Integrating the court and benefit system

Susan Deas believes that if a fraction of the money that is directed at the CSA was spent on court services, the country would have a “Rolls Royce system'

A radical overhaul of the existing child support system was announced by the Secretary of State for Social Security Harriet Harman last week.

The Government is planning to scrap the existing formula and opt for an assessment based on a percentage of the father's net income. Not so much a formula as a ready reckoner. Indeed, Ms Harman likened the new method to the taxation system. The Government's task had, in pre-CSA days, been that of benefit recovery – recouping, from the father (usually), what the state was paying out for the mother and children.

The level of child support was an area of private law and was dealt with by the courts. The Government's pre-1993 concern was that, because the courts were (allegedly) fixing maintenance orders too low, the Government could not recover the benefits.

Actually, this was not the case as social security law provided that the “liable relative” could be chased by the DSS for the element it was paying out for the mother as well as the children, notwithstanding a purported spousal clean break under the terms of court order.

The argument about whether or not it is appropriate for the State to fix the rate of child support, even where the State has no financial interest in that family, has been lost. But child support rates and benefit recovery are not one and the same. Initial view of this Green Paper is that it is more heavily focused on the latter. In Harman's own words, “more fathers will pay, rather than fathers will pay more”.

The Government has calculated that the average assessment under the new system will be £29 (compared with £38 now), but that amount paid will be higher than the current average of £25. In other words, a net gain for the Treasury. But will children gain?

The rationale of maintenance disregard is twofold: to encourage mothers to cooperate with the CSA (as they will see the financial benefit in so doing); and to improve compliance from fathers who will know that the family is benefiting from payments made.

But should the Government go further? Benefits are calculated on the assessment of various premiums for the whole family unit. Once the State has recovered the benefit it is paying out in respect of the parent with care and the children who are the subject of the assessment, should not all of the balance of the maintenance paid go into the second family's coffers? Otherwise the non-resident parent can end up subsidising the new partner as well.

That perception has been a major disincentive to compliance. Whether fathers will pay will depend on effective enforcement. It appears that deduction from earnings orders are still going to be relied on heavily. This makes recovery from the employed father very straightforward. But Harman had nothing to say when pressed in the Commons about powers of recovery against the self-employed.

Bearing in mind the fact that the vast majority of cases settle, by definition the ones left to the court are the ones where there is a disagreement either about the distribution the extent of the assets.

The courts have much better powers of investigation and discovery than tribunals and if this exercise is being undertaken to ascertain the current level of spouse support, does it make any sense for the parties to go through the same loop again before a tribunal to sort out child support – particularly if legal aid is going to continue to be unavailable for tribunals?

The Government is concerned to make the gateway into any appeal system as narrow as possible. If there is to be any movement away from the existing formula, it must be by the substitution of, not accretions to, the existing formula.

It was confirmed that the criteria for the take-on of cases will be as now. Presumably this means that the courts will continue to be able to rubber-stamp agreements but they will still not be able to adjudicate on child support issues. This is a great disappointment. If the formula is so simple that it can be calculated in most cases by ready reckoner tables at Citizens Advice Bureaux and libraries, surely it is within the ability of the District Judge to do so.

The initial maintenance should be presumptive. It would be for the appellant to justify a departure from the assessment either upwards or downwards. It is presumably envisaged that, when tribunals make such decisions, they should be clearly recorded and with all reasons given, so that the parties know when the presumptive assessment is to be reverted to.

Why can the courts not do exactly the same thing? This gives the District Judge the opportunity to reduce the child support figure if the husband is, for example, taking on debts of the marriage.

If integration is the watchword – and it appears repeatedly in the Green Paper – let us see integration with the family court as well as the benefit system. If the sentiments expressed in the Green Paper about retaining contact between fathers and children are genuine, why is it that money cannot be made available to the existing services – for example the Court Welfare officers who are woefully underfunded, instead of the CSA.

Harman said that an extra £12m is being found for the CSA this year alone. If a fraction of the money, time and effort that has been and continues to be directed at the CSA could be directed towards the courts and its support services we would have a Rolls Royce system.

The tone of the Green Paper is positive and seems to be genuinely seeking further input and consultation on key areas. This reflects the personal and very active interest which Baroness Hollis has shown this initiative.

However, the devil is in the detail. The mischief of the last Child Support Act was that it was bare to the point of being skeletal. The guts were in the secondary legislation. This point was made by Archie Kirkwood MP, chairman of the Social Security Select Committee. His offer to scrutinise not only any proposed new Act, but also the secondary legislation in committee, prior to enactment was welcomed by Harman.

All parties seem conscious that this must be got right. Childrens' needs are firmly back at centre stage. The signs of progress are very welcome. Susan Deas is the chairman of SFLA's CSA Committee.