|Draft Child Support Appeals (Jurisdiction of Courts) Order 2002 and Draft Child Support (Temporary Compensation Payment Scheme) (Modification and Amendment) Regulations 2002
Mr. Boswell: I hope that I can assist my hon. Friend. My intervention may be less contentious than that of the Minister, but as I understand it, the courts have been doing this all along. My hon. Friend may have been misinformed. The tribunals have not been involved in this part of family law. The measures represent a change in the legal framework under which the courts take on the responsibility rather than their assumption of that responsibility for the first time. That is why I hope that the Minister will be able to give us the statistics on the incidence of such appeals.
Mr. Wilshire: I am grateful to my hon. Friend for that; it clears things up a bit for me. However, I am still worried. If the framework has changed, what about the decisions that were taken under the previous framework? Does it mean that previous rulings under that framework could now be held to be unsafe, because they were made in a less effective way? What research has been done into the reasonableness of previous decisions? Now that we are changing the framework, will those affected by rulings made during the past 11 years be able to claim that the decision was not as good as it should have been?
Malcolm Wicks: May I try to help the hon. Gentleman, if only by reading out again what I said in my opening speech? The Child Support Appeals (Jurisdiction of Courts) Order 1993 is the statutory means by which an appeal on the grounds of disputed parentage is heard by a court instead of a tribunal. That has been the situation since 1993. As we move towards a new child support reform framework, we are trying to update those provisions, so that such appeals will still be heard in courts and not in tribunals.
Mr. Wilshire: I am grateful for that; it helps to clear up some of my doubts.
The Minister touched on the circumstances under which people avail themselves of the appeals procedure, saying that sometimes such matters come to light after a maintenance order has been made. I am not suggesting that the Minister intended to imply this, but the fact that such eventualities are considered relevant could be perceived as supporting the assumption that some people make that the procedure is used as a tactic. The assumption is that people let things slide, then the maintenance order finally turns up and all other means of disputing it fail. We regularly hear about that sort of thing in our surgeries''if all else fails, why not try this?'' I do not suggest that the Minister meant it in those terms, but it could easily be perceived like that. Therefore, we should consider the circumstances under which this sort of appeal can arise.
There will clearly be occasions when a decision is made and is appealed against when the father has disputed parentage for many years but not in the public domain. The matter may come into some domain and there may be a previous ruling on a different issue from child support. What will be the status of previous rulings if the issue of parentage finally comes to court under this provision? Will the court take into account the fact that the matter has been thrashed out in the past, simply take the previous
Column Number: 13ruling as a precedent and decide that it is not worth reconsidering, or will someone who appeals under the provisions be entitled to a clean sheet? Will the appeal start with a blank sheet, irrespective of what has happened and what has been said about the family circumstances that are being considered? Will it be based on the facts introduced at the time rather than historical precedent?
Mr. Boswell: Would my hon. Friend like to consider the situation in which, despite the efforts of the court to determine parentage in good faith and without a DNA test, subsequent evidence comes to light that suggests that a child is not the child of the parent as attributed? My hon. Friend might invite the Minister to consider what would happen if the parentage were changed by the court. Will the Minister explain to the Committee what would happen to the maintenance in those circumstances?
Mr. Wilshire: My hon. Friend puts his point clearly, and I do not need to repeat it. I am sure that the Minister will respond to that point.
I return to the circumstances that are important when a case comes to an appeal. In addition to the sort of people who always dispute decisions, there will be those who feel forced into a dispute when they would rather not have got involved. How does the Minister respond to that point?
We regularly hear the complaint that maintenance assessments under child support legislation are ridiculously high. That is how it has been put to me, at least, and I do not know whether it is true because I have never been on the receiving end of an assessment. However, a situation sometimes develops whereby the CSA is approached for help because a couple are at war with each other. I am referring to the sort of situation that goes on for several years; relative calm may last within a short personal relationship, which finally erupts into disputes involving lawyers. The case eventually ends up with the CSA. Out of the blue, the father receives a maintenance order that he considers vastly excessive. Will the Minister consider whether the amount of maintenance being awarded may force people to use the provisions of the order in a way that should not happen?
The father concerned may be content to meet his financial obligations in a reasonable way, but all of a sudden he may be faced with a maintenance order that makes him feel that he is being taken to the cleaners. He may be put into a position of having to defend himself by saying, ''I have not used this fact in the past for the sake of the child, but I must defend myself, my new family and new wife. I must spill the beans.'' If the provisions are capable of compelling even one person to take that sort of action, I plead with the Minister to reconsider and review them. Ultimately, the only victim in such a dispute is the child.
Mr. Andrew Turner (Isle of Wight): Would my hon. Friend care to speculate as to whether the order, if implemented, would create a twin-track approach to challenging the determinations of the agency? Where an absent parent wished to challenge the quantum, he would have to go through the tribunal, but where he
Column Number: 14wished to challenge the paternity, he would have to go through the court. Would not the two be better combined in one tribunal or court?
Mr. Wilshire: I certainly should have thought so.
Mr. Boswell: I realise that we cannot have a triangular dialogue. However, I am sure that my hon. Friend's understanding is correct. Would he not also say, picking up the comment of my hon. Friend the Member for Isle of Wight (Mr. Turner), that having a double process also prolongs the agony for the parent who maintains the child?
Mr. Wilshire: I fear that that is so. In the end it could be that if there are two ways of going about it, the fact that there could be some dispute about parentage might become relevant at the tribunal. I could argue that, in such circumstances, I would be prepared, for the sake of peace and quiet, to accept a particular figure. Because of the circumstances, I would argue that the amount of maintenance ought to be reduced. If I had to argue that in two separate forums, I would be doubly upset.
I should like to hear the Minister's thoughts on something else.
Malcolm Wicks: May I just repeatthis is the third time that I have said itthat we are simply replicating, in terms of the family court, something that has happened ever since Parliament gave Government the powers to do it in 1993? However, the hon. Gentleman talks as though we are bringing in a new system. As for the amount of maintenance, I am happy to discuss that in an appropriate place, but it is not the matter before the Committee. I suspect that something is going on that has little to do with the order.
The Chairman: Order. I have been listening carefully. If the debate were out of order, I would be the first person to say so.
Mr. Wilshire: The Minister commented that the matter probably is not relevant to the Committee, which is why I was not going to pursue the question of maintenance in a tribunal. If the Minister believes that I am raising points purely to delay the Committee's proceedings, he is sadly wrong. I am capable of doing that on occasion and it has probably been your misfortune, Mr. Gale, to listen to some things that I have said that you wished you could rule out of order. However, for the avoidance of doubt, may I tell the Minister that I have never felt more strongly in my life about a personal issue than I do about this one? I am in no way deliberately delaying anybody. If the Minister finds the points that I am raising boring or irrelevant, I feel sorry for him, because these are deeply tragic, personal issues that all of us, irrespective of party, need to take seriously and to ventilate. I make no apology for delaying the Committee.
The next of the issues that I would ask the Minister to consider is the effect elsewhere of the court's rulings. There is a possibility of creating a precedent, because, as he may be aware, if a man knows at an early stage in the life of ''his child'' that that child is not his, and if it can be shown that he knows that it is not his, but he
Column Number: 15subsequentlyfor all practical purposesaccepts the financial obligations of bringing up that child, common law and divorce law state that that child is the child of that man for financial reasons. Under those circumstances, there could be a hearing before a judge in which under common law and divorce law it has long since been a fact that that man is to be treated as the child's father even though, biologically, he is not. The Government are now setting up another court of law to review such cases. If an appeal determines, once and for all, that the man is not the child's father, what will be the implications for common law and divorce law? Will not such a determination provide a statement of fact that the man is not technically responsible, but has, voluntarily and willingly, accepted that responsibility for several years?
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