MONOPOLY OF ENFORCEMENT
235. A further issue concerning enforcement is the
monopoly that the CSA currently enjoys in this area. Under the
1991 Act only the CSA has the power to collect child support debts
and enforce liabilities through the courts. This was tested in
the Kehoe case in which the House of Lords ruled that neither
a child nor a parent with care has the right to pursue this debt
in their own right. Professor Stephen McKay commented that:
"it is a strange world in which the state, which
often has no interest in collecting money privately, is the one
who has to collect it and the individual who does have the interest
in actually receiving it does not have that power."[267]
236. One Parent Families stated:
"It is intensely frustrating for parents with
care, who see a non-resident parent freely spending sums of capital
whilst owing large arrears in child support, that they are completely
dependent for enforcement action on an often slow and ineffective
bureaucracy."[268]
237. The issue was also flagged up by Sir David Henshaw:
"Under the current system, a parent with care
has no right to enforce a claim for child support against a non-resident
parent who fails to pay. A number of stakeholders have argued
that the legislation should be changed to allow such independent
enforcement. Such a step would fit with the logic of giving more
individual responsibility to parents. However, it would also raise
some risk of duplication of effort between the administrative
and court systems. One option would be to allow parents with care
the right to enforce, but only if there was clear evidence that
the administrative service had failed to do so effectively (for
example by not taking action within a defined period of non-compliance).
This should be considered further in the detailed design of the
new system."[269]
238. One Parent Families stated that it would like
to see:
"The Child Support Act amended to allow a parent
with care to be able to apply to the Family Courts for:
- firstly, an investigation of
means of the non-resident parent; and
- secondly, permission to bring enforcement action
for unpaid child support liabilities through the Courts, in circumstances
where a sum has been levied against the non-resident parent by
the Agency or C-MEC; he has failed to pay some or all of the maintenance
due; and the Agency or C-MEC has failed to take effective enforcement
action against the non-resident parent in the last three months
in circumstances where such action could reasonably have been
expected. The Family Courts would be able to grant leave for
the parent with care to pursue enforcement action in circumstances
where it was thought enforcement action stood a reasonable chance
of success. Such a provision would hold the Agency or C-MEC
to account for their action or inaction on an individual case,
and allow Court intervention to prevent disposal of funds which
could be used to pay off child maintenance arrears by the non-resident
parent."[270]
239. A reform to give the parent with care and the
child the power of enforcement would seem to follow the policy
principles of individual responsibility and movement away from
state interference. It is also a policy that has been adopted
in the latest Australian child support reforms. However, the
White Paper does not comment on this issue. In response to questioning
by the Committee on this issue the Secretary of State replied
that:
"I do not believe that it is likely that an
individual parent left to his or her own devices is likely to
be necessarily more successful than C-MEC."[271]
240. The
Committee doubts that many parents with care would wish to use
the court system to enforce child support liabilities. However,
where there are substantial arrears, and the CSA has failed to
take effective action to enforce those debts, then the Committee
believes that it would be consistent with the overall policy thrust
of the Government's reforms to allow parents with care the option
to enforce such debts through the courts in their children's name.
233 
