Child Support: A Comparison of the Old and New Approaches
by Susan Grace Jenkinson LL.M.
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Child Support Act 1995 and Departures

It was inevitable that the newly targeted middle class NRP needed to distance himself from the truly feckless. So successful was this that indeed most changes from 1991 have benefited this group. Press coverage had played a major part in successfully constructing the NRP as the victim of the system and had allied their wishes to the welfare of their children. [38]

As protest grew [39] and co-operation declined as it became clear that the agency lacked resources, competence and teeth [40]. Numerous bits of tinkering [41] took place to alleviate the worst injustices of an inflexible system, and to make the system more effective. It became clear that although pre-CSA debate and concern had mostly centred on concerns for PWCs who were to be forced to name a violent father,

"the underlying proposal is the more objectionable aim of cutting benefit to one parent families. It is impossible that the government does not allow its contract to the tax payer to take precedence over the financial well being and physical safety of women and children" [42]

This had not materialised into a major problem; although a high percentage of benefit cases sought to remove themselves with "good cause" [43], it was likely to be in order to protect informal arrangements that would be jeopardised by the CSA's involvement. In contrast, the major problems revealed themselves to do with the NRP who

"In future was able to show themselves as victims by portraying the act as risking his already fragile father/child relationships" [44]

There were the undoubted cases of injustices caused by its retrospective nature. In order to address these problems in 1995, a system of departures (from the formula) were introduced.

"Departures represent an admission that the formula how ever it is tweaked can not meet the demands for a more individual system of assessments" [45]

An extra allowance was added to exempt income, in some strictly regulated circumstances, including previous clean breaks, and some unavoidable financial commitments entered into during a marriage. Some travel to work costs were to be allowed (it was this lack of an allowance that often left the NRP, coupled with the consequences of marital debt, worse off working.) There was an important recognition of the value of a parent beyond the wallet, with allowances for contact costs. Containing a sting in the tail, the contact must be established and pre-existing (a Catch 22 in straitened financial circumstances) or the NRP and PWC must have agreed such a pattern for the future. Yet as Hayes and William point out

"From the child's point of view, it is far more important that his absent parent fulfils his duty to show the child affection, care and interest by visiting the child and otherwise being involved in his upbringing, than he pays a small sum of money" [46]

Although there was provision for a PWC to claim the NRP lifestyle was inconsistent with their declared income, it remained up to them to prove this (the CSA having almost no resources available for investigation; although holding some draconian powers they are little used)

"Indeed if parents feel pressured to turn themselves into private detectives it is to be expected this will give rise to a certain amount of antagonism" [47].

A PWC had little ability to initiate such investigations. In the main departures have benefited the NRP. With the introduction of the departures modification to the formula, its application became even more complex.

"The complexity of the formula can scarcely be overstated, it causes immense operational problems, few parents can understand it and it heightens the sense of grievance, discouraging compliance and a deeply felt sense of injustice" [48]

With further room for error [49],

"a good example of Government reaction to pressure group and adverse media comment. What began as a really straight forwarded scheme has been converted as the result of the Governments willingness to accommodate almost every suggestion for reform into a Byzantine labyrinth, constantly relaxing and tweaking a simple formula has mutated and is incapable of sensible management" [50]

Injustices were indeed remedied with the introduction of departures i.e. the clean break situation, yet in complicating further the formula new and different injustices were inevitably developing.

Notes

[38] In particular the argument that a non-resident parent paying child support could no longer afford contact with his child. Wellbank J, The Campaign to Change the CSA 1991 (1997) JSLS 191 p198

[39] Civil disobedience and threats against CSA staff

[40] It has only become an offence to give the CSA false information since the 31st of January 2001

[41] By Statuary Instrument and Regulation

[42] Gosforth A, Legal Action (1990) p23

[43] CSA 1991 s6 (2) The percentage of good cause applications accepted has slowly declined as the numbers of applications has increased

[44] Wellbank J, The Campaign to Change the CSA 1991 op cit p205

[45] Davies G, et al Child Support in Action op cit p36

[46] Hayes, M William, C Family Law Principals Policy and Practice (1999) Butterworths p725

[47] Davies G Child Support in Action op cit p199

[48] ibid p23

[49] National Audit Office "there is significant risk of error inherent in the (current) assessment process" NAO Child Support Agency Client funds Account 1999 2000 quoted in Wikeley N, Child Support the New Formulae (2000) Fam Law 820

[50] Mostyn N, The Green Paper on Child Support [1999] Fam Law 95

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