Memorandum submitted by Families Need
Fathers (CS 32)
SUMMARY
Families Need Fathers has as its guiding principle
the belief that children benefit from the care and commitment
of shared parenting. We fully support the Government in its assertion
that all children have the right to emotional and financial support
from both parents.
It is in this context that our concerns with
the proposals in the White Paper should be viewed. We concentrate
on the barriers to shared parenting which will result directly
from the White Paper—the issues of shared care, Child Benefit
and "parent with care" income are central to our concerns
for caring, involved, and sustainable parenting.
It is our belief that the White Paper proposals
in their current form will discourage shared parenting and result
in a greater loss of contact between children and their non-resident
parents (usually their fathers).
Our evidence to this Committee lists ten areas
of concern. Of these, the areas most likely to affect the operational
success of the new system are undoubtedly those which deal with
shared care. In our view, the proposals on shared care contained
within the White Paper will, unless modified, ensure that child
support remains a controversial issue for many years to come.
We predict that the sense of grievance thus caused will affect
compliance to a far greater degree than is anticipated by the
Government. This prospect, we suggest, is entirely avoidable.
The adoption of a fair system of child support,
based on the reality of shared care, is attainable and uncomplicated
in its application. Future co-operation and compliance may well
depend upon it.
Families Need Fathers would very much like to
see child support as a contentious issue become a thing of the
past. We believe that all children have the right to financial
support from both parents. But we regret that there is no comparable
right to contact with the children.
Founded in 1974, Families Need Fathers is a
registered charity which provides information and support to divorced
and separated parents of either sex, married or unmarried, who
face problems maintaining contact with their children.
1. Shared Care: the proposed scheme
is set to financially penalise the most responsible and caring
fathers, effectively preventing them from sharing the upbringing
of their children.
It is generally recognised[5]
to be in the best interests of the child that s/he continues to
live with both parents on a regular basis. This is known as "shared
care".
The Government proposes to reduce child support
payments by 1/7th for each night of care provided by the "non-resident
parent" (NRP). This proposal means that if parents care equally
for their children (50/50) the "NRP" would still pay
the "parent with care" (PWC) up to 12.5 per cent of
net income, even if the other parent earned more (see Case Study
2).
In shared care cases[6],
both parents are at times the "NRP" and the "PWC",
yet the Government plans to assess only one parent for child support.
A 1/7th deduction per night of shared care[7]
is necessary because the PWC does not have care of the child and
is therefore not entitled to child support. In addition, however,
the PWC must be assessed at 15 per cent of her income to contribute
to the costs the NRP has when the child is with him. This ensures
that child support follows the child and is applied equally whichever
parent is providing care for the child.
Assessing parents who share care of their children
at 15 per cent of each of their net incomes (for one child) is
therefore a fair, symmetrical, simple and transparent way to deal
with shared care. It provides a just outcome and recognises the
true cost of shared parenting. Proposals put forward by the Government
do not do this because they ignore the parenting costs of the
"non-resident parent" when he has care of the child.
Allocation of Child Benefit compounds the discrimination
faced by NRPs who share care (see page 4). It ensures that all
money payable in support of children flows only to one parent,
irrespective of who is actually caring for the child. Case Studies
1 and 4 illustrate this point graphically.
The proposed "banding" [8]
will further penalise NRPs who share care. This is unnecessary
and is actually more complicated than calculating shared care
on a proportional basis (as is currently done by the CSA).
There are many countries which operate a fair
"shared care" system.[9]
As the White Paper proposals stand, the UK will not be one of
them.
(i) Reducing child support maintenance by
only 1/7th for each night that the NRP cares for the child discriminates
against non-resident parents. While it recognises that money is
not due to the PWC when the child is not actually in her household
(hence the 1/7th deduction), it does not recognise the cost to
the NRP (who is still paying 100 per cent of the cost for the
child when s/he is with him). This is not a reciprocal arrangement.
(ii) Where "money follows the child"
the NRP could expect to receive 15 per cent of the PWC's income
when the child is in his household. This would be the PWC's contribution
to the cost incurred when the child is with the NRP—just
as when the PWC has care she receives 15 per cent of the father's
income.
(iii) As illustrated in our Case Studies,
the first night of care carries fixed costs (e.g. housing) and
subsequent nights are less expensive. NRPs who have even one night
of shared care per week incur these costs and should be entitled
to child support from the other parent on a symmetrical basis.
(iv) If both parents were assessed at 15
per cent of their income, the difference between the two assessments
would be the amount payable. This makes allowances for the fact
that women tend to earn less than men. It also applies only to
"private" cases—benefits shared care cases being
exempt from the £5 minimum payment. As such it is entirely
fundable from fees charged by the CSA.
2. Child Benefit: for cases of shared
care the Government's proposal to continue awarding Child Benefit
to only one parent will severely penalise the poorest non-resident
parents.
The Government proposes that in cases of equal
shared care—where parents share care of their child 50/50—Child
Benefit will nominally be split and deducted from the payments
made by the NRP to the PWC. This is an important conceptual step
forward in supporting shared parenting.
The proposal, however, fails to apply the logic
consistently. For those with less than exactly equal shared care,
Child Benefit will continue to be paid to only one parent—even
when the child is not with that parent for nearly half the week.
This will affect all NRPs who care for their
children.
For a low income NRP, the failure to award Child
Benefit in proportion to the number of nights his children actually
spend with him per week is critical, if not prohibitive (see Case
Studies 3 and 5).
The awarding of Child Benefit irrespective of
whether the child is resident in the household penalises children
in shared care arrangements. The effect (particularly in cases
such as Case Study 6, a benefits case) is to condemn children
to entirely avoidable poverty when they spend time with their
NRP.
In shared care cases Child Benefit must be divided
between the parents to reflect the actual nights the child spends
in each household. Child Benefit, like child support, must "follow
the child". The application of this is straightforward and
applies only to shared care.
(i) Where both parents are on benefits, the
award of Child Benefit solely to the mother leaves the father
significantly worse off when caring for his children. While she
receives Government support, he does not.
(ii) NRPs will get no help from the Government
when they care for their children, even for 3 nights per week—no
Child Benefit, no child support for when the child is staying
with him, no childcare tax credit. This leaves the children financially
deprived when they stay with the NRP and works against the White
Paper's principle that children have the right to emotional support
from both parents. It illustrates the failure of the proposed
system to apply the logic equally and symmetrically to both parents.
(iii) In cases of shared care both parents
are at different times "NRP" and "PWC" and
must be treated accordingly. The money must follow the child.
(iv) The inclusion of working families tax
credit (WFTC) and childcare tax credit further widens the gulf
between "PWC" or "NRP" (see Case Study 4).
3. Parent with Care Income: under
no circumstances will the income of the PWC be taken into account
in the Government's proposals.
The Government proposes that there should be
no circumstances in which the income of the PWC is taken into
account. The percentage payable by NRPs is said to represent half
of what it costs to support a child. When the child is with the
PWC she contributes her half and therefore (it has been argued)
need not have her income assessed at all.
Ignoring the income of the PWC works acceptably
where she has care of the child 100 per cent of the time. This
will account for around 70 per cent of current CSA cases.
The problems begin, and are very serious, when
there is shared care. The NRP pays the PWC when he does not look
after the child. The PWC, however, never pays—even when
she does not look after the child. The PWC also receives additional
support—in the form of Child Benefit—irrespective
of whether the child is actually in her household. The NRP does
not receive Child Benefit even when the child is in his household
(Case Study 1 demonstrates the effect clearly). All money paid
for the child is flowing in the direction of the PWC, even when
the child spends nearly half the week with the "NRP".
Government proposals mean that a PWC earning
£500 per week would still receive 15 per cent from an NRP
earning £250 per week, even if both shared the child's care
50/50 (see Case Study 2).
FNF proposes that in shared care cases the income
of the PWC should be taken into account in the same way as the
income of the NRP. This achieves an equal and symmetrical system
of child support which recognises that in shared care cases both
parents are at separate times NRP and PWC. It allows the money
to follow the child. It applies the same principles to both parents,
reciprocally.
(i) Ignoring PWC income for non shared care
cases is justifiable because the percentage rate is set at one
parent's sole contribution to the cost of the child (on the assumption
that the other parent contributes when they are caring for the
child). This assumes that NRPs do not share care of children and
are therefore not contributing anything in addition to the child
support paid.
(ii) Where there is shared care, however,
both parents contribute when they have care of the child. But
only the NRP contributes when he does not have care of the child
(see Case Study 1).
(iii) Not applying the percentage to the
"PWC" when she is in fact the NRP in a shared care case
penalises one parent unjustifiably. It allows the parent labelled
"PWC" to avoid contributing to the cost of the child
when s/he is with the other parent. This is neither a symmetrical
system nor a reciprocal one.
4. Contact costs: proposals to treat
NRP's contact costs as "exceptional" are not in the
best interests of the child.
The Government's proposal to take into account
the costs directly incurred in maintaining contact with the child
are welcomed. That this will be done at the initial assessment
is also welcomed.
It remains unclear, however, whether all contact
costs are seen as "exceptional" or whether only "exceptional
costs of contact" will be considered in adjusting the child
support assessment.
Many NRPs spend considerable amounts of money
maintaining contact. The evidence within FNF is that the costs
of being an NRP can be as great as the costs of being a PWC. Costs
of the child can often involve long distance travel and overnight
accommodation, as well as the entertainment which is expected,
particularly for weekend contact. The emotional support and practical
commit-ment needs to be recognised when setting the level of child
support payments.
The Government proposes to ignore contact costs
below set thresholds (£10 per week for low earners, £15
for those earning over £200). FNF submits that these amounts
should be scrapped. Where contact is taking place it is money
that will be spent on the child directly. Expecting low earning
NRPs to pay £10 per week on top of their regular child support
is unrealistic.
(i) FNF believes that no child should be
denied the right to contact because one parent's "child support"
payments are so prohibitive as to make contact unaffordable. We
would like to see travel costs and overnight accommodation recognised
in full, and made explicit within the "departures" system.
(ii) FNF has many members whose contact costs
have not been taken into account by the CSA and who consequently
cannot afford to see their children as often as before (if at
all). Children are often moved many miles away from their NRP—who
is, nevertheless, expected to meet the travel costs of contact.
(iii) Child support is about emotional as
well as financial support.
5. Maximum payments: when child
support is not child support. The wrong moral and economic message.
The Government does not propose to set a maximum
amount of child support payable. This means that the controversial
issue of the spousal maintenance and the "carer's allowance"
will continue.
While it is the right of all children to be
supported by their parents, failure to cap child support payments
will mean that money intended for children will be used to support
the PWC.
Failure to impose a maximum payment or taper
for high earners will undermine entirely the argument that "the
money is for the child". This will affect the credibility
of the new system and hinder compliance.
Virtually all other countries' child support
systems recognise the need to have measures in place for high
earners.
The absence of a maximum payment has the perverse
effect of "serial mother-hood" becoming financially
advantageous as there is no limit on the number of fathers against
whom claims can be made. Payment for three children from three
fathers produces a total of 45 per cent of net income. From one
father this would be 25 per cent.
(i) FNF proposes that child support payments
are either tapered for higher earners or capped at, for example,
twice the average income. This would address the issue of spousal
maintenance being paid in the guise of child support.
(ii) While it is true to say that spending
on children increases in proportion to income, it is by no means
established that this is a linear relationship. There is a limit
to how much can "reasonably" be spent on the child,
and a taper or cap would reflect this.
(iii) FNF believes that the way for children
to share in the wealth of their parents is by encouraging shared
parenting (see Shared Care, above).
(iv) The likely effect of not imposing a
cap or a taper is a "brain drain" of high earners. The
CSA would have little hope of reciprocal enforcement in other
jurisdictions if it is based upon a dubious legal foundation.
6. £5 minimum payment: those
on the lowest incomes will be expected to survive on £5.00
per week less than "subsistence" levels.
The proposed deduction of £5 from all NRPs
on benefits (except those with shared care) is unnecessarily harsh.
A deduction from an allowance intended for personal
support only will inevitably create hardship.
The £5 deduction will penalise children
in second families in order to make payments to those in the "first".
The deduction from single person's benefit will
inevitably prevent some NRPs from maintaining contact with their
children. The £5 can make the difference between being able
to afford to visit the child and not being able to do so.
(i) Deducting £5 from NRPs with children
in their second family will create a poverty trap for second families
and exacerbate the problems facing children of NRPs, carrying
child poverty into the next millennium.
(ii) While the Government is rightly concerned
that all parents should be seen to be supporting their children,
there are times when emotional support is more valuable to the
child than £5 paid in financial support (which may deprive
a child of the little contact s/he has with the NRP).
(iii) FNF is aware of cases where contact
which has been ordered "in the best interests of the child"
cannot be continued because of the mandatory deduction in child
support from those on benefits.
7. Second families: "First
Children First" will disadvantage significant numbers of
"second" and stepchildren.
The Government's proposal to reduce the basic
percentage rates (15/20/25 per cent ) to take account of "second"
and stepchildren is welcomed.
The proposed method of calculating the reduced
percentage, however, favours `first' children. There appears to
be little moral or practical justification for this.
To ensure equality amongst all children of the
family the Government must adopt its initial proposal as outlined
in the Green Paper (1)—namely that the percentages should
be divided by the number of children in the first and second families.
In contrast, the White Paper proposal is confusing to parents
and discriminates against `second' and stepchildren.
To allow a reduction of just 2.25 per cent for
one child in the second family will almost certainly continue
the hardship currently experienced by second families.
(i) FNF would like to see each child, whether
first, second or step, treated equally in legislation.
(ii) Each child of the family must therefore
be accorded equal amounts of support dedicated to that child.
(iii) Children in "second" families
should not be discriminated against in a bid to support children
in "first" families.[10]
8. Benefit recovery cases: the proposed
scheme will continue violation of existing statute.
The liability of certain individuals to maintain
others for Social Security purposes has been clearly defined and
substantially unaltered since 1948.
That liability to maintain extends to one's
child(ren) and to one's spouse. It does not extend to any former
spouse or partner.
Where parents are divorced or never married,
new Government proposals will lead to sums recovered in excess
of those spent (and therefore legitimately recoverable) by the
Government in respect of the child(ren) concerned.
Where amounts in excess of liability are demanded,
those excesses, however achieved, will result in abatement of
the other parent's benefit payment and thus direct gain to the
Treasury—gain to which there is no lawful entitlement.
(i) Section 42 of the National Assistance
Act 1948 stated that: (a) a man shall be liable to maintain his
wife and his children, and (b) a woman shall be liable to maintain
her husband and her children. A woman's children included her
illegitimate children and a man's children included any children
of whom he had been adjudged the putative father. Various re-enactments
up to and including the Social Security Administration Act 1992
have done nothing to alter this basic "parental liability"
formulation.
(ii) Regulations laid before Parliament during
the two day Gulf War debate of 1990 (now manifested in Section
107 of the Social Security Administration Act 1992), sought to
circumvent the settled tenet of "parental liability"
by giving the DSS, for the first time ever, the power to recover
from (generally) fathers the expenses of personal Income Support
for people whom they were not liable to maintain. Such a contradiction
is self-evidently untenable, but it laid the foundation for an
"Interim measure" of unfettered benefit recovery, pending
wholesale implementation via the "carer" and "additional"
elements within the Child Support Act of 1991.
(iii) While Ministers claim to be scrapping
the "carer" and "additional" elements, it
is in reality only the terminology which will have been removed.
The "carer" and "additional" elements will
remain in all but name.
(iv) The Government must realise that personal
liability is not open-ended. The State has a role to play in the
carefully structured division of responsibility for benefit expenses
between itself and the individual. Child Support cannot continue
as a camouflage for lone parent personal benefit recovery.
(v) Demands for Child Support must be capped
at the actual amount paid in respect of the child(ren).[11]
Additional and direct support of the child is a personal choice
and opportunity, which any Government with the genuine interest
of children at heart would look upon favourably.
9. Tribunals: the role of the Tribunal
will be crucial to the just operation of any new system of child
support, particularly one so lacking in discretionary powers.
The Government is proposing to maintain the
current appeals system, but to limit the criteria under which
an appeal will be possible. Recourse to a Tribunal is expected
by the Government to be "rare".
The new proposals suggest that payments must
be being made regularly and at a "safe rate" for appeals
to be considered, even within the narrowed criteria allowed for
appeal. FNF believes that there is no case for using denial of
access to appeals as an enforcement mechanism.
Errors in assessments will be dealt with by
the case officer and corrected where appropriate. This is welcomed
but should not replace the need for an effective appeals procedure
where disputes continue.
No system of child support can expect to deal
with each and every individual's needs fairly. A discretionary
element over and above that allowed for in the re-vamped "departures"
is vital to counteract a rigid formula (which will inevitably
create severe injustices and anomalies). The Tribunal Service
must be fully resourced and independent in its ability to cope
with such cases.
Right of appeal should continue for initial
assessments, change of circumstances and periodic case checks,
as well as to challenge "exceptional circumstances"
decisions.
The role of the Independent Case Examiner is
not referred to in the White Paper. FNF would strongly support
a continued role for ICE.
(i) Reducing access to an independent appeals
system is risky and increases the likelihood of injustice going
unchallenged and unaddressed. Non-compliance is likely to be the
result.
(ii) Assessments which are seen to have been
reviewed thoroughly and independently have a greater chance of
being complied with.
(iii) When appeals are initiated, personal
information is disclosed to the other parent. Currently this is
reciprocal, but, until shared care proposals are modified, only
NRP's income and personal details will be collected in future.
Protection of NRP's details will be crucial to their confidence
in the system. Appeals lodged by PWCs who are simply curious as
to the income of the NRP must be avoided.
10. The process: operational processes
will need careful analysis and scrutiny.
The Government proposes to convert existing
cases to the new system within five years of new assessments being
made, and at rates of change of £2.50, £5.00 and £10.00
per week to amounts payable. The lower limit is welcomed. The
upper limit of £10.00 per week is likely to cause hardship,
particularly for second families. Appeal on this point (where
hardship is demonstrable) would go some way to addressing this
issue.
Concern has been expressed by FNF members that
there is no "safety net". NRPs, particularly those with
second families who may have high housing costs, will suddenly
find that these unavoidable and largely unalterable costs are
"disregarded". This may leave them unable to meet the
housing costs of their second families. It is hoped that, in the
interests of safeguarding parents and children, demonstrable hardship
will not be excluded from the appeals criteria.
It is unclear how the Government intends to
prevent "cherry picking" between the old and new systems.
A means must be found to ensure that "private case"
PWCs do not leave the existing system only to re-apply several
months later under a favourable new system.
It is unclear whether arrears from the old system
will be carried forward into the new, and if so, at what rate
they will be payable. As no account is taken of housing costs
and other commitments under the proposals, payment of arrears
on top of a percentage rate will need to operate under the safeguard
of appeal.
The proposed 5 per cent of assessment required
to trigger a change of circumstances is very high. An NRP earning
£15,000 gross would have to live on £10.80 per week
less before the assessment was adjusted for new circumstances.
This is a sizeable amount of disposable income.
The Government has proposed a new "default
rate" to be set at the average assessment for the number
of children. This rate must take into account shared care and
second family if it is not to cause severe hardship.
It is in our view appropriate that the legal
beneficiary of child support is the child, rather than the PWC.
Several European countries[12]
adopt this option. The considerable conceptual advantage is that
it makes it clear that child support is for the child. Practically,
payment will still be made for younger children via an adult in
many cases—typically the PWC.
(i) Any new legislation will benefit from
public scrutiny and transparency. It is hoped that a draft Bill
will be published for discussion with stakeholder groups and the
Social Security Select Committee. Experience gained from the last
Child Support Act suggests that hasty legislation is unlikely
to produce a solid, workable system.
September 1999
5 For summaries of research see: Popenoe D, Life Without
Father (Free Press 1996); Braver S, Divorced Dads (Tarcher/Putnam,
1998); see also Burgess A, A Complete Parent (IPPR 1998). Back
6
Shared care is one night per week (52 per annum) of care by the
NRP up to equal shared care of 3.5 nights per week (182 per annum). Back
7
At least 25 per cent of the current CSA caseload. Back
8
Banding means that care is set at 1, 2, or 3 nights per week.
Currently it can be set at actual amounts (e.g. 2.9 nights) and
the assessment is reduced accordingly. Back
9
e.g. Australia, New Zealand, Norway and at least 14 states in
the USA. Back
10
e.g. if there are two children in the first family they receive
20 per cent of the NRPs income. If there is one in the first and
one inthe second, that 20 per cent should be divided equally,
with the "first" child receiving 10 per cent and the
"second" or stepchild receiving the same amount. Back
11
Actual amounts paid in respect of child(ren) can usuallybe calculated
by the simple formula: I + F-C = Payment in respect of the child(ren)
I = Income Support Allowance for the child(ren). F = Family Premium.
C = Child Benefit. Back
12
Austria, Belgium, Denmark, Finland, Germany, Norway, Sweden. Back
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