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Standing Committee Debates
Child Support, Pensions and Social Security Bill

Child Support, Pensions and Social Security Bill

Standing Committee F

Thursday 27 January 2000

(Afternoon)

[Sir David Madel in the Chair]

Child Support, Pensions and Social Security Bill

Clause 2

Applications under section 4 of theChild Support Act 1991

Amendment proposed [this day]: No. 60, in page 3, line 3, leave out subsection (2) and insert--

    '(2) For paragraph (a) there shall be substituted--

    (a) Subject to subsection (13) below, there is in force a written maintenance agreement or a maintenance order, in respect of that child or those children and the person who is, at that time, the absent parent; or'.

2.30 pm

Question again proposed, That the amendment be made.

The Chairman: I remind the Committee that with this we are taking the following amendments: No. 71, in page 3, line 3, leave out subsections (2) and (3) and insert--

    '(2) In paragraph (a) the words "made before 5th April 1993" shall be omitted.'.

No. 87, in page 3, line 3, leave out subsections (2) and (3) and insert--

    '(2) In paragraph (a) omit the words from "agreement" to "in" and insert the words "or maintenance order made at any time.".'

No. 97, in page 3, line 3, leave out subsection (2).

No. 98, in page 3 line 6, leave out from beginning to end of line 9 and insert--

    '(aa) there is in force an order for periodical payments to the child made under section 23(1)(d) of the Matrimonial Causes Act 1973 or paragraph 1(2)(a) or (b) of Schedule 1 to the Children Act 1989 and--

    (i) the Secretary of State does not have jurisdiction to make a maintenance calculation under the provisions of section 6 of the 1991 Act as amended, and

    (ii) that simultaneously with the order the court makes an order under section 23(1)(a), (b), (spousal maintenance orders etc) or (c), or section 24 of the Matrimonial Causes Act 1973 or an order under paragraph 1(2)(c), (d) or (e) of Schedule 1 to the Children Act 1989 (lump sum payments or transfer of property orders etc), or the order is a variation of an order orginally made when one or more of such orders were also made'.

No. 59, in page 3, line 8, leave out 'one year' and insert 'six months'.

No. 61, in page 3, line 9, at end add--

    '(4) In section 4 of the 1991 Act (child support maintenance), there shall be inserted subsection (13) as follows--

    "(a) Where a written maintenance agreement is declared by the Secretary of State following an application made to him by the parent with care to be an improper agreement, subsection (10) shall not apply to that agreement.

    (b) The Secretary of State may by regulations make provision for the determination by him of applications for a declaration that a written maintenance agreement is an improper agreement on the grounds that such agreement was made following duress or undue influence.

    y(c) Such regulations as are mentioned in paragraph (b) above shall include the manner in which applications are to be made, the manner in which the absent parent may make representations as to the application and the criteria by which the Secretary of State will determine such applications.".'

No. 72, in page 3, line 9, at end add--

    '(4) In section 8 of the 1991 Act, there shall be inserted at the end of subsection (3)--"unless an application for financial relief between the parents of the child or children is before the Court".'.

    No. 88, in page 3, line 9, at end add--

    '(4) In section 8 of the 1991 Act, there shall be inserted at the end of subsection (3)--"unless an application for maintenance by the parent with care of the child or children is under consideration by the court.".'

New Clause 7

Role of the Courts

    '.--In section 8 of the 1991 Act (The role of the courts with respect to maintenance for children), for subsections (1) to (3) there shall be substituted--

    "(1) A court may exercise powers to make, vary or revive a periodical payments order in relation to a child in the circumstances set out in subsection (2) below.

    (2) The circumstances are as follows:

    (a) the Secretary of State does not have jurisdiction to make an order under section 6 of the 1991 Act; and

    (b) simultaneous with the periodical payments order, the court makes an order under section 23(1)(a), (b) (spousal maintenance orders etc) or (c), or section 24 of the Matrimonial Causes Act 1973 or an order under paragraph 1(2)(c), (d) or (e) of Schedule One of the Children Act 1989 (lump sum payments or transfer of property orders etc) or the order is a variation or revival of an order originally made when one or more of such orders were made, and

    (c) prior to making any such periodical payments order it has considered the maintenance calculation that exists or could exist under section 11(1) of the 1991 Act as amended, departing from the quantum of such calculation only where it is in the interests of the child the subject of the periodical payments application to do so; and

    (d) there is no regulation made by the Secretary of State providing for the termination of the operation of these provisions.

    (3) Where there is an order made under subsection (2) above, any calculation under this Act shall be discharged and the Secretary of State shall not exercise any of his powers under this Act.".'.

New Clause 8

Orders under the Matrimonial Causes Act 1973 or Children Act 1989

    'In section 1 of the 1991 Act (The duty to maintain), for subsection (2) there shall be substituted--

    "(2) For the purposes of this Act, a non-resident shall be taken to have met his responsibility to maintain any qualifying child of his:

    (a) by paying a calculation in accordance with the provision of this Act (as amended); or

    (b) by making payments in accordance with an order set out in subsection (2A) in the circumstances set out in subsection (2B).

    (2A) The Order referred to in subsection (2)(b) shall be an order for periodical payments to the child made under section 23(1)(d) of the Matrimonial Causes Act 1973 or paragraph 1(2)(a) or (b) of Schedule 1 to the Children Act 1989.

    (2B) The circumstances referred to in paragraph 2(b) are that--

    (a) the Secretary of State does not have jurisdiction to make a maintenance calculation under the provisions of section 6 of the 1991 Act as amended and

    (b) that simultaneously with the order the court makes an order under section 23(1)(a), (b), (c), or section 42 of the Matrimonial Causes Act 1973 or an order under paragraph 1(2)(c), (d) or (e) of Schedule 1 to the Children Act 1989 (lump sum payments or transfer of property orders etc), or the order is a variation of an order originally made when one or more of such orders were made.

    (2C) Where the court makes an order of the sort listed in subsection (2A) and the conditions of subsection (2B) are met, any calculation under this Act shall be discharged and the Secretary of state shall not exercise any of his powers under this Act.".'.

Mr. Eric Pickles (Brentwood and Ongar): As we finished the morning sitting, I had just started to make a few remarks. I shall not repeat them because I am sure that they are still fresh in everyone's memory. As we have got to know one another a little better, I am fully aware that there are some distinguished lawyers on the Labour Benches with expertise in these issues. I was rather hoping that notes would not be passed telling them not to contribute to the debate. We need their advice on these practical matters.

Mr. Edward Leigh (Gainsborough): It will cost us.

Mr. Pickles: My hon. Friend says that it will cost us, but under the new rules regarding the conduct of hon. Members, I should expect such information to be given free in a spirit of friendship.

Mr. Leigh: That is against trade union rules.

Mr. Pickles: My hon. Friend may be right, but we are all friends and colleagues here now.

Our concern is that this measure is a double whammy, to coin a phrase. First, it will run a coach and horses through the legal system of the United Kingdom with regard to private agreements, and secondly, it will reduce the CSA to complete chaos. It has no particular expertise in this field, and it will be unable to cope. Legitimate criticism was levelled at the CSA for trying to find easy cases. It ignored people who were paying nothing, but chased those who paid something to get them to increase the amount. Under clause 2, there will be a great temptation for the CSA to do exactly the same with private agreements.

Mr. Desmond Swayne (New Forest, West): I fear that it will not be just the CSA that will be reduced to chaos. The presence of the CSA service will provide warring partners, prior to a divorce settlement, with incentives not to agree. That may reduce the court system to chaos, as more litigation will be required to deal with the original settlement.

Mr. Pickles: My hon. Friend is right. Perhaps it is an act of self delusion on my part, but I have come to regard myself as something of a silver-tongued orator. It is clear that administrative convenience is what matters most to the Government. If they find a means of ensuring that the great bureaucracy of new Labour will not be inconvenienced in any way, they tend to look at it more favourably. My hon. Friend the Member for New Forest, West (Mr. Swayne) is absolutely right about private agreements, but the CSA may save on paperclips, elastic bands, and so on. It is points such as that that we must learn to make with this new Administration.

Before the end of this morning's sitting, I was about to read from the White Paper, which states:

    "We believe that these proposals will encourage parents, lawyers and the courts to come to child maintenance arrangements in the shadow of the CSA."

No doubt, the person who drafted that--be it a politician, the Prime Minister or an official--was recalling a happy childhood, sitting in a history lesson and thinking about the Tower of London casting a shadow over those who had committed treason. It is apposite that politicians on their way to see the king in Tudor times had to go past the Tower to get to Greenwich. If they stepped out of line, the law would clobber them. I suppose that that is what the Government mean by the expression

    "the shadow of the CSA."

It is a bit like saying that all celebrations should be in the shadow of the millennium dome--I know that my hon. Friend the Member for Bromsgrove (Miss Kirkbride) has strong views about the dome. That is just as daft. The shadow of the millennium dome may be all right for the glitterati of new Labour, but it is not good for ordinary people, as the noble Lord Falconer contends.

A shadow is being cast over the English legal system with regard to people on benefit. Taxpayers have a legitimate interest to ensure that they are not paying for the obligations of others. The edict that has been proclaimed is that simple is modern, which equals good, whereas complex involves forces of conservatism, which equals bad.

Our amendments seek to achieve some justice. From listening to those colleagues who are distinguished lawyers, and from reading the evidence, it is clear that the existing system of court settlements takes the CSA's calculations into consideration. People have a clear idea of what individual maintenance should be. Concerns were expressed in the Select Committee that the process would swamp the system. I do not intend to read out the whole recommendation, but I shall summarise what was said in paragraphs 60 to 63 on page xxiv. The Committee said that it had severe reservations about the idea of unlimited access to the CSA and felt that, in some cases, there would be more than an element of

    "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."

It continued:

    "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."

I agree. Labour Members seem to forget that we, too, want a simplified system, but that system should be tempered with justice. The report mentions reconsidering those agreements within as short a time as a year. It then states:

    "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 formula".

We have heard much from Baroness Hollis of Heigham. She gave evidence to the Select Committee, and hon. Members from both sides have competed with one another to quote her. However, she went a stage too far when she described recourse to the courts as a lottery. That might be a fashionable view, but it is not one that I hold. To justify that view, the right hon. Baroness cites the inconsistency of the justice system, saying that it is not always uniform. Again, we see new Labour's bias towards conformity and administrative convenience. It argues, "We do not have a nice pigeon hole for this, so it should not exist. Everything should run in straight lines. Let's apply the formula, because the formula is better." It may be better for administrative convenience, but it is not necessarily better for the individual.

It is only natural that the justice system should throw up inconsistencies, because people and circumstances are not uniform. A system devised to move various resources from one parent to another must not only be just; it must also be equitable. The amendment would ensure such equity. When seeking justice, it is obviously sensible to encourage parties to arrive at their own solutions. People will know that the shadow of the CSA is hanging over them and will become involved if they cannot reach agreement. When relationships break down, people have a number of responsibilities, the most important of which is the children. Surely, with the great panoply of resources available to them, the courts should be able to divide the assets in the best interests of the children. It is sensible that the process should allow the courts to take care of child maintenance.

The White Paper is clear about that. At page 55, paragraph 25, it states:

    "The courts would still be free, as now, to determine spousal maintenance, property and pension settlements".

The courts may take note of those three factors, but the fourth and most important missing element is the maintenance of the children. We have often quoted the words of Mr. Nicholas Mostyn QC. One phrase of his, cited at page 62, paragraph 8(2), has been quoted so often that we do not need to read it; it is already in our minds. He said that voluntary agreements are

    "a cornerstone of existing divorce law"

Do we really want to knock away a cornerstone? Clause 2 unamended would do precisely that. It makes more sense to allow people to reach a decision; the CSA should not be invoked unless agreement is impossible to achieve either voluntarily or through the courts.

2.45 pm

 
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