Child Support: A Comparison of the Old and New Approaches
by Susan Grace Jenkinson LL.M.
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Child Support Act 1991

On to this disastrous, but accepted situation, was dropped the CSA, which was suggested, discussed, and implemented in a incredibly short time [15] with surprisingly little opposition, most sensible and far-sighted debate having taken place in the Lords:

"This bill is not a child support bill it is a taxing bill. I am surprised the Chancellor of the Exchequer has not accepted it as a money bill and included it as a schedule to the finance bill … it is a middle class approach to continuing obligations of men towards their children [16]

"However many maintenance debtors or creditors, how many can make head or tale of what it means. It is just as incomprehensible as the ancient Egyptian Hieroglyphics must have been to an illiterate peasant in the Nile delta" [17]

The principles were accepted pre-implementation, and yet consultation was inadequate for a scheme that operates on the border of the welfare and legal systems. There is little doubt it was driven by the need to address problems around the escalating benefits bill [18], and debate emphasised the financial liability of fathers as their further and greater responsibilities were little discussed. This was compounded by the skeletal or "enabling" nature of the CSA 1991, stifling effective debate, truly the devil was in the detail or at least in the subsequently published regulations. (There were 13 Statutory Instruments in 1992, 8 in 1993, and 2 more in 1994 relating to CSA 1991). While the act was an unprecedented extension of the state's power into private affairs, the legislation had minimal scrutiny. Parents had become polarised, in most part by gender, into the caring and paying [19], although the Zeitgeist has shifted and organisations like Family Need Fathers (FNF) [20] have since 1974 brought into public debate the role of a father [21], focusing beyond the wallet. Issues around Parental Responsibility for unmarried fathers are important. The Children Act 1989 is to be amended to provide all fathers who register the birth, automatic Parental Responsibility [22]. A common reaction of unmarried fathers is disbelief to the present situation. The media and pressure groups have established to all but a tiny minority a certainty that a father will be held to financial account for their children (how efficiently such sums are expected to be gathered is another matter). The unmarried father who then discovers he has to earn parental responsibility, or the married father who discovers how effectively an obstructive spouse can be at blocking contact, is unlikely to be receptive to his child support obligations, however effective the legal system is at separating contact and money issues:

"Four out of five men correctly thought there was no difference between married and unmarried fathers with regards to financial liability for a child. Many mentioned the existence of the CSA in this connection and it was there is an awareness which led them to suppose that the legal situation of married and unmarried fathers was the same in all material respects" [23]

So in 1993 the CSA arrived (as a result of the 1991 Act), bringing with it, in most cases, huge and unwelcome changes.

"The amounts of money sought, have also proved painful in a society accustomed to serial partnerships but low levels of child support, when the mobile parent usually the father has a founded second family" [24]

Treasury driven, there was no Income Support disregard [25], making it clear that although the debate had been heated between the Treasury and the DSS, in the end this was a Treasury motivated measure, rather than an attempt to alleviate child poverty, giving both the NRP and the PWC reason not to co-operate, and it has ensured the CSA can always be seen cynically. Although lots of different models of child support had been looked at the government was determined to move away from the courts and discretion to a "next steps agency" with rigid formulaic consistency within an administrative, rather than judicial, context. As the inflexibility of this formula began to bite, howls of protest began and any good will evaporated [26]. It was hard to argue against the principle that all parents should support their children, but the reality of the substantially increased amounts led to widespread social protest. The voices of the objecting NRP appear to have drowned those of the PWC, for whom an effective agency could have had a beneficial impact, releasing them from the poverty trap, including the trap previously discussed. There was fundamental unfairness in a system that disregarded previously agreed clean breaks Crozier v Crozier [27]

"The fact that a sum required from the absent parent might be greater than before was a consequence of a procedural change and not of any new and unforeseen power vested in the state" [28]

Clean breaks that had been encouraged by the Matrimonial and Family Proceedings Act 1984 made no allowance for second families, sweeping away the concept of "children of the family" creating difficulties for NRP who were struggling to reconcile their biological and social parenting roles in the "new families". This was combined with a level of administrative incompetence that had never been seen before.

"However threatening the agency might appear in its initial approach to our respondents, if they held their nerve and their tongues these threats were seldom implemented " [30]

This meant there was a lack of co-operation and a failure to improve the lives children. The language of the 1991 act with its absent parents and parents with care [31] reflected the culture and motivation of the legalisation. The formula's complexity [32] was often unable to produce sensible results and, because of Treasury objectives, it soon became clear that the agency was forced to go after "soft targets". These were often middle class parents, who were unlikely to have been in receipt of means tested state benefits, and thus were unused to bureaucratic intrusion in their personal lives.

"Targeting was perceived to be in direct contradiction with the moral obligation of the act and the enforcement of parental responsibility on the part of men who had hitherto ignored them" [33]

This could be extremely detrimental to the relationship between the parents Smith V McLean [34]

"Such mechanisms run counter to the spate of modern law of financial provision on divorce and will do little to improve the relationship between the former spouses, who will have the prospect of a potential child support claim hanging over them until the children are grown up" [35]

and hence to children, and ensuring that the truly deadbeat were left to carry on with their feckless life style with little to fear from the CSA.

"However threatening the agency might appear in its initial presentation to parents, our respondents found that if they held their nerve and their tongue, their threats were seldom implemented" [36]

Apart from the injustice of ignoring clean breaks, problems of increased litigation began to emerge with legal aid cost implications, as it was less easy for parties to reach a settlement with child support hived off; children do not exist in a vacuum, and arguments around the family home increased. While middle class objections were a media focus the lot of the poorest families were not improved either by the transfer of child support from a judicial to an administrative setting [37]. Because of the administrative incompetence the act was not a liberation, but an oppression, transferring dependency from the state to the private sector. There was a disproportionate impact on the poorest children, with even the existence of the CSA causing loss of informal arrangements. Lives vastly complicated by poverty, were not helped. Yet, it was the better off of those whose voices were heard, who were able to exploit their greater resources and access to the media.

Notes

[15] The bill was published on the 14th February 1991, two months after the closing date for responses to the White Paper, and gained Royal Assent 25th July 1991

[16] Lord Haughton , Hansard 25.02.1991 col 812

[17] Lord Sims , Hansard 25.02.1991 Col 817

[18] White Paper Children First op cit emphases 750,000 lone parents dependent on IS and only 30 % of lone mothers were receiving any regular maintenance.

[19] Barton C, Douglas G, Law and Parenthood (1995) Butterworths

[20] FNF, founded in 1974 is a registered charity, it was originally concerned with issues around contact, and its focus has significantly shifted since the advent of the CSA.

[21] Culminant in the recently established forum Fathers Direct, funded by the Home Office.

[22] Adoption and Children Bill 2001 s91

[23] Pickford R, Unmarred Fathers and the Law in What is a Parent ed Bainham A, (1999) Oxford p146

[24] ibid p148

[25] unlike the Australian system

[26] Particularly in the media, it was inevitable that the vast majority of the parents in the middle-income brackets were most affected, and indeed composed the press.

[27] [1994] Fam Law 114

[28] ibid p3

[30] Davies G Child Support in Action op cit p95

[31] CSA 1991 s3(2) (3)

[32] Eventually over 100 pieces of information (all variable) were required before a Child Support Officer could make an assessment

[33] Glendenning G Implementing the CSA (1996) 18 JSWFL 273

[34] [1994] 2 FLR 1077

[35] ibid

[36] Davies G , Child Support in Action op cit p95

[37] Abbot D, The CSA 1991 and the Lives of Parents with Care Living in Liverpool (1996) 18 JSWFL 21

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Page last updated: 13 October, 2002 © Copyright Susan Grace Jenkinson 2001