House of Commons - Social Security

Select Committee on Social Security Tenth Report

THE 1999 CHILD SUPPORT WHITE PAPER

PRIVATE CASES

54. The White Paper proposes that the Child Support Agency should come into play automatically only where a parent with care applies for Income Support or income-based Jobseeker's Allowance. Parents with court orders or other 'private' arrangements would be able to apply for the CSA to collect their child maintenance, but only at the new CSA rates[175]. The Government says that it would be unreasonable to expect the CSA to collect wildly different assessments for private cases when it is trying to establish a simple, speedy and reliable service for all its clients[176]. The CSA assessment would replace the court order or registered agreement if private payment arrangements broke down.[177] These proposals would not apply to existing court orders or registered agreements since the Government proposes that they should be available only after the reforms come into effect.[178]

55. The White Paper proposes that CSA collection and assessment services should be available in such non-benefit or 'private' cases only after a court order has been in place for at least a year.[179] There would be a requirement for parents who wished to transfer to a child support assessment to give at least two months' notice in order to allow parents and their lawyers time to renegotiate new voluntary agreements if appropriate.[180]

56. The Government believes that these proposals will encourage parents, lawyers and the Courts to come to child maintenance arrangements "in the shadow of the CSA."[181] Since either parent could turn to the CSA in future, it would therefore be sensible to determine child maintenance broadly in line with CSA assessment rates with the courts remaining free, as at present, to determine spousal maintenance, property and pension settlements for the couple concerned.[182] Mr Nicholas Mostyn QC for the Family Law Bar Association suggested that there was a "failure of logic" in this proposal,[183] which Mr James Pirrie of the Solicitors Family Law Association described as "the CSA tail wagging a much larger dog."[184]

57. Mr Nicholas Mostyn QC for the Family Law Bar Association argued that "[the] ability to reach a sensitive personal compromise of the financial issues dividing the parties will be severely undermined if either party is afforded the right to overthrow the child maintenance settlement and to seek a full CSA assessment after only 14 months."[185] Mr Mostyn foresaw an increase in litigation (much of it funded by legal aid) and criticised the imposition of the CSA formula on non-benefit cases as "statist nannying."[186] Mr Watson-Lee of The Law Society told us that the proposal to allow recourse to the CSA even where a court order had been in force would "drive a coach and horses through fair settlements."[187]

58. Mr James Pirrie of the Solicitors Family Law Association submitted the wording of a draft Clause intended to exclude the CSA from jurisdiction in an 'independent' case.[188] Mr Pirrie described his solution as "blindingly obvious"[189] because the courts worked as a self-regulating system to ensure that agreements in cases where a parent with care was likely to end up claiming benefit would be designed with the CSA formula in mind. Mr Pirrie argued that "the CSA should not impose itself where the court is dealing with the case anyway, unless it is to protect the taxpayer."[190]

59. Baroness Hollis told us that there was "plenty of elasticity in the system"[191] to cope with the objections raised by Mr Pirrie. She described the court-based system of child maintenance that preceded the introduction of the CSA as a "lottery."[192] Mr Andy Farquarson of NACSA did not accept that one of the great failings of the court system was inconsistency: "We believe that inconsistency is inevitable because the issues are complex. Every family has different circumstances."[193] NACSA advocated a discretionary system based upon mediation and administered by genuinely independent tribunals or a new unitary family court.[194]

60. Professor Gwynn Davis told us that there would effectively be a twotier system in operation, one tier which was effectively private and negotiated (where it would be prudent to shadow Agency child maintenance requirements to a degree just in case the private arrangement broke down and the CSA was called upon) and a second tier comprising benefit claimants where the CSA imposed a simple system of child maintenance payable in respect of those cases.[195]

61. We have reservations about the wisdom of allowing unlimited access to the CSA formula in all cases since the qualities of simplicity and rough justice, which may be necessary and appropriate for dealing with circumstances where the parent with care has had to resort to seeking benefit from the taxpayer, may not cope adequately with more complicated circumstances in which a private arrangement has been reached and where the taxpayer's interests are not involved. We are concerned that the CSA formula may be invoked to overturn settlements agreed to in court. It would be preferable if settlements reached in court paid attention to the CSA formula from the outset. We recommend that a statutory duty should be placed on the courts to take account of the CSA formula as a starting point in deciding child maintenance.

62. We recommend that the proposed right of access for 'private' non-benefit cases to the CSA after an agreement has been in force for a year should not be brought into force until the Child Support Agency has had time to demonstrate its effectiveness in handling the new formula.

63. We recommend that further research be carried out into the extent to which the interests of the children concerned would be adversely affected by allowing parties to 'private' agreements to have recourse to the rough justice of the new child support formula, and that the results of that research should be published before Parliament is asked to approve any proposal to allow parties to apply for a CSA assessment to replace a court order or registered agreement.

175 Cm 4349, Chapter Eight page 55 para 23. Back

176 Cm 4349, Chapter Eight page 55 para 23. Back

177 Cm 4349, Chapter Eight page 55 para 23. Back

178 Cm 4349, Chapter Eight page 55 para 24. Back

179 Cm 4349, Chapter Eight page 55 para 24. Back

180 Cm 4349, Chapter Eight page 55 para 24, Q. 498. Back

181 Cm 4349, Chapter Eight page 55 para 25. Back

182 Cm 4349, Chapter Eight page 55 para 25. Back

183 Ev p 62 para 8.6. Back

184 Q. 222. Back

185 Ev p 62 para 8.8. Back

186 Ev p 62 para 8.8 Back