Will we ever have a child support system that works?

Family Law|November 16th 2015

Last week the single parent charity Gingerbread expressed concern about the arrears of child support that have accumulated since the Child Maintenance Service began accepting all new child support applications in 2013. I have already briefly commented on the story in my post here last Friday, but I wanted to elaborate a little upon what I said then. Note that for the purposes of this post I am using the term ‘child support’ to refer to arrangements made via a non-court agency such as the Child Support Agency (CSA) or the Child Maintenance Service (CMS), and the term ‘child maintenance’ to refer to payments ordered by a court.

First, for the benefit of those who don’t know the background, a little history.

Before the child support system was brought in in 1993 following the Child Support Act 1991, child maintenance was exclusively the preserve of the courts. Under various statutory provisions the courts were empowered to make maintenance orders to or for the benefit of children. Those provisions (which, incidentally, still exist for those cases falling outside of the child support scheme) did not impose any formula upon the courts, instead giving the courts a discretion as to how much the non-resident parent (NRP – to be consistent, I will use the current terminology of the child support scheme) should pay. The courts also dealt with the enforcement of orders that were not paid.

In 1993 the CSA was launched, taking over from the courts responsibility for most child support/maintenance cases. The agency used a formula (which has been changed over the years) to calculate the amount of child support, collected the child support from the NRP and paid it to the parent with care (PWC). Unfortunately, the CSA came in for heavy criticism, not least for its failure to collect huge sums of child support (more of which in a moment), and therefore successive governments have reformed it, in an attempt to address these issues.

In 2008 the Child Maintenance and Enforcement Commission (CMEC) was established. It did not, however, replace the CSA. Instead, it was tasked with maximising “the number of children living apart from one or both parents who have effective maintenance arrangements in place”. One of the ways it was to do this was by “securing compliance with parental obligations as set out in the Child Support Act 1991”. Unfortunately, CMEC was not successful with making the problems of the child support scheme go away, and it was abolished in 2012.

Instead, the government came up with a new plan: phase out the CSA and replace it with the CMS, which would encourage parents to agree their own child support arrangements, partly by imposing a fee if they can’t. The CMS has dealt with all new cases since November 2013, and will take over the remaining caseload of the CSA in 2017.

Now, back to those unpaid sums of child support. Gingerbread mentioned that the CSA had run up £1 billion of arrears. In fact, it is just a little worse than that. The actual figure is some £3.9 billion, but the Department for Work and Pensions (DWP) deemed £2.9 billion of those arrears to be “uncollectable”. Just think of that figure for a moment: three point nine billion pounds. It’s a quite staggering sum, and it really doesn’t bear thinking about what a difference such a sum could have made to the lives of so many children. Just last Friday the BBC’s Children in Need appeal raised £37 million, less than a hundredth of that sum, and thought it was doing well for needy children.

So, how well is the CMS doing when it comes to arrears? Not that well, actually. The statistics published by the DWP that led to the concerns of Gingerbread show that it has already run up some £35 million of arrears, and that that sum is increasing at the rate of about two million pounds a month. Now, obviously this figure is more modest than the figure for the CSA (although still bad enough), but it must be remembered that the CSA had a far greater caseload. Whatever, the big concern, as Gingerbread state, is that the CMS clearly still hasn’t resolved the arrears problem, and is soon to take on £1 billion of arrears from the CSA. I can’t imagine that many PWCs are going to be instilled with confidence that they will see any of the money that they are owed.

Could the answer be a return to the old court-based child maintenance system? At least under that system a PWC had a measure of control in that they could apply to the court to take enforcement action when arrears accrued, rather than relying upon some agency to do it for them. However, a return to the court system has previously been rejected, and in the present climate where governments seek cheap solutions, I can’t see a court based system being resurrected, with the cost that that would entail.

It seems that we are still as far as ever from having a child support system that works. Meanwhile, the children continue to suffer.

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  1. spinner says:

    It would be interesting to see how many of the cases where the NRP has fallen into arrears also had issues with child contact. If the courts enforced child arrangements robustly so generally fathers got to see their children they are being asked to pay for, I suspect the number of case of non payment would decline.

  2. Andrew says:

    A court-based system would also mean that some common sense could be brought to bear; that unusual circumstances could lead to non-formulaic orders; and that (as in spousal maintenance) uncollectable arrears could be written off.
    But neither PWC nor NRP should be allowed to link contact to maintenance.Children are not pay-per-view. A well-run court system would have a rule that witness statements about maintenance from the NRP which discussed contact, or from the PWC which discussed maintenance, should be taken off the file.

  3. Nordic says:

    John and Andrew
    You must be completely devoid of any personal experience of what court processes can do to parents, and by extension their children, to make such a crazy suggestion. If “courts” is the answer, then the question you are both asking must be “how can we make even more money out of families’ misery”. It certainly is not the children involved that concerns you.
    I agree that the CMS/CSA system is a disgrace, but the answer is to fix the system, which suffers from many obvious flaws and discriminatory practices. To mention but a few:
    1. While payments and contact should not be linked, both should be enforced with the same vigour and consequence. If the RP knew that contact denial would be accompanied by unpleasant consequences, we would have much less contact denial. There is ample evidence of this causation from other jurisdictions.
    2. CMS/CSA payments should be decoupled from child benefits, which HMRC by default grants to the mother on divorce. Even if the children live with the father and he pays for everything, it can take months if not years to get HMRC to change this discriminatory starting point.
    3. CMS/CSA payments are based on PAYE income reported to the HMRC. Hence, wage earners are made to pay, but NRPs who live of dividends and capital have ample room to play the system. It is a complete mystery to me why the CMS insists on asking for the wrong HMRC data. CMS payments should obviously be function of on net taxable income from all sources as reported to the HMRC.
    4. The expense compensation for the NRPs travel costs is simply a joke and highly discriminatory against the NRP. The obvious correct principle is that both parents share this cost equally (I.e. one parent brings, the other collects).
    5. There should be no option for applying to the courts for “top up” orders above the CMS income threshold. Such top up orders are de facto spousal maintenance and should be treated as such.

  4. SARAH says:

    John/Nordic – I totally agree with you both.
    It is the children that suffer the most both financially & emotionally. There are some much needed changes in the CMS and even a few basic changes (I believe) would make a massive difference. In my experience with dealing with them they are quite frankly incompetent at best.
    Even if they made the change that you dealt with the same person or even the same team every time you called would save massive amounts of everyones time & efforts. From April 2016 to date i have probably spoken to 30 – 40 different people none of whom tell me the same thing which has got me nowhere. My son is 7 and this is the first time i have contacted them for help as i am desperate but unfortunately contacting the Child Maintenance Service has put me in a worse financial situation than i was prior to involving them. Surely this needs to change?

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