Child support: the more things change….

Children|Divorce|January 28th 2014

In this special guest blog, solicitor advocate David Burrows explains his strong views on the English child support system.

You’ve probably heard the French epigram ‘plus ça change, plus c’est la même chose’. It means, of course, ‘the more things change, the more they stay the same’. It’s a wise saying and one that certainly applies to the often contentious issue of child support.

For example, consider the question of how much should you be paying to support your child. Ask this of much of the available literature and, as important a question as it is, for both the paying parent and the one who does most of the feedings, you will be lucky to find an answer.

The Child Support Agency (CSA) have rebranded themselves: a modern phenomenon, beloved of food retailers and government departments. You change the form – colour of note-paper, name of organisation, etc – but not the substance of what you are ‘branding’. (‘Branding’ is what farmers do to animals, but perhaps that metaphor need not be pursued!) All the same people stay; and the underlying statute law and incomprehensible regulations remain as ever. The DWP has done it four times now; but the same Child Support Agency staff, and the same underlying Kafkaesque law stay. Don’t let the Child Maintenance Options’s soothing pale-blue leaflet fool you. Like the Child Support Agency and CMEC (called CSA on most of its notepaper), Child Maintenance Options (CMO) is a service provided by the Child Maintenance Group (CMG), which is part of the DWP. The CSA remains for the Mark 2 scheme (March 2003 till December 2013), whilst for recent applications the Child Maintenance Service (‘CMS’) has been added.

If you look at Child Support Act 1991 (CSA 1991) you’ll find none of this. The Secretary of State (Iain Duncan Smith MP) is responsible for the scheme. And if you need to take judicial review proceedings, for example, over child support, it is the Secretary of State you will take them against. And that could happen –judicial review, believe it or not, is the only way to force the CSA and CMG etc, etc, to work out how much you owe if, as often happens, they lose count. There is no other review or appeal mechanism under CSA 1991 available to parents which enables them to challenge arrears claimed by CSA or CMG.

You will not be told this by the fluffy CMO leaflet, Information for parents living apart from their child. Nor will you discover in this 60 page booklet how much you might have to pay, which I should have thought would be a good starting point for discussions with you ex about what you do pay. Nor does it tell you by what means in law CMO can enforce payments due under your agreement (powers which the CMO leaflet says it has). Sensibly it is encouraging people to reach agreement; but CSA should have been doing this since at least 2008 (see the Child Maintenance and Other Payments Act 2008).

By the way, if you look up CSA 1991 on the Government’s legal website, you will see that the original version has been radically changed at least five times since 1991; so what you find there is not at all helpful. Here in 2014 the Act is twice as long as it once was, with literally hundreds of amendments and deletions[DRFB1] ; and backed with a dizzying array of regulations and non-statutory guidance.

The booklet, Information for parents living apart from their child (at page 17) says: “Since 2008 there are no laws that say how parents should arrange child maintenance. This means that all parents, including those receiving benefits, can set up a family-based child maintenance arrangement if they both agree to it. This is an arrangement between themselves that doesn’t involve anyone else…”

Well, yes, that’s the situation. It said so in the Child Maintenance and Other Payments Act 2008; but so often carer parents were put under pressure to use the Child Maintenance and Enforcement Commission (as it was then).

What is billed as the arrangements form itself runs to 20 pages. Most lawyers could set out a child periodical payments agreement on a side of A4. And neither booklet – so far as I can see – recommends (as would most lawyers) automatic index-linking (so the payments change with inflation and the cost of living), or incorporating your agreement into a court order. Nor, obviously, do the booklets warn you of the problems that arise if you are not married; though a sensible lawyer could explain how that would be dealt with.

This feels like a Secretary of State cover-up. Concerned at the bad name of the CSA (which is still very much with us), the DWP are trying to shuffle a velvet glove over their malign and inefficient child support system. How many people will be taken in? Reach agreement: yes please; but do it with your eyes open as to the relevant law and the underlying figures.

So what could be done? First let’s remind ourselves of the problem: defining a figure to be paid for children. County court district judges have actually been doing this sort of thing for years. There is no real need for a cumbersome state apparatus– a fact which partly at least now seems to have been accepted by the DWP: after 20 years they are encouraging people to reach agreement between themselves. So a district judge could establish the amounts to be paid and – provided he or she explains any departure from the starting point figures – that would be that. Enforcement could be tricky; but that is a topic for another day.

Photo by Seema Krishnakumar via Flickr under a Creative Commons licence

David is a solicitor advocate (higher courts, civil) who specialises in family law. He is a founder contributor to Family Court Practice (Jordans, the ‘Red Book’), and chaired SFLA (Resolution) National Committee in 2003. He writes extensively in for various publications, including Family Law and New Law Journal.

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  1. Luke says:

    Interesting article – thanks David.

  2. JamesB says:

    How much child maintenance? How long is a piece of string? Perhaps we need regulations on that also? Please no more.

  3. JamesB says:

    I agree with this article, that Judges rather than the csa should do this. Better still, scrap the idea.

    People should realise by now that the term non resident parent is a contradict ion in terms and therefore taxing them child support is unfair. Its ultimately like taxing people more for being tall or blond or red haired or something, and makes no sense and brings the government and the courts further into disrepute.

  4. Yvie says:

    The CSA are now encouraging parents to make an agreement between themselves regarding child maintenance. However, the same rules and regulations are still in place, with the CSA (or government), calculating the amounts which one parent has to pay the other, irrespective of ability to pay.

    The same incentive still remains which ensures more money is ‘owed’ to the receiving parent if she manages to block or reduce contact with the father.

    It is a punitive system with no mechanism for negotiation which seeks to extract as much as money possible from the separated father, irrespective of how much he is already doing for his children. Government should leave families to sort maintenance arrangements out for themselves, using the Courts in the cases of parents who refuse make a contribution to the maintenance of their children.

  5. Anonymous says:

    I often think that there are people working in the CSA who are trying their utmost to sabotage this agency and bring it into as much serious disrepute as possible.

    How else could you explain the high levels of unfair treatment, the blatant sexual discrimination, the ongoing violations of human rights, the ceaseless intentional misdemeanors, blunders and lies committed by their personnel?

    Things would be far better, fairer and more efficient if the taxpayer didn’t have to fund this national disgrace.

    The brilliantly stupid idea of now shifting the financial burden of this disgraceful organization onto the children of separated parents is only the latest blunder. Did they really think that more parents would come to private agreements if they did this? As moronic as they may appear to the public eye, they are certainly more cunning than this.

  6. John says:

    Important matters involving children, belong in the courts with professional, qualified personnel, and not with the incompetent amateurs at the CSA.

    The CSA is not fit for purpose, and is doing more harm than good, in its’ interference of a parents private family life!

    I’m waiting for a class action, and have kept all my paperwork, to hand to lawyers for the day when I have my day in court!

  7. David Joseph says:

    Every comment here is interesting. I thank you all for your indelible contributions.

    What many people are not aware of is the fact that CSA forms part of a conspiracy by governments and other powers determined to destroy families and social cohesion in this once great nation. The CSA functions the way it was supposed to. It was in every way designed to be an oppressive system. The CSA Act 1991 itself comes from a piece of European directive, the purpose being to remove peoples assets from them – to drive us into poverty for the the illicit purpose of those who wants to control us.

    You should also be aware the the court system, our local councils, the banks and so on are all in on the act. These organisations are not truly governmental but exists as companies in order to make a profit and steal from us. Check it out for yourselves and you will see that the courts are companies and a number of them even have CCJ’s against them.

    Look at the way families are breaking up as never before and how governments are using this to their advantage to steal our assets and children. The breakup of society was also designed by our despotic government. Do you think we live in a democracy? Think again! Why is it that every incumbent government reneges on their original mandate, the very thing which caused us to vote them into government? It is because more powerful technocrats control what they do.

    If we are to get a proper resolution to our problems with the CSA and others, we need to seek advice from people who are experts in common law and understand much of the plethora of legislations and regulations in this area. David Burrows is right about the CSA 1991. It started off having about 58 sections but now it is double in size and more confusing that ever. Many legislation contravene our rights as citizens of this country but too many are blind to this fact.

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