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