On Monday the single parent charity Gingerbread published a report looking into the issue of child maintenance avoidance. It paints a pretty damning picture of just how easy it is for some paying parents, particularly the self-employed and those who support themselves with assets rather than income, to avoid paying child maintenance, or to avoid paying their full liability.
The report looks at the experiences of five receiving parents whose former partners were allowed to pay minimal maintenance or avoided it altogether, as a result of the child support system failing to take their true financial circumstances into account. One of the five parents, incidentally, is the mother in the recent Green v Adams case, in which Mr Justice Mostyn commented upon the ‘extraordinary state of affairs’, whereby it was possible for the father to be required to pay child maintenance of only £7 a week, despite the fact that he was a millionaire. The reason for this was that the father was essentially living off his capital with very little income, and the new child maintenance rules no longer include a facility to seek a variation from the usual maintenance calculation based on the paying parent’s income, on the grounds that that parent has “assets”.
Now, the report goes into a number of issues surrounding the difficulties of ‘pinning down’ a recalcitrant paying parent. However, what much of it boils down to is the same issue that has been there ever since the whole matter of child maintenance was taken away from the courts (for most cases) back in 1993: it took away control of the case from the receiving parent.
Under the old court-based system of child maintenance the receiving parent was in complete control of the case. Incidentally this system still exists for those cases where the Child Maintenance Service (CMS) does not have jurisdiction, for example most cases where the paying parent lives abroad.
Receiving parents could take the case wherever they considered appropriate, without having to rely upon the CMS (or its predecessor, the Child Support Agency) doing it for them.
No disrespect whatsoever to the employees of the CMS, but it is surely self-evident that in these days of limited resources and target-setting the CMS is not going to be able, or willing, to pursue a recalcitrant paying parent with the kind of determination that can be required to prove the true position of their finances. Getting to the bottom of the financial arrangements of someone who is being wilfully obstructive can be a hugely time-consuming and resource-demanding task, one that needs a particular kind of expertise that the CMS may simply not possess or have access to.
Under the court-based system the receiving parent could instruct a lawyer to handle the case for them, in accordance with their instructions, and the lawyer in turn could instruct whatever expert or other assistance was required, such as a forensic accountant, or an enquiry agent. Of course, this could involve considerable expense, but back in the pre-CSA days legal aid was available to all receiving parents who could not afford a solicitor. With the help of a lawyer and others the receiving parent stood a much better chance of getting the maintenance that they (and of course their children) were entitled to.
The Gingerbread report speaks of the immense mental and physical strain that many receiving parents go through having to fight their cases alone, including obtaining evidence themselves against the paying parent themselves, and doing so with little or no help. Unsurprisingly, Gingerbread says that many receiving parents simply give up. I don’t recall any parents ever giving up back in the day when I represented them on applications to the court for child maintenance.
Of course, the court-based system wasn’t perfect, and there could never be a guarantee even back then that parents meant to be paying would not ‘get away with it’, but I’m sure it is the case that it is considerably easier now to get away with it than it was then. Taking control away from the receiving parent is, to my mind, a fundamental fault in the entire idea of a non-court-based child maintenance system – and even if the recommendations that Gingerbread makes in its report are implemented, it is a fault that will remain.