.

    Each claim should be dealt with on its merits before a Judge as it was prior to the Orwellian CSA.

    It is for this reason I will not be voting Conservative or Labour either until this is resolved. A shame as I thought the conservatives were on the edge of and made every sound that they would be fairer, and give non resident fathers and men in general a break. They have not been, that was spin.

    The politicians have disenfranchised me and my family with this nonsense. Now they look to the female electorate under current system. I pray for a change or PR or a politician with sense to stop this nonsense.

  5. Yvie says:

    I could never condone my son, if he failed to provide for his children, but as he does so, more than adequately, as well as paying his ex. wife, if he could dodge the CSA and keep his affairs entirely to himself, I would be delighted for him and would wish him the best of luck. I know for certain that he will always provide for his boys and put them first. When he spends directly on his children, at least he knows for certain where his money is going – unlike the money his pays to his ex.

  6. JamesB says:

    The csa is a man tax supporting an immoral society. I would be ok paying it if I had the say on how the money was spent like I would if we stayed together.

  7. Anonymous says:

    The ingenuity of those who spread sensationalist claptrap and who lack the intellectual means to scrape beneath the surface of things never ceases to amaze me.

    It might be more humane and more productive to stop slandering parents and try to understand why so many are trying to resist a form of institutionalized theft that is premised on robbing children of their right to family life.

  8. John says:

    Once again we see that a parent is being demonised and criminalised regarding their child/children. Not the governments child/children.

    The interference by government and their run for profit company, regarding maintenance, tells us all we need to know about government practices and their stakeholder supporters.

    On the balance of arguments, is an avoider any more of a criminal than an interferer?

  9. Timbo says:

    I do not agree with a lot of the above comments.If you have children you must take responsibility for them – they are not disposable commodities.
    P: The amount owed in total was some £15,000 not c£200
    J: If the father paid up why would the government have to ‘interfere?’
    JB: ‘Immoral system of child support’? It is immoral that some fathers will not support their children financially.
    Who is ‘taxing men for having sex?’ Heard of contraception?

  10. JamesB says:

    Should be based on need, ability to pay and conduct. Your line of every sperm is sacred reminds me of Monty Python frankly.

  11. JamesB says:

    It is not moral to expect fathers to pay to have their children stolen from them.

  12. Timbo says:

    The above article is about a parent avoiding paying child support – and goodness he is a persistent offender.

    You have introduced a new area to the debate – ‘It is not moral to expect fathers to pay to have their children stolen from them.’
    You sound upset by your situation. I don’t want to cause you further distress by arguing about your particular case – I wish you and your children well.

  13. JamesB says:

    Thanks for that. I wish you a good Xmas also.

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