Memorandum submitted by James Pirrie
EXECUTIVE SUMMARY
Court jurisdiction
Any reformed system will have its pressure points;
however, the system that would emerge from the White Paper proposals
would be flawedunnecessarily so.
The key upgrade to the proposals will restore
court powers to make maintenance orders but only where the court
is already making other substantive orders. This would remove
from C-MEC most of the more complex cases that currently overburden
the Agency, taking disproportionate resources. Such a reform would
also:
Permit C-MEC to focus on cases
for which it is suited.
Improve the quality of court-imposed
resolutions.
Perhaps pave the way to a simplification
of Agency rules.
Without increased capacity, C-MEC will not meet
the increased demands that will be placed upon it from parents
with care in receipt of benefits. Such clients currently receive
little from the maintenance paid and so have little interest in
their cases. Implementation of the proposal to increase disregards
(which is appropriate) will create incentives for greater demands.
Removing the demands upon C-MEC from the Complex Case Group will
be necessary for the new agency to have any hope that workloads
will be met within current budgetary constraints.
Shared care (addressed in Appendix 3)
In the past, even children seeing both parents
tended to have one main home. However, now, increasingly parents
are adopting more equal and flexible parenting "two-home"
arrangements. Such approaches are seen as ordinarily benefiting
children. However, it will cause difficulties for a system that
treats overnight stays as a key element in determining liability
to pay and amount of payment due.
For so long as our child support schemes use
overnight stays to determine financial liability, children risk
being caught in the crossfire between parents unable to bring
closure to their dispute.
The Committee should recommend abolition of
adjustment for overnight stays and a more flexible scheme for
dealing with cases where there is closer to equal care.
Debt
Accrued debt (£3.5 billion) must be addressed
for our system to have support.
Lawyers groups now expect to pursue full and
fair compensation where maladministration can be shown. This will
radically increase the fairly minimal levels of compensation now
being paid and will consume significant amounts of Agency resource
in dealing with these historic cases.
The Committee should press for this aspect to
be addressed.
INTRODUCTION
1. I am a solicitor practicing in Family
Law. I gave evidence to the predecessor of this Committee, in
September 1999, leading to its tenth report. I sit on the Board
of family lawyers' group Resolution. I support the views expressed
in Resolution's submission but write separately in view of the
Committee's kind invitation to give evidence. I am a mediator
and was instrumental in the introduction of collaborative law
to this country and sit on the Board of its international group
IACP.
2. I am extremely grateful for the Committee's
embarking upon this further enquiry. The Department and Agency
have been generous with their time but it is increasingly clear
that there is an unbridgeable gulf between the reforms that the
Department is prepared to see introduced and the reforms that
will offer significant improvement to the lives of separating
families.
MINDSET
Lack of "clean-sheet" thinking
3. There is much to be commended in the
White Paper, but what seems to be absent is an overall underlying
philosophy, which would see a reformed system addressing, in a
consistent way, the needs of the different families approaching
it.
4. That philosophy is variable response
with a norm of sympathetic engagement. Instead, the White Paper
focuses upon:
simplifying the formula;
speeding up processes; and
enlarging enforcement powers.
(a) These are surely patching what is already
there as opposed to a more fundamental level of thinking. 40%
uncollected child support does not represent only reluctance and
refusal to pay. A figure of that size can only represent the fundamental
breakdown of a flawed system.
(b) Each time we have viewed a White Paper
proposal for reform, it has seemed a simple recipe for success.
However insufficient investment in the administration, the fact
that all administrations make mistakes and that many families
are complex and messy has made for a very different reality. However
clean the blueprint may appear, an administration cannot be built
to accommodate all cases.
(c) Court option: That dictates that we consider
a court option for complex cases (see below); and
(d) Caution: It dictates that where we have
choices, we should go slowly: upgrades can be built into our system
once we have a new model established and we have addressed the
legacy of debt that plagues our existing agency.
(e) Proper Engagement and sign-posting: We
must follow Australia, which makes considerable investment in
proper engagement and signposting to relevant services. Here currently
too often:
(i) parents end up fighting the Agency
heedless of the impacts on children; 47[47]
and
(ii) the Agency being used as the forum
for working out discontent over other aspects of separation.
(f) Incremental engagement: Strong enforcement
measures may well be neededbut only for a minority of cases:
they are the extreme end of a continuum that requires a variety
of response: from effective engagement and proper processing at
one end, through mid-range options and on to early and effective
enforcement at the other, initiated before problems become profound.
(g) Simplification of the rules: Child support
law is a highly technical labyrinth, with which even experienced
lawyers are struggling even after well over a decade of familiarisation.
No client, whose case involves anything beyond the prosaic, has
the ability to manage their way around the systemor if
they do, they are likely to be ones engaging with the detail of
the regulations to obfuscate and frustrate. It is surely unacceptable
that a system of such complexity has been established without
the availability of legal aid and that it continues to be populated
with increasing difficulty, thus advantaging the party with capacity
to afford to pay for legal advice privately. Focus must be given
to creating a scheme that is accessible to all of those making
use of it.
COURT JURISDICTION
5. The White Paper asserts that a cornerstone
of its reform is "promoting parental responsibility by
encouraging and empowering parents to make their own maintenance
arrangements wherever possible" (page 5 para 15 and chapter
2).
(a) It is true that many families want to
determine their arrangements. However, they want then to have
arrangements that are enforceable. Restoration of court powers
to make lasting orders would achieve this, yet the White Paper
sets its face against such a reform, arguing:
(i) at para 2.36, that the status quo
is required to achieve consistency in awards made by the court;
and
(ii) at para 2.37, that this will protect
families from complex and costly court process in the event of
change.
6. This paternalistic philosophy seems to
result from lack of knowledge/experience and a mistrust of lawyers.
It fails to recognise how matters have moved on:
(a) The courts now operate in a very different
way to the way that they did prior to 1993. Where the courts do
make decisions about child support, they applyuniversallythe
formula.
(b) In fact, in practice and in the complex
case, the courts operate the formula better than the Agency does,
because the courts' forensic processes enables them to get to
the bottom of what is really going on in a family's finances and
their awards in complex cases are usually higher: more reflective
of real ability to pay.
(c) Where the position is clear, agreement
is reached swiftly and sanctioned by the court by a paper process.
7. Resolution's proposal, which should be
embraced, is a simple one: "If the court is dealing with
the case already let it carry on and make child maintenance orders."
(a) Open access to the courts for child support
awards is not proposed. If the only issue of substance is child
support then this must be addressed by C-MEC alone.
(b) It is only where the court is dealing
with matters anyway that it should have powers to impose a child
support award. This will be where it is making substantive Orders
for spousal maintenance/pension sharing/capital adjustment.
(c) The proposal is motivated by the views
that a reformed scheme should not:
(i) waste resources by duplicating functions
between agencies (courts and Child Support Agency); or
(ii) burden bodies with tasks that they
are not equipped to manage (the reformed agency dealing with complex
cases).
(d) The beauty of this proposal it happens
also to identify exactly the client group that currently generates
most problems for the Agency.
(i) The courts deal with cases involving
higher complexity and net worth.
(ii) The Agency has no ability to cut
through to the underlying common-sense realities as flexible powers
currently permit from our courts. The frustration that lawyers
and courts have is that having gathered a real understanding of
the financial realities, they are then prevented from applying
it to determine child support issues.
(iii) Instead, these matters must grind
their way through the Agency processes and that system is proposed
to remain for C-MEC. These arein my experienceexactly
the cases that cause the Agency most difficulty and we have seen
this minority of court-generated cases furring up the Agency and
appeals processes preventing them from performing as intended.
8. Court Powers: the current system
(i) can only make orders by consent;
and
(ii) such orders are vulnerable to being
overturned by the Agency after a year.
(b) Most cases do not reach court. Where
they do so, the court will have spent considerable time identifying
with a high degree of accuracy the true extent of each parent's
earnings or earning capacity. For the 95% or more of cases that
do not need a court judgment, a similar function has been undertaken
by the advising lawyers/mediator(s)/collaborative professionals.
(c) Those in the system craft comprehensive
schemes aimed at meeting all of the needs of the family. We may
express this as follows:
Child Support part of an overall arrangement
(d) Orders made by courts deal with all aspects
of a case. Child maintenance is one aspect and all must integrate
in the attainment of the objective of fairness, usually prioritising
meeting the needs of the two parts of the separating family and
otherwise dividing the resources in a fair way so as to reflect
their contributions.
(e) At the point that the financial order
is finalised, the lawyers/court have all the data that would enable
them to make arrangements for child maintenance in line with the
formula and so would stand poised to make an Order for child maintenance
to fit with the overall scheme.
Circumscribed powers
(f) Yet the lawyers/court must hold back.
They cannot even agree an order that will stand the test of time
because after 12 months the other side can go to the Agency, whereupon
the award will be swept to one side and replaced by the award
of the Child Support Agency, in my experience, usually at a lower
rate and only after considerable delay.
(i) Bad for the tax-payer: It
must be a nonsense for Government to be funding two separate agencies
to duplicate the task of assessing a person's income. Why is it,
that parents who have ground their way through a legal process,
courtesy of the Department of Constitutional Affairs, must then
grind their way through another process (which can be just as
long and frustrating) courtesy of the Department of Work and Pensions?
(ii) Bad for children: Because
the court's forensic powers are significant, many non-resident
parents will opt for C-MEC processes as soon as these become available,
so as to secure a lower award. [48]
(iii) Bad for the courts: More
energy has to be put into finalising agreements at court because
the courts cannot predict the Child Support Agency figures and
cannot control them. The careful balance of the agreement/award
risks being undermined; the mother in a case may need global capital
and income resources at a certain level to ensure that she has
somewhere to live in and enough to live off with the children,
but if the court cannot predict what the Child Support element
will be after 12 months, then matters are very difficult. [49]
(iv) Bad for budgeting: The current
system imposes long delays. Where agreement is withheld, children
risk going without because C-MEC processes simply cannot move
fast enough to provide for them within the timescale of changes
in the family's life. This is an unnecessary pressure given that
the court was poised ready to make an award, having all the facts
available to it. The system may be expressed as follows:
9. Options
(a) As a minimum the court must be permitted
to sanction agreements for child support without their being vulnerable
to termination after 12 months by application of the Child Support
Agency. Better would be:
(b) The court being permitted to impose a
court Order for say 12 months, (permitting C-MEC to have completed
its processes and for monies to commence to flow). However, the
option that will work best for families is:
(c) The court being equipped with powers
to impose open ended Orders for child support. These will of course
be in line with the Child Support formula as it will stand from
time-to-time. (However, it will be operating those principles
more effectively).
Process diagram
10. The detail of the process that would
emerge as a result is annexed at appendix 1 with the detail of
the current system showing as appendix 2.
Appx 1: current system
Appx 2: Proposed reformed system
APPENDIX 3
SHARED CARE
1. The full impacts of this potential problem
have yet to arrive.
(a) A current foundation of the scheme is
its clarity that:
(i) there is one residential parent [broadly
the parent who had more overnights in the last 12 months]; and
(ii) that families can be safely pigeon
holed into 1 night/2 nights/3 nights etc etc categories.
(b) However, there is a growing move towards
"two home" families whereby there are relatively more
open arrangements and children pass with greater frequency (but
often greater complexity) between the two homes.
(c) Current research is that such arrangements
work better for children who are therefore able to have good relationships
with each of their parents. It is wrong to have a financial system
set up based upon the principle of benefiting children that operates
in a way to militate against their needs. However, this is the
result of the current Shared Care Rules. In it's most extreme
form matters come down to overnight stays of a matter of nights.
(d) Regularly, there is dispute as to a number
of nights so as to reach a threshold or deny such a threshold.
2. Resolution hasproperlyproposed
that there is no adjustment for overnight stays whatsoever.
(a) It suggests that the set percentages
of contribution are reasonable, notwithstanding that the NRP may
have additional costs as a consequence of providing for the child.
(b) To impose financial consequences of a
overnight stay regime simply risks catching a child in the crossfire
between some parents unable to put behind them the warfare emerging
from their separation.
(c) The total separation between child welfare
and parenting on the one hand and financial consequences on the
other that exists within the court process has been an effective
foundation of our family law and should be adopted for the purpose
of the Child Support regime.
3. There will be some cases where care is
closer to equal and here there may be no alternative but to have
a much more broadly based discretion.
4. The White Paper does not address issues
of shared care at all. It implies (in para 26 on page 8) that
it is adopting these points previously made by Resolution. However,
an important policy issue such as this is likely to require open
debate.
9 January 2007
47 In one case, a father was reported to have told
the former CE of the Agency that he could pay but it had become
a point of principle that he would not. Back
48
For example one husband was paying £10,000 until the anniversary
of the Order. Payments then terminated for 20 months until eventually
following legal negotiations an arrangement commenced effective
from December 2006. At that stage, assistance from the Agency
was still many months away. Back
49
One mother asserts, that failure of child support has meant that
she has lost her home on two occasions resulting in the need to
move to cheaper housing areas and significant disruption for the
child. Back
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