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

[back to previous text]

The Chairman: Order. I have listened carefully to the hon. Gentleman and, hitherto, he has been in order. I understand that he is genuinely concerned about the issue, but in talking about the civil law, he strays outside the terms of the order before the Committee.

Mr. Wilshire: I appreciate that, Mr. Gale. I realised that I would fall foul of the rules sooner or later, but I have said all that I wish to say on the subject.

Mr. Hugo Swire (East Devon): I am nervous about crossing the Chairman, but does what you say—

The Chairman: Order. I did not say anything.

Mr. Wilshire: We could continue this discussion outside in the Corridor afterwards.

The Minister commented on the financial effects of the order and said that there would be no cost to the public or the Exchequer, but I very much doubt that, and it would be helpful if the Minister would respond to my concerns. If the framework has been changed, it is reasonable to assume that those who have the greatest expertise—the court—may uphold more appeals in future than were upheld under the tribunal framework. If that happens, fewer maintenance orders will be made. However, if I understand it correctly, the main purpose of the CSA and maintenance orders is to put the financial burden for the care of children where it belongs—on the biological parents, rather than on the state. If more appeals are upheld under the new framework, the cost to the state will increase. Will the Minister say what estimates have been made of the increase in the number of appeals that will be upheld once the order comes into effect?

The framework is being changed so that the courts will be more involved and the tribunal system will be less involved in the process, but, as a layman, I have the impression that tribunals tend to be cheaper than courts. My son, who is a barrister, does not like me to say so, but the most expensive way to solve anything is to get the lawyers seriously involved in a court case. Therefore, I would expect there to be extra costs for the taxpayer because using the court system will require the CSA to employ more lawyers. Will the Minister tell us his thoughts on that matter?

Column Number: 16

Furthermore, if a court wants to satisfy itself on certain facts, it could order extra tests and the production of additional information of all sorts. Who will pay for that? Will the aggrieved father, the appellant, have to pay for the appeal; if so, will the CSA reimburse his costs if he wins? It is possible that some people will be put off appealing because the cost will be so high. Faced with the maintenance charges that they are already paying, they will think that it is not worth the candle to add insult to injury, as they would see it.

Malcolm Wicks: The hon. Gentleman asks whether someone will be reimbursed if he is found not to be the parent. The answer is yes.

Mr. Wilshire: That is helpful. I am glad that that has been put on record.

The other thing that concerns me about the financial effects of the legislation—it needs only a simple answer—is whether legal aid will be available for such cases.

Mr. Swire: Following the Minister's response, can my hon. Friend say whether a man who is eventually discovered not to be the biological father of a child but who has been supporting that child in the meantime would be entitled to compensation?

Mr. Wilshire: I do not know the answer. It is a pertinent point, however, and I kick myself for not having it on my list of questions. I was touching on a similar matter, Mr. Gale, when you ruled me out of order for going beyond the scope of the order. Nevertheless, my hon. Friend has done the Committee a great service by raising the matter. The Minister heard the question, and I hope that he will answer it, because it is highly pertinent.

I can understand that article 1 should say that new cases should be dealt with first. However, the explanatory note says that other cases will be dealt with later. Will the Minister say when ''later'' might be? How long shall we have to wait? If new cases can take advantage of the improved procedure, people who feel aggrieved about the failure of their appeals under the old procedure will see others getting what they believe to be an advantage. When will that two-tier approach to justice come to an end?

The other thing that concerns me is that the measure will take effect only for the new child support scheme. The Minister told us why, but gave no justification for his view. If there is injustice, should it matter under what scheme it happens? If we are improving the appeal procedure for the benefit of the truth, should not that improved procedure be available to everyone caught by maintenance orders who is certain that he is not the biological father? What is the justification for denying that route to justice to some?

Malcolm Wicks: I am going to break my promise not to say this again. I said in my opening remarks—I have repeated it since—that we are trying to replicate in the order a court route that has existed since an order made in 1993. We simply want to replicate that route in the new child support system. It is nothing new; such

Column Number: 17

matters have always been heard by the courts. I have tried to explain that to the Committee on three occasions now. I begin to feel sorry for my former students; I am clearly a poor teacher because I have not been understood.

Mr. Wilshire: As a former teacher myself, I understand that sort of apology.

Article 1 says that similar measures will be introduced in Scotland and Northern Ireland. I have always been an unashamed unionist. I think that it would be sensible to make the change in England, Scotland and Wales and Northern Ireland at the same time. I appreciate that it is beyond the Minister's terms of reference, but I hope that he can tell us that he has consulted those of his colleagues who are responsible for the other parts of the union on when similar orders will be made there. I hope also that he would consider it sensible to make them all at the same time and bring them into effect on the same day. I understand that he may not be able to answer now; if not, he may answer in writing.

The Chairman: Order. If the Minister does choose to go down the first route, I shall rule him out of order, because we are debating family law in England and Wales.

Mr. Wilshire: I understand that, Mr. Gale, and I apologise for trying your patience.

Article 3 says that cases would be heard by a court. As a layman, it would help to know which court. Will it be a magistrates court, a family court, a divorce court or what? If it is always to be the same sort of court, why does the order not say so to avoid doubt?

Will the Minister tell us the situation regarding privacy? We could end up with the parentage of a child being disputed in court, with the press in the public gallery free to write up the lurid detail of a personal matter. Will the Minister assure the Committee that the child's interests will be protected?

Mr. Boswell: According to the explanatory note, the court can include a magistrates court, a county court or the High Court, although that does not tell us which court would apply in each case.

Mr. Wilshire: I thought that that might be the case, which worries me. These matters are sensitive. They affect family relationships, the identity of the child and how that child sees himself for the rest of his life after a hearing of this sort. Under such circumstances, I would not want magistrates to be the people to take such decisions. The expertise lies not with magistrates but with the judges and the family division. My hon. Friend helped me with an answer to a question, but he raised a string of doubts in my mind about the suitability of the new framework. Will the Minister comment on that?

I am struggling to get my mind round article 4. Paragraph (b), if I understand it, says that an appeal that involves a dispute about the parentage will be dealt with in that way. As a layman, I think that that is a reasonable interpretation of what it says. I am therefore mystified by article 4(c), because article 4(b)

Column Number: 18

says ''and'' at the end of it, not ''or''. That would mean that I disputed the parentage of a child and something else.

Mr. Boswell: In view of the exchanges between my hon. Friend and the Minister a moment ago, I will again endeavour to assist my hon. Friend and improve my own knowledge. I understand that article 4(b) refers to the determination made by the Secretary of State—for example, that X is the parent. Article 4(c) says that there will be an appeal if the appellant does not agree with that determination.

Mr. Wilshire: I am profoundly grateful to my hon. Friend. He is proving exceedingly helpful, and I indebted to him for his kindness. I promise that I will do my best to turn him from a shadow Minister into a Minister as fast as I can.

I detained the Committee because I feel strongly about some of the issues involved. We are touching on profound matters that affect children for the rest of their lives, and we owe it to them and their families to get the order right. When they look back on the deeply hurtful and embarrassing procedure on which they must embark to resolve their dispute, we must show them that we have given proper consideration to such personal, sensitive and emotional matters.

5.33 pm

Mr. Turner: I want to pursue some of the points made by my hon. Friend the Member for Spelthorne (Mr. Wilshire) and to apologise to the Minister for not hearing his introductory remarks.

The Chairman: Order. I must remind the Committee that this is a time-limited debate. Several hon. Members asked the Minister questions, and I hope that the hon. Gentleman will give the Minister time to respond to some of them.

Mr. Turner: Indeed.

The first point was about no cost to the public or the Exchequer. Will the Minister clarify whether that means none compared with past practice, or none compared with what the case would be if the order were not approved? If I understand the Minister, past practice was the same as the practice that the order proposes. If the order were not implemented, a different practice and presumably a different range of costs would ensue. Will the Minister clarify whether ''public'' means the public purse or members of the public as individuals?

My second question is: why, if the previous arrangement was so good, was it not included in the legislation, which enacted an alternative arrangement that the Minister believes is not so good? That puzzles me.

Thirdly, in common with my hon. Friend the Member for Spelthorne, I doubt whether any judicial proceedings will be less expensive to almost anyone than the proceedings of a tribunal. The cost of representation of the individuals concerned tends to be elevated in court proceedings above those in tribunals. Court proceedings hold the potential for awarding

Column Number: 19

costs. Is that unusual in child support tribunals, as it is in employment tribunals, or are costs routinely awarded?

Fourthly, following my intervention on my hon. Friend the Member for Spelthorne, I want to ask about the interpretation of article 4(b). If the Secretary of State's determination includes a parentage determination—it could include half a dozen elements, including parentage—will an appeal on parentage be heard in the court and that part of the appeal that is not about parentage be heard in the tribunal, or will an appeal that includes parentage and other issues be heard as one appeal in the court? I put that question to my hon. Friend; unsurprisingly, given the convoluted drafting, he was unable to provide an instant response.

Finally, I challenge the argument that the court is better than the tribunal—not just on cost grounds, but for reasons of speed. In many cases, a speedy decision is crucial—

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2002
Prepared 9 July 2002