Or maybe just return to the old system…
I’ve often argued here against the child support maintenance system, and in favour of the return to the old court-based system of determining child maintenance. My main reasons for this are the unfairness of a rigid formula-based system and the staggering inefficiency of the child support system, which has failed to recover some £3 billion over the years. However, there is another reason: the sheer complexity of the child support system.
This thought comes to me every time I read the report of a child support decision, usually by the Upper Tribunal, and thus came to me again last week when I glanced at three recent such decisions. I’m not going to talk about those decisions, save to say that, like all child support decisions, they involve quite complex law, including statute, cases and a huge amount of secondary legislation, making them difficult to read and understand even for most lawyers, and surely virtually impenetrable for non-lawyers. If you want to see what I mean, have a quick look at the cases here, here and here. Remember that a large proportion of parties appearing in these cases have to do so without the benefit of a lawyer advising them. Quite how they are able to follow the arcane intricacies of what is going on is beyond me.
But of course an administrative formula-based system, as against a court-based discretionary system, has to be like this. Virtually everything has to be carefully defined by the rules, so that the system can as far as possible work ‘automatically’ on its own, without recourse to such uncertainties as judicial discretion. And when you stop and think of all of the possible complications that could arise in connection with a decision as to how much child support a non-resident parent (NRP) should pay (take it from me: you will only be able to come up with a tiny fraction of the possible complications), it is easy to see why the rules are so voluminous and complex. I don’t know how many statutory instruments there have been dealing with child support, but it is quite a few, and most of them are pretty long.
On the other hand, the old court-based system of deciding child maintenance, which still exists to deal with those cases falling out of the remit of the child support system, is essentially contained in just a couple of paragraphs of the relevant statute. For example, in Schedule 1 of the Children Act you have one paragraph which gives the court the power to make child maintenance orders, and another paragraph which sets out the matters to which the court is to have regard when making such orders. And that is about it. The rest is left to the discretion of the judge or magistrates dealing with the case. No need to delve into reams of secondary legislation to find an answer to a point, assuming there is one.
And then there is the tricky question of interpreting all of that legislation. How many times have I seen cases in which the Upper Tribunal has found that the First-tier Tribunal wrongly interpreted legislation? And if the tribunal judges can’t get it right, what chance all those parents with care and NRPs, trying to hack a path through the legislative jungle without the benefit of a lawyer?
The child support system was supposed to make things simpler. We would have a formula that would be used to quickly and easily work out what every NRP should pay. But it just hasn’t worked out that way. It has made things far more complicated, and at a time when fewer people than ever can access the assistance of a lawyer.
Could the system be simplified? I really don’t see how it could. As I said earlier, a non-discretionary system has to have virtually everything carefully defined, and that inevitably leads to complexity. And I haven’t even mentioned the complexities arising out of the fact that the child support system is separate from the courts and therefore has to have its own procedural rules.
There is, of course, an obvious answer: scrap the whole thing and return to a court-based system for everyone. Or is that just too simple?