Select Committee on Work and Pensions Written Evidence

Memorandum submitted by James Pirrie


Court jurisdiction

  Any reformed system will have its pressure points; however, the system that would emerge from the White Paper proposals would be flawed—unnecessarily 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.

    —    Save costs.

  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.


  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.


  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.


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 needed—but 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 system—or 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.


  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 apply—universally—the 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 are—in my experience—exactly 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

    (a)  The courts:

      (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.

    (g)  This is:

      (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



  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 has—properly—proposed 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

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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