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Session 2001- 02
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Delegated Legislation Committee Debates

Draft Child Support Appeals (Jurisdiction of Courts) Order 2002 and Draft Child Support (Temporary Compensation Payment Scheme) (Modification and Amendment) Regulations 2002

Eighth Standing Committee on Delegated Legislation

Tuesday 9 July 2002

[Mr. Roger Gale in the Chair]

Draft Child Support Appeals (Jurisdiction of Courts) Order 2002

4.30 pm

The Chairman: Before we commence, hon. Members who wish to do so may remove their jackets—those who have not already done so.

Mr. David Wilshire (Spelthorne): On a point of order, Mr Gale. Will you accept my apologies for pre-empting your statement?

The Chairman: That is not a point of order, but the apology is accepted.

Is it the wish of the Committee that the two orders be considered together?

Hon. Members: No.

The Chairman: Objection taken. Even if there is only one objection, the instruments must be taken separately.

4.31 pm

The Parliamentary Under-Secretary of State for Work and Pensions (Malcolm Wicks): I beg to move,

    That the Committee has considered the Child Support (Temporary Compensation Payment Scheme)(Modification and Amendment) Regulations 2002.

I welcome you to the Chair, Mr. Gale. It is a privilege to serve under your Chairmanship this afternoon. We have a set of regulations to debate and, later, a draft order to consider.

The first statutory instrument revises the temporary compensation payment scheme, or the deferred debt scheme as it is more familiarly known. The regulations modify section 27 of the Child Support, Pensions and Social Security Act 2000 and they amend regulation 3 of the Child Support (Temporary Compensation Payment Scheme) Regulations 2000.

Mr. Steve Webb (Northavon): I am slightly confused about the sequence in which we are considering the orders. The title read out by the Clerk is not the one to which the Minister is referring. I would like to clarify which measure is under consideration. I apologise if I have misunderstood the proceedings.

The Chairman: To clarify matters, the first debate will be about the Child Support Appeals (Jurisdiction of Courts) Order 2002.

Malcolm Wicks: Perhaps I should start again.

I beg to move,

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    That the Committee has considered the Draft Child Support Appeals (Jurisdiction of Courts) Order 2002.

The first matter that we are debating is a statutory instrument made by the Lord Chancellor. Its purpose is to divert child support appeals on the grounds of disputed parentage to a court instead of a tribunal and it mirrors existing provisions.

It may be helpful to the Committee for me to explain the background and purpose of the order. Section 20 of the Child Support Act 1991 provides for appeals against child support decisions to be determined by an appeal tribunal established under the Social Security Act 1998. The Child Support Appeals (Jurisdiction of Courts) Order 1993 is the statutory means by which an appeal on the grounds of disputed parentage against a maintenance assessment made under the current child support scheme is heard by a court instead of a tribunal. The 2002 order will have exactly the same effect for appeals on the same grounds made under the new child support scheme. It is a straightforward measure that transfers good practice from the current system to the new one.

Any person with a child support maintenance liability can dispute a maintenance assessment on the grounds that they are not the child's parent. Most people who do dispute that they are a child's parent do so before their liability is assessed. In such circumstances, the agency can offer to arrange for DNA tests to be taken in order to resolve the dispute.

In circumstances provided for under section 26 of the Child Support Act 1991, the agency can assume that the person named by the parent with care is the other parent. Those circumstances include those in which the person is registered as the parent on the child's birth certificate or if the person was married to the mother of the child at any time between the child's conception and birth.

The power to assume parentage allows the agency to assess the non-resident parent's liability. However, some parents do not dispute parentage until after their maintenance liability has been assessed. In those circumstances, if the dispute cannot be easily resolved by the agency, the person might wish to appeal against the maintenance assessment. The effect of the order is to route any such appeal to a court instead of to a tribunal. We do not know exactly how many appeals reach a court in that way, but numbers are small—probably fewer than 50 a year. Disputed parentage is a family issue. It is therefore right for the family courts to deal with it.

Historically, family courts have had responsibility for making declarations of parentage; consequently, they have built up a great deal of expertise in the area. In preparation for the new child support scheme, amendments have been made to the Child Support Act 1991 by the Child Support, Pensions and Social Security Act 2000. The new order will take account of those amendments, as well as constitutional changes. I refer in particular to the devolved Assemblies and Executives in Scotland and Northern Ireland. We aim to ensure that their provisions mirror the effect of the order. In making the new order, we are not changing policy but reflecting changes in child support

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legislation. I am satisfied that the order is compatible with the European convention on human rights and I commend it to the Committee.

4.36 pm

Mr. Tim Boswell (Daventry): May I echo the Minister in welcoming you to the Chair, Mr. Gale? I am sure that you will be a wise arbiter of our discussions on some complex matters. It is right that we should look into them properly although not, I hope, contentiously or without anything to say.

There was a horrible moment when the Minister started off on the wrong order, but he recovered himself. He then sought to explain the order that we are debating—the one about the courts. Although I thought initially that he was going to treat it in a peremptory way, he explained its overall remit. In addition, both the small explanatory note attached to the draft instrument and the fuller explanatory memorandum that I have obtained are helpful.

I should emphasise that there is no spirit of viciousness or cynicism in my seeking to consider the two measures separately. They are different, even if to the Minister—I have been one and I know what a tidy mind one has to have—they both cover same general subject. I note that the order is laid by the Lord Chancellor's Department. It is worth a moment of the Committee's time, and perhaps a response from the Minister, to observe that we now have—since the previous Conservative Government—a structure in which the Lord Chancellor's Department is represented in this House by a very competent Minister. I am slightly surprised that, as this is the Lord Chancellor's order, it is not that Minister who is defending the Department rather than the Under-Secretary. I say that in no sense of disrespect to the Under-Secretary, whom I have shadowed in different capacities and whose competence I respect. He might have noticed that I do not normally lead for our team on child support matters. Had my hon. Friend the Member for Hertsmere (Mr. Clappison) been able to be here, instead of having an important outside engagement, he would have brought distinguished a legal focus to the Committee. Sadly, he is not here and we shall have to do the best that we can.

This is a Lord Chancellor's order—it is about the conduct of the courts, albeit at the behest of the Department of Work and Pensions. We are not expert in the workings of the courts. There have been occasions in Standing Committees when Ministers from one Department have been fortified by Ministers from another Department. For example, we could have suggested that the Solicitor-General should attend on behalf of the Law Officers when there are questions of vires to consider. However, the regulations to which we shall turn later are solely the responsibility of the Under-Secretary's Department, so we will have to make do for now.

I do not want to labour the point, because there are matters of substance to deal with, but the context of our discussion, which need not continue for 90 minutes on each instrument, is the Government's record in introducing 13 statutory instruments for discussion in

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one week. The hon. Member for Northavon (Mr. Webb) and I have already done our turn this week in considering one statutory instrument. It is government by legislative carpet bombing, and it does not contribute to good order, but within the remit of your guidance, Mr. Gale, and the rules of delegated legislation Committees, I shall try to tease out the relevant points.

The legislation is about the courts, although it does not contain much law and is rather a matter of order. I have often said that I respect the structure of the Under-Secretary's Department, as well as his officials, so I am sure that he will have access to legal advice if he needs it during our proceedings. We should remember that the concept of child support, which had its origins in a bipartisan or multi-partisan approach more than 10 years ago during a Conservative Government, was conceived for one primary purpose; to secure adequate support for children, so that they could receive maintenance, which they were not always receiving or which they were not receiving consistently through the old structure of court orders. That consummation, although devoutly to be wished for, has not been attained, and it would be helpful if the Under-Secretary could say how far we have progressed.

The Under-Secretary could certainly help the Committee and the House on the whole recasting of the administrative structure and formula for child support because he will know that the previous Secretary of State, the right hon. Member for Edinburgh, Central (Mr. Darling), who has since moved on, made a statement to the House saying that the new arrangements, which were due to take effect from the beginning of the new financial year, would be postponed because he was not satisfied with the robustness of the computer system. The last thing we want is a horlicks of a new system. We want it to be effective.

When the Secretary of State made that announcement, I assumed that the new system, which was driven by the Child Support, Pensions and Social Security Act 2000—also the context of these statutory instruments—would have been up and running in a reasonable time. It is now almost four months since that statement and we have heard no further news on the new system, not even by way of interim report to the House. I hope that, without committing himself precisely, the Under-Secretary will say something about that. I have already asked him a question about liability for new cases, to which he responded on 21 May, but there are also important issues relating to the compensation scheme, in particular, whether cases will be dealt with under the old regime or the new. It would also be helpful if he would say when the new regime will be implemented, because it seems to be dead in the water.

On the workings of the present arrangements, including those in connection with paternity and reference to a court, I draw on my constituency experience and would be interested to know whether hon. Members have had similar experiences. Having been a Member of Parliament since the Child Support Act 1991 came into force, I have noticed some striking

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changes of tone in the casework under the scheme. Initially, most of the casework related to absent parents—usually but not always fathers—who could not wade through the mass of administrative failure that affected the initial parts of the scheme. The scheme has been patched and mended under various Administrations and provides an example of how difficult it is to get such things right, even with good intentions. To give credit where it is due, that effect is much diminished, and the number of people who cannot get the Child Support Agency to acknowledge letters that they have sent, with information that they have filed to make an assessment that they are ready to pay, is falling.

The emphasis is shifting towards securing adequate maintenance for the parent with care—usually but not exclusively the mother. However, the Committee will be aware, as will the Under-Secretary with his previous experience in social policy, that a minority of parents do their best to evade their responsibilities. We need not sling that accusation at all absent parents, because it is not the case, and we should not over-emphasise the numbers. None the less, there is a minority in the ''won't pay'' category, as far as that is possible. Those people can be cynical and remarkably resourceful in avoiding their responsibilities. Indeed, the previous Secretary of State emphasised that one of the main purposes driving his proposals for change was to ensure that staff spent less time in assessment of absent parents and more time chasing up payments from those parents. I think that the Committee would agree that that should be the case.

The overall objective is to get the right support to children. In that respect, as with the substance of the order, the Opposition have no problem with the new legislation. There is no ideological division over the order, but I should like to discuss those who evade their responsibilities.

One may observe that the first line of defence of those who evade their responsibilities is to pull out of employment. They can then claim that they have no income, which means that the assessment is scaled down. The second defence is to claim some miraculously under-remunerated self-employment, which nominally exists but does not produce any income, which is again reflected in the assessment. Their third defence, which forms the specific substance of the order, is to dispute paternity.

I do not suggest that such cases are typical, but the order is intended to cover extreme cases. The Minister said that disputes about paternity were resolved before assessments were made, but it may be that an absent parent is taken almost to the courtroom door before saying, ''Well, you may have given me an assessment, but it is not my child.'' A procedure would then be triggered to determine that.

In the spirit of consensus that I seek to display, I feel strongly—it was precedented in the earlier legislation and will be continued in the order—that such family law issues should be determined by the courts. I am not a lawyer, nor is the Under-Secretary, but we are

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perfectly happy for the courts to deal with them, and the explanatory notes say that the courts have the traditional responsibility and expertise for doing so. As the Minister said, DNA testing could involve some difficult legal concepts. If he doubted that before, today's news about IVF shows that the courts have a great deal of work to do.

In relation to DNA testing, I was surprised that the Minister could not be more specific about the number of cases remitted to the courts under existing arrangements, although I suppose that that will not change materially under the new arrangements unless there is a new fashion in trying to avoid payment. It would be fine if DNA testing was straightforward and if everything took place at one time, but I understand that there are significant delays—sometimes as long as two years. That, itself, is a deterrent for parents with care, especially if they are not in receipt of support during that time. Will the Minister clarify the circumstances under which a payment could be made by the agency even if paternity was still in dispute? If we suppose that they are not in receipt of support, or at least that their position was not certain within that two-year period, I am concerned that they would not know where they stood. They would have the responsibility of looking after the child but no firm basis on which to discharge it.

The second problem is the significant cost of DNA testing.


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