Child Support: A Comparison of the Old and New Approaches
by Susan Grace Jenkinson LL.M.
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Child Support Pensions and Social Security Act 2000

Increasingly it became clear, as opposition failed to abate after the departures modifications, that the whole system needed root and branch change. Performance improved but public confidence had been lost. Yet, public attitudes to fatherhood were being significantly altered as increased financial demands were being made. In order to decide how modification could be successful, an extensive review of the existing schemes [51] and problems within the UK system began. It is noteworthy that the ensuing consultation documents emphases the needs of children, prioritising and alleviating child poverty as the bases for any reform [52]. The present government was able to learn from some of the mistakes of its predecessors and a much more joined up approach has resulted. The new law is contained in s1 of the Child Support Pensions and Social Security Act 2000 (CSPASSA 2000), which does not repeal the CSA 1991 and CSA 1995, but makes only specific repeals and substantial amendments. Changes to the tax and benefit system [53] mean that the CSPASSA 2000 version has more likelihood of successfully raising some children and the PWCs out of poverty.

There has already been a startling change in the profile and employment status of the PWC. In November 2000 the percentage of PWC with full maintenance assessments, in receipt of IS and job seekers allowance (JSA), was 41% with a further 24% in receipt of WFTC [54]. It was clear that the CSA is spending 90% of its resources doing assessments, and only 10 % on enforcement, which was absurd and would have required a far higher level of co-operation from the NRP than has been achieved anywhere in the world. In order to reverse these figures the new formula has been simplified to almost non-existence. CSPASSA 2000 s1 sch 1 specifies how little information will now be required: the NRP net income, the number of qualifying children, the number of other relevant children (second family/stepchildren), and the number of nights of NRP care. This contrasts to the increasing complexity surrounding the court system and departures; in the future it will simply be a question of percentages. It was clear that on examination of other schemes it was such a system with its ability to offer certainty that was most effective, in terms of collection (if not in terms of getting money to children). The objectives such a simplification hopes to achieve include, a faster response, so lower arrears, greater accuracy and predictability, and fewer interactions with the CSA, and above all else, a greater compliance. The percentage rate in order to justify ignoring almost all individual circumstances is a low 15% for the first child, 20% for two, and 25% for three or more, variations (departures) from this are to be strictly limited [55]. Disingenuously, the rhetoric is, that the majority of parents will be better off, of course these figures include the significance (in terms of principle if not monetary value) of the £10 disregard for children whose PWC is on IS or JSA. The majority of assessments will fall below the current average assessment, for example in February 1998 it was £39 per week, and the average under the new formula will be £29 per week [56]. Although parents on IS have been falling as an overall percentage [57] it is still only they who have to use the agency [58], so there remains a two tier system, reflecting that government motivation has not changed far. It is hoped that this disregard will encourage co-operation from both PWC and NRP who will see at least part of their child support going to the children's household. A recent change with implementation of s14 of the CSAPASS 2000 from January 31st 2001 - it has finally become an offence to fail to provide the CSA with information or to provide false information. This late realisation that such a sanction might be necessary says a lot about the original unrealistic expectations for compliance. Further, from April 2nd 2001, s16 empowered magistrates to disqualify a non-compliant NRP from driving, where this might be a more appropriate sanction.

There are undeniably problems within the new system, which will become increasingly apparent as implementation begins. There is a great deal of resentment amongst NRPs [59], in the light of a likely drop in contributions. The transition for existing cases is to be staggered from April 2002, and moves will not be of more than a few pounds a week per year (depending on net income) to ensure that the PWC can adapt to changing income levels. The old hands who saw their court ordered maintenance and clean break settlements sometimes multiplied many times by the CSA, and who had to adapt overnight, might feel particularly resentful. The migration of old cases onto the new scheme will also require considerable resources and expertise, and the CSA will be attempting to run both systems in parallel, for some time, something that must be a cause for concern.

Flaws within the new system are obvious, however it seems likely the government is aware that it is impossible to please all the people all of the time, and they have chosen to ensure that the least offence is caused to the vast majority; past experience haunting all efforts to improve the system. The biggest and most glaring problem is the shortfall between the actual cost of children and the percentage system [60]. Only the PWC who earns a lot will be the same or better off, this is justified by a hoped for better compliance rate, but

"this it may be argued, is a cynical and unprincipled , for why should the fact of non compliance be a reason for reducing payment for paying parents" [61]

The choice of such low percentages does not reflect the actual cost of raising children. Further, the fact that a stepparent will now be able to reduce his liability [62] to his biological child on the basis of the other children in his home significantly breaches the biological/ financial link. This effectively means in some newly constructed families it will be possible for some children to be supported by two fathers, and some by one, but not biologically related, in the same household. However, it is to be hoped this will help promote cohesion in second families units, promoting commitment from a stepparent to his stepchild. In the light of the recognition of the importance of joint parenting the shared care formula is still wrong, Re D (children) (shared parenting order) [63] held that, where a child was spending substantial amounts of time with both parents a shared residence order could well be the answer. It was not necessary to demonstrate exceptional circumstances or a positive benefit to the child, but was sufficient that it could be shown to be in the child's interest. Yet, the new system is placing a poor father in an impossible position, if he wishes to share care. If the money does not follow, the child conflict will arise, as neither parent will be able to afford to be the absent one. If parents share care equally, only the one who is claming Child Benefit will be the PWC. So with equal shared care the NRP may still have to pay the PWC nearly half of what he would have had to pay if he never saw his child, even if the PWC earns the same or more than the NRP. Although the 104 night rule has been reduced to 52,

"it still leaves plenty of scope for warring parents to continue arguments around the extent of shared care " [64]

There seems to be an acceptance and resignation that a formula cannot truly reflect the subtleties of shared care.

There are two important, if symbolic, changes that the government has missed. It is a pity that child support is not formally awarded to the child [65]; although it would make no difference to how it is spent in the case of younger children, it would have had immense symbolic value. Resentment over the current carer's allowance, (which actually reflects part of the cost of rearing a child) being indirect spousal maintained, might have been lessened if the NRP could regard that the payment was in order for the child to purchase care, rather than handing the money directly to the PWC. Further, a system of self-assessment for those willing to co-operate would have returned some sense of autonomy to many. The new formula makes no allowance for housing costs reflected in the low percentages and will disadvantage the middle class NRP who has embarked on a second substantial mortgage, his housing costs currently being part of his exempt income (a potential for complaint.) It is hard to justify the absence of the PWC's income, although they are not often relevant in the calculation. This is justified by the fact that the child inevitably shares in the PWC's living standards and income, but this contrasts with the White Paper.

"Recognises all parents have a legal responsibility to maintain their children". [66]

There can be no doubt that upon implementation there will be much made of the financially absurd situations which will be revealed, where the PWC is a substantially higher earner than the NRP. This overlooks the important symbolic value to a child of knowing that both their parents contribute to them at least economically. At the last minute a cap has been placed on an NRP liability of £300 per week (for one child, higher if there is more than one), which correlates to an annual income of £170,000. The DSS estimates this will affect between 50 and 100 cases a year. This appears to be a small concession to those concerned about wealth redistribution without reference to need. Although for those with this concern, it contrasts unfavourably with the present scheme where a maximum is normally reached where an NRP has an income of approx £47,000, there will also be a minimum payment. Which, bearing in mind IS levels are subsistence, it will be hard to justify, in particular when it is noted that almost all contact with a child involves some cost, even if only a bus fare. There remains a danger that such anomalies, as will inevitably be revealed, will undermine implementation of CSPASS 2000. It is possible that the substantially lower percentage will be forgotten in the furore that will inevitably be attracted to such exceptional cases.

Notes

[51] The Australian scheme was very influential, (as was Wisconsin's very draconian one) but important aspects were ignored in the UK i.e. recognition of clean breaks and the use of the tax system to enforce payment automatically

[52] Children's Rights and Parents' Responsibilities op cit

[53] Currently WFTC will give a PWC a nil assessable income.

[54] CSA QSS (November 2000) DSS Analytical Services Division

[55] An NRP with high housing costs is likely to be worse off

[56] Knight E, Child Support Update [1998] Fam Law 606

[57] Child Support QSS op cit "in November 2000 the proportion of PWC with a final maintenance assessment in receipt of IS or JSA was 41% with 24% in receipt of WFTC"

[58] CSA 1991 s6(9)

[59] FNF the CSA White Paper 1999 evidence to the Select Committee

[60] The Government had Sue Middleton's Small Fortune research (1997) JRF which established the costs of children to be far higher than IS levels, and that both parents and children who are poor go without.

[61] Mostyn N, The Green Paper on Child Support [199] Fam Law p95

[62] If the NRP has another child living with him who is not a qualifying child then his net weekly income will be reduced by 15% before the basic rate is applied and 20 % for two children etc.

[63] [2001] 1 FLR 495

[64] Wikeley, N Child Support and the New Formula op cit p822

[65] As it is in Austria, Belgium, Denmark, France (some), Germany, Sweden, Norway. Corden, A. Making Child Support Regimes Work (1999) JRF

[66] 96% of NRP with earnings have former partners who earn less than £100 a week. Wikeley, N Child Support and the New Formula op cit p822

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