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2000 Act - sex discrimination in the child support law

Is there a bias towards mothers in the child support legislation?

This is not a discussion about whether the way Family Courts assign residency or access favours mothers. Nor is it about whether the CSA's culture is biased towards women.

This article is specifically about:

"is there an explicit bias in the child support legislation in favour of mothers against fathers?"

The answer is probably yes.

(There may be more than one).

Child support & Child Benefit

Here is the result of a court case in 2002 that examined this issue:
England and Wales High Court (Administrative Court) Decisions - KEVIN BARBER (Claimant) and SECRETARY OF STATE FOR WORK AND PENSIONS

Here is a news article that described it:
Father loses child benefit test case (BBC 2002-07-17)

In summary:

all other things being equal, the person who receives Child Benefit is the one designated the parent with care (PWC), and hence receive child support from the other parent, who will therefore be designated non-resident parent (NRP)

all other things being equal, Child Benefit is allocated to wives (when the parents are married) or mothers (where they are not married)

This bias will arise in the following circumstances:

either the parents choose that the wife / mother claims Child Benefit, or they both claim Child Benefit in which case it will go to the wife / mother by default, and

the parents share care of the child equally after separation, and the decision about who pays and who receives is then made according to who claims Child Benefit

In the latter case, other factors such relative incomes of the parents are ignored - it is really about time. Once the decision has been made, once again the PWC's income is ignored. The entire process ignores whether the PWC earns less than, the same as, or even 10 times as much as, the NRP. What matters is who is the mother rather than the father.

Note: the bias about Child Benefit is written in terms of who should get Child Benefit when the parents are living together. This will typically continue when they separate, but this doesn't appear to be explicit anywhere - it is a case of "as the Secretary of State may in his discretion determine". That is why the answer above it "probably yes".

Child support legislation involved

(This identifies the legislation for the reformed scheme. The same bias exists under the current scheme).

The Child Support (Maintenance Calculations and Special Cases) Regulations 2000
(PART III SPECIAL CASES Persons treated as non-resident parents)

Persons treated as non-resident parents
8. -

(1) Where the circumstances of a case are that -
(a) two or more persons who do not live in the same household each provide day to day care for the same qualifying child; and
(b) at least one of those persons is a parent of the child,
that case shall be treated as a special case for the purposes of the Act.

(2) For the purposes of this special case a parent who provides day to day care for a child of his is to be treated as a non-resident parent for the purposes of the Act in the following circumstances -
(a) a parent who provides such care to a lesser extent than the other parent, person or persons who provide such care for the child in question; or
(b) where the persons mentioned in paragraph (1)(a) include both parents and the circumstances are such that care is provided to the same extent by both but each provides care to an extent greater than or equal to any other person who provides such care for that child -
(i) the parent who is not in receipt of child benefit for the child in question; or
(ii) if neither parent is in receipt of child benefit for that child, the parent who, in the opinion of the Secretary of State, will not be the principal provider of day to day care for that child.

The Child Support (Maintenance Calculation Procedure) Regulations 2000
(SCHEDULE 2 Regulation 4(1) MULTIPLE APPLICATIONS)

(9) Where, in a case falling within sub-paragraph (8), there is more than one person who does not fall to be treated as a non-resident parent under the provisions of regulation 8 of those Regulations, the Secretary of State shall apply the provisions of paragraph (10) to determine which application he shall proceed with.

(10) Where -
(a) more than one person with care makes an application for a maintenance calculation under section 4 of the Act in respect of the same qualifying child or qualifying children (whether or not any of those applications is also in respect of other qualifying children); and
(b) either -
(i) none of those persons has parental responsibility for (or, in Scotland, parental rights over) that child or children; or
(ii) the case falls within sub-paragraph (8)(b) but the Secretary of State has not been able to determine which application he is to proceed with under the provisions of sub-paragraph (8),

the Secretary of State shall proceed with the application of the principal provider of day to day care, as determined in accordance with sub-paragraph (11).

(11) Where -
(a) the applications are in respect of one qualifying child, the application of that person with care to whom child benefit is paid in respect of that child;
(b) the applications are in respect of more than one qualifying child, the application of that person with care to whom child benefit is paid in respect of those children;
(c) the Secretary of State cannot determine which application he is to proceed with under head (a) or (b) the application of that applicant who in the opinion of the Secretary of State is the principal provider of day to day care for the child or children in question.

Child Benefit legislation involved

Social Security Contributions and Benefits Act 1992
(Schedule 10 - Priority between persons entitled to child benefit)

Husband and wife
3. Subject to paragraphs 1 and 2 above, as between a husband and wife residing together the wife shall be entitled.

Parents
4.—(1) Subject to paragraphs 1 to 3 above, as between a person who is and one who is not a parent of the child the parent shall be entitled.
(2) Subject as aforesaid, as between two persons residing together who are parents of the child but not husband and wife, the mother shall be entitled.

Other cases
5. As between persons not falling within paragraphs 1 to 4 above, such one of them shall be entitled as they may jointly elect or, in default of election, as the Secretary of State may in his discretion determine.

Social Security Act 1998
(Schedule 2, DECISIONS AGAINST WHICH NO APPEAL LIES)

Priority between persons entitled to child benefit
4. A decision as to the exercise of the discretion under paragraph 5 of Schedule 10 to the Contributions and Benefits Act.

Does it matter?

Does explicit sex bias in legislation matter? Decide for yourself.

Are there enough cases to worry about? Remember that for every one of the people adversely affected, they cannot get consolation in the fact that there aren't many of them. They are each affected 100%, for up to 18 years.

But what really matters is that this shows the biases and deep flaws in the UK's child support system. This bias (above) was known to ministers and law-makers at the time they wrote the law. They simply decided that it was at least acceptable, if not desirable.

When everything is exactly equal (or even if the mother earns far more than the father), the father pays money to the mother for up to 18 years, because she is already getting money from the state that he isn't.

New Testament - Luke chapter 19:

"For I say unto you, That unto every one which hath shall be given; and from him that hath not, even that he hath, shall be taken away from him."

Does the government know?

The minster responsible for Child Support is The Rt Hon Baroness Hollis of Heigham (Patricia Hollis).

Her day-to-day responsibilities include child benefit and lone parents, child support issues and the Child Support Agency, family policy, women's issues and industrial injuries as well as responsibility for all social security matters in the Lords. Baroness Hollis is widowed with two sons.

Decide for yourself whether she knows about Child Benefit and its interaction with child support.

References

[1] DSS Decision Maker's Guide (Chapter 50 - Child Benefit)

Husband and wife

50116 Where a husband and wife are residing together and both claim CHB the wife has priority over her husband.

Social Security Contributions and Benefits Act 1992 (Schedule 10)
Social Security Act 1998 ((Schedule 2, Priority between persons entitled to child benefit))

Parents

50118 If the parents of a child are residing together but are not married to each other, the mother has priority.

Social Security Act 1998 (Schedule 2, Priority between persons entitled to child benefit)

[2] House of Commons RESEARCH PAPER 98/79 (Child Benefit)

"Child Benefit is a universal benefit paid regardless of income or capital to a person responsible for a child, usually the mother".

[3] CSA Reform White Paper
Children's rights and parents' responsibilities

"In the few cases where care is shared equally, there are clearly questions about who is the parent with care and who is the non-resident parent. If both parents are in work, there is no requirement for child support to be involved, although the parent who is receiving Child Benefit for the children will, as now, be able to apply for a child maintenance assessment." (Chapter 7 paragraph 16).

Page last updated: 6 July, 2004 © Copyright Barry Pearson 2003