Select Committee on Work and Pensions Minutes of Evidence

Examination of Witnesses (Questions 1-19)


17 JANUARY 2007

  Q1 Chairman: Good morning, everybody, welcome to this first evidence session of our child support inquiry; particularly welcome to our three witnesses. There seems to be a fundamental, philosophical question about what child support is supposed to be, or what it is going to be in the future. Is it just about sharing the costs of children, or is it about children having a right to share in the wealth of either parent. Would you like to observe?

  Ms Maclean: Are you throwing that to me? I am here as a sort of dinosaur because I was consultant to the then LCD when the original legislation was planned and carried through and the origins of the whole concept come from a wonderful man called Irwin Garfinkel, who I am sure you have come across, who is this magical combination of social worker and economist—it is very rare, bringing together those different ways of thinking. His original formulation was that parents have a duty to share their resources with their children, in the same way after separation as they shared them while the household was intact; that is a very good starting point. Myself, I am very uncomfortable with the language of rights; I much prefer the language of responsibility, a responsibility to share with your children throughout their life, regardless of what arrangements the parents are making for themselves. That is very much at the heart of the way that English law deals with the relationship between parents and children. Our Children Act talks about parental responsibilities, not about parental rights, and it is a very helpful way of approaching the issue.

  Professor McKay: I have a slightly different take on that, if I can come in there. I am a social researcher and my background is more based upon talking to people about these issues, and in the work that I have done with NRPs and parents with care and also with the kind of surveys I have done, people are actually fairly evenly split in their views about whether child support should have an upper limit, whether it should continue as high as the parents' incomes go or whether it should be subject to some kind of maximum. It is a finely-balanced point. In 1999, when we took evidence, Nicholas Mostyn, QC did a very assertive piece saying that there was not a right to share in living standards and it should be more about costs. As a policy analyst, looking at the White Paper, there is a tension between saying the primary aim is poverty alleviation, which is clearly what it does say, and on the other hand saying but we are not going to impose any kind of maximum, because clearly there comes a point when it is not about poverty alleviation, My view is that although I would wish parents to share their living standards with their children after separation, compelling them to share their living standards is a move further where there is evenly balanced public opinion out there. I was also looking back at the history of this, and both CSA schemes eventually introduced a maximum but almost through last minute and kind of backdoor methods, so it is important that a proper discussion is had before the legislation goes through rather than these maxima being inserted at the last minute or one or two years down the track. My final point is that there are tactical questions about how much extra money is going to be raised by going all the way up the income distribution against the powerful groups, the opinion-formers, and what their reactions would be.

  Q2  John Penrose: I want to pick up on that because inherent in those two different formulations of a potential role there is a whole other agenda too, and if you try and take the role beyond the basic poverty alleviation and start talking about parenting responsibilities, all of a sudden the notion of child support becomes a very, very reductive, very narrow, rather sadly money and accountancy-focused exercise and it completely ignores what most people regard as parenting, which is all the other things of parenting. At that point there is then a question about whether or not the CSA or its successors have to interact successfully or not with all the other parts of parenting responsibilities through other acts. I just wondered whether or not you regard that as having an angle on what the CSA and its successors' roles should be?

  Ms Kazimirski: That is a very important point. I am in social research as well and a lot of our research covers talking to parents with care and non-resident parents about child maintenance arrangements, and that is one of the key things that came out of our research, how closely linked financial arrangements are with everything else, with contact and so on, and how having a stable maintenance arrangement can have a lot of beneficial impacts on, for example, relieving the anxiety that the parent with care experiences and, hence, probably improving the care that she can take of her child. Also, improvements in the relationship between the parent with care and the non-resident parent would obviously have beneficial impacts on the children, so it is not just to do with financial improvements it is also to do with lots of other improving aspects of the family relationships.

  Q3  John Penrose: If you are agreeing with that, what implications does that have for what the CSA and its successors' roles should be? Should it be the minimalist role or should it be the broader role?

  Ms Kazimirski: The key thing that we suggested was more to do with signposting appropriately and responding to family circumstances and so on; we have not gone as far as suggesting that the Child Support Agency should do everything else as well but it should be well-connected with other support services.

  Ms Maclean: I would disagree. Anne and I have had this conversation a number of times and I am afraid I sit in the camp of those who think that money is a separate issue from all the other aspects of separation and continuing parenting. It gets quite dangerous if you start mixing the notion of financial responsibility with rights to contact, and buying children's time is a very dangerous concept. The last time I sat in this seat I was giving evidence to the Constitutional Affairs Select Committee on the children's adoption legislative proposals where the Government did steer clear of mixing money and other aspects of parenting. The important thing for the CSA is not to ask it to do too much; it has got quite enough on its plate with assessment and collection and to ask the CSA to take on a more complex, welfare-supportive role is really a bit optimistic. Signpost it by all means, but really I would like to see the CSA be a lean, mean, effective machine for making assessments in the new simplified way and getting on with the job of collecting the money. That is where the focus should be.

  Professor McKay: Very briefly, clearly the CSA is a money-collecting body and tries to avoid everything else, and that is one model of the way the world can work. Yes, they can signpost to other people but that pretty much is their role. What is proposed from now on, of course, is the idea that there is going to be much more of an advice service around and at that point the issue is should there be an advice service which just covers money or should that kind of advice service also take on other kinds of responsibilities, and then you are into all the people who already provide advice, solicitors and all the rest of it. The CSA always has been just for money-collecting, but when you bring in this idea of advice in the future, what will be the scope of that? That is not entirely clear to me.

  Q4  Chairman: You can, of course, alleviate child poverty in an individual case by paying the minimum level plus one penny; surely it has to be about more than just eating above the poverty level, it has to be about quality of life as well because the child does have rights even if the child does not have responsibilities. We were all fascinated last week to hear in greater depth about the Kehoe case in the House of Lords which determined that neither child nor parent with care had a right to receive child support. Do you have a view on this?

  Ms Maclean: There are others better able to advise you on that than I.

  Professor McKay: It is not an area of speciality, but as I understand it the case was about whether the person has a right to pursue maintenance in their own right, whether they can try and enforce that themselves. My understanding is that other jurisdictions allow more scope to do that, but 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. It does seem strange, but I am not a legal expert and I would not want to say too much.

  Q5  Mark Pritchard: Under the 1991 Act the CSA has the monopoly on enforcement, and that case highlighted the fact that that position is to remain. Have you taken evidence in your research in the United States? State by state there are different enforcement regimes, perhaps the most extreme being garnishing of wages directly at source and if they do not pay up they end up in prison. I am not stating that that is a position that I necessarily agree with, but nevertheless there does seem to be perhaps limited parameters of the research that has been undertaken by certain people who advise DWP and I just wondered whether you should have more of a global research approach in order to look at more options, especially in relation to the point the chairman made.

  Ms Maclean: I do think there is good liaison with researchers around the world, I think we all have a pretty good idea of what is going on elsewhere and the original research done on imprisonment for failure to pay child support was done 20 years ago and it was very effective, but the most interesting thing about it was that the main route out of prison for these men was borrowing from their mothers-in-law.

  Q6  Mark Pritchard: I do not know which is the worst sentence, the former or the latter, but there we are. It could be a life sentence, the latter.

  Ms Maclean: I do not quite know where that takes us.

  Q7  Mr Foster: The approach, both in Henshaw and indeed in the White Paper, is very much to start off with voluntarism, the idea of agreements. What is the position at the moment, what are the numbers of the people who actually reach agreement or have to have enforced orders or agreements?

  Ms Kazimirski: Do you mean when a deduction from earnings happens or not?

  Q8  Mr Foster: No, whether in fact there is a voluntary agreement between parents to maintain their children. We did have some figures the other day and I just wondered if you have done any research into that because the figures we were given rather surprised me.

  Professor McKay: There are some figures that appeared in Hansard and the first thing to pick up on is that only about third of those who are in a sense eligible for child support actually get any, so you are already down to a third of the people who actually receive any money, and the breakdown of that third is something along the lines of a quarter through the CSA, a quarter through the courts and about half through private agreements, there is that kind of breakdown. Obviously, that is affected by the fact that some people have no choice and are compelled to go down the CSA route, but essentially what has happened over the last 10 years is that the private proportion has taken over from the court proportion and the CSA proportion has been stuck at well below half for some time.

  Q9  Mr Foster: Has that number involved in private arrangements been affected by the ineffectiveness of the CSA, do you think?

  Professor McKay: There are two clear reasons why people choose not to use the CSA. The first is they think it is not going to be effective, they think it is kind of pointless, and in many cases they may well be right—and, secondly, that it is kind of stigmatising for those involved in it. When people get approached by the CSA it is not currently a neutral assessment and collection agency, it has very much got the image that it is for deadbeat dads, those who have not been paying, so people do not want to introduce a big element of stigma into a situation where it might not be very helpful. Anne may want to come in on people who do not use the CSA.

  Ms Kazimirski: Our research so far has focused on clients of the CSA and we are actually just starting a survey that includes separated parents who have not been involved with the CSA, but I do think, just from the research we have done, which relates very much to parents using the collection service, where the CSA collects money and passes it on to the NRP, versus maintenance direct where the CSA is involved in the original assessment but then the money is actually paid directly by the NRP to the PWC, we could probably extrapolate a little bit there based on the views of the parents who opt for maintenance direct. There is that sort of feeling, that being involved with the CSA sounds like quite an extreme thing to do and if you go for maintenance direct it feels like a slightly nicer thing to do, but it is only a minority of parents who end up on maintenance direct and they are very much associated with parents who had a relatively amicable break-up, a relatively amicable relationship, and usually where the father is actually in quite a good financial situation.

  Q10  Mr Foster: Do you think it is socially desirable for parents to reach agreement, private arrangements, rather than have the state involved either in assessment or even the collection?

  Ms Kazimirski: You could say socially desirable, but whether it is realistic or not is the issue really. Our research on maintenance direct, which was looking at how to promote it and so on, was focused on parents not on benefits because at the time of the research there was not a possible plan of introducing maintenance direct, let alone private arrangements for parents not on benefit. For those not on benefits there were a lot of concerns of ones using the collection service over the feasibility of receiving any money under the maintenance direct system, of ever being able to agree on arrangements between the two partners. The reluctance was on both sides, not just the parent with care; the non-resident parent sometimes appreciated having a third body involved as well in order to have proof of payments because they might have had problems in the past where they have paid the money but the parent with care claims that it had not been paid and so on. We have quite a lot of reservations, therefore, about the extent to which it will work to encourage parents to go for private arrangements. One of the key things is what backup they will have if there is a breakdown. At the moment, because parents are used to the collection service, they would be happy to try a private arrangement if they were sure that an agency like the CSA would step in quickly and efficiently if there was a breakdown, but because they do not have that trust, or many parents do not have that trust in the agency, that is quite a major barrier.

  Professor McKay: If I can just add a couple of points to that, very quickly. It is pretty easy to log in, if you have internet access, to look at the formula and calculate what the assessment would be by yourself, so there is no need to have a relationship, you can just go and work out the amount. In terms of social desirability, most people we spoke to certainly felt that if parents could come to their own arrangements they should be allowed to do so and the state should not jump in and change that. The other aspect of social desirability which is a wide question is should the taxpayer be paying for children? If these are private arrangements, should they be offset in benefits, so there are some questions there about the wider who pays for families, and that is an issue about the social desirability which goes well beyond just parents.

  Ms Maclean: Can I just add one point to that? It is worth remembering what the CSA has established, not necessarily for its own clients, but in the terms of broader social norms, the change in people's expectations about what is the proper way to behave. If you think back 20 years ago it was not accepted that there was an ongoing financial responsibility for children after separation necessarily, it was quite accepted that if a woman re-partnered with a wealthy man, the original father should not be expected to contribute, or if the father had a second family he should not be asked to contribute. There was a famous case of Delaney in 1990 where the judge actually that he would not award child support in that case because the father had a new family and that new family deserved every chance to establish itself." We do now have a situation where it is generally accepted that there is a responsibility on separated parents to financially support their children, and it is very rare for a piece of legislation to accomplish that sort of societal change. What worries me about the move towards promoting voluntarism is that this is quite a fragile creature, this expectation, this acceptance of this responsibility, and it would be very easy for it to disappear without the CSA underpinning that this is what has to be done.

  Q11  Mr Foster: What sort of support do you think parents will need in order to encourage them, indeed support them, in making maintenance arrangements between themselves because many will not have any idea what is expected. They will have the CSA scales but they will not even know about those unless they approach the CSA, so what sort of support network should be in place to achieve that worthy objective, if it is so?

  Ms Maclean: That is the key question for this legislation. It is very easy to legislate; it is very hard to do all the underpinning of the work which makes implementation effective. I am sure there is a great deal of work going on on this and perhaps the experience of the One Parent Families Association, which has a lot of experience in trying to support lone parents in finding work and other issues, will be useful. Their view is that a telephone line is a very important first line of contact, but that what really makes a difference, particularly in job-seeking work, is a face-to-face contact, somebody who will actually sit down and talk to you about the options and how to follow them through, the kind of support which traditionally came through solicitors when legal aid was rather more generous than it is now.

  Q12  Mr Foster: Does anyone else have any comment on that?

  Ms Kazimirski: I would echo the comments on the importance of face-to-face contact, that is one of the things that came out in relation to what people appreciated from the Child Support Agency staff. Face-to-face contact, very clear information, plain language, does not use jargon, all obvious things but they are not necessarily working so far, and that is clear language both in face-to-face meetings but also in any kind of written communications and telephone support and so on.

  Q13  Mr Foster: The key issue as I see it is should this be work for the voluntary sector or should there be some sort of state intervention at that early stage, a reference point for parents who have split to make their application?

  Ms Maclean: It has to be both, it cannot be one or the other, there must be a state point of contact. The state has responsibility to support people to get started and getting started with child support is part of the battle. If you establish a pattern of payment early on it is much more likely that it will continue, but there is always the issue that parents will perceive any state agency or C-MEC-based advice as being partisan in some way or that there is some kind of conflict of interest; it is like asking a lawyer to advise both sides. There has to be a role for some serious contribution from the particular groups who are seen as supporting the various parties involved.

  Mr Foster: Can I move you on then to the area of where the state should step in if an agreement has been reached? As you know, there is a difference of approach between Henshaw and the White Paper on the 12 months, which is at what point should the state have the opportunity to look again at an agreement. Historically, Mavis mentioned what used to happen, the clean break settlement, because I used to be part of that in stitching up the then Tory Government by, as a lawyer, passing capital over to mothers and letting the state pay the rest. That was, to be honest, disreputable.

  John Penrose: You said it.

  Q14  Mr Foster: What is it that is different now; should the state have the opportunity to review and if so when? Is the 12 month rule the right period or what do you think about the right of the state to protect the state against parents who would rather do a deal?

  Ms Maclean: The 12 month rule is rather more than that. I am very much in favour of keeping the 12 month rule; if you move away from it you risk setting up two parallel systems and people are trapped in one or the other and can never move across, and that would be very socially divisive and wrong. What the 12 month rule does is make the private arrangements feel the impact of the state's expectations. We often talk in my field, which is the sociology of law, about the shadow of the law reaching out and affecting behaviour, not directly through court decisions but through the knowledge that if you ever did go to court, that is what would happen. It works the other way round with the 12 month rule in that the knowledge that the CSA formula is there has a very powerful effect on what parties will put into a consent order in the courts and it would be extremely unfortunate to lose that. You talk about protecting the interests of the state; I would put it as protecting the interests of the child as if you lose the 12 month rule you are allowing parties to agree to something which does not safeguard the child's interests in that stream of income and it can be bargained away in one set of circumstances. The other absolutely crucial thing to always remember about child support is that it is not a one-off decision; it is a lifetime, on-going economic relationship between two people rearing a child. It is not agreed on day one and set in stone; it is agreed or imposed and then it has to be varied, it has to be enforced, it has to be rethought in new circumstances, rearranged as a child gets older. It is much more like a tax assessment than it is like a compensation award or a divorce financial settlement; it is an on-going financial relationship and that is why I think the 12 month rule is so important because you cannot simply reach a consent order and that is the end of the story, it is only the beginning of the story.

  Ms Kazimirski: The 12 month rule is only to do with court consent orders and, presumably, you are also interested in views on private arrangements not to do with the courts and when the CSA or C-MEC should step in. That suggests that there is potential for changing the way that the CSA currently responds to parents' requests, and this is where you have to be quite careful and this is what I was talking about when I was saying that if you want to encourage parents to go into private arrangements you have to be very clear about what would happen if they break down, and they would want a guarantee that they do not have to wait for six months without any money before anything will happen. You probably need, therefore, to establish some sort of rule as to how much non-payment will count as the private arrangement not having worked and an agency needing to step in. It might be difficult to settle the one portion of payment or one length of time because the impact that it will have on the family will depend on the parent with care circumstances and so on, so it is quite a tricky area.

  Professor McKay: The one caveat I would have with Mavis's view, which I would basically agree with, is I think there are occasions when a lump sum settlement is more useful and tangible rather than an ongoing string of money, and certainly in the Australian jurisdiction it is possible to convert what would have been an expected level of maintenance into a lump sum at the outset. I do not want to go into family stereotypes, but if you are separating from someone who is self-employed and able to negate their income in various ways, is it better to do 50-50 on the asset and then try and go after the child maintenance, or is it better to try and work out a sensible lump sum to offset some of that. That is a pattern that Australia permits and it would not be in your interest to do that if it was going to be looked at again in a year's time.

  Q15  John Penrose: Can I pick up on a couple of your replies to that last question because, listening to you, it sounded like there were actually two issues in play. One is enforcement of a consent order and what happens if it breaks down after four months; do you have to wait until 12 and so on? I can understand that it is necessary and desirable to have some sort of enforcement mechanism whether it is a 12 month order or not; it strikes me there could be plenty of other options—indeed there are other options in others areas of law—to enforce debts and agreements. The 12 month rule yes or no, therefore, does not strike me as necessarily the only or indeed the best potential answer to the enforcement question. The other issue, which you also seemed to be talking about, was this notion of creating new expectations. I completely take the point about creating new expectations, but is there not also a point about individual freedom, and if couples come to a voluntary agreement and sign up to it and it is different from a bureaucratically-calculated formula set by the CSA or its successors, is that not actually what a free society is all about and should we not honour that rather than telling them no, no, you must not; you are not allowed to because it does not agree with our preconceived notions cooked up in an ivory tower in Whitehall or Westminster?

  Ms Maclean: What you are doing in that formulation is seeing this as a purely adult dispute, adult arrangement, you are leaving out the interests of the child. The point about having an expectation that there will be an element of income for that child; that is putting the child's interests back into this equation and that is where the state interest comes in, to protect the interests of the child.

  Q16  John Penrose: Surely the parent with care—ideally both parents but at the very minimum the parent with care—is going to be looking out for the interests of the child and the assumption that the parent with care is going to be incapable and systematically will not do it and the state knows best is surely very dangerous?

  Ms Maclean: Family life is now so complex that if you were talking about a couple who separate, with one child who they are both focused on and doing their best for, in an ideal world that would all be fine, but post-separation parenting tends to be more complex and if both parties re-partner and more children come into the equation, existing children of new partners and new children of the new relationships, balancing out the interests of these different groups of children becomes very complex for parents and it is very important that the state safeguards that primary obligation.

  Q17  John Penrose: I would agree, but again your formulation seemed to assume that in all cases the state knew best, and what I think I have just heard you say is that actually in the vast majority of cases the parent with care—ideally both parents know best but there may be occasions when neither parent is looking after the interests of the child, but I would hope and expect, even in the complicated world which we now live in, that is going to be a vanishingly small minority of the cases where parents have split up. Are you telling me that the statement is best in all cases rather than just that vanishingly small minority; should this not be a residuary power rather than the blanket, uniform one size fits all norm?

  Ms Maclean: It is safer this way—as a cynic.

  Professor McKay: I would be slightly more positive. Something that parents agree to is more likely to work and self-enforce than something they do not agree with.

  Q18  Miss Begg: I want to continue teasing out how the whole issue of private arrangements will work in practice and who will make the decision that the settlement that they come to is actually a fair one. If one of the partners decides down the line that in fact it is not fair, even though the compliance has been there up to that point, at what point under the new proposed system would the disaffected parent be able to go to the new C-MEC and say actually, we are in a position where we want you to be involved? That obviously can happen at the moment with the CSA, and I base it on a case that came into my constituency surgery on Friday where a high-earning father split up from wife, who has re-partnered with an even higher earning partner, but under the new system 20% of his income is going off to the family. It is through the CSA, the CSA are involved—and I can understand why—but he says it is because she thought she would get more that way. He still has to have the big house in order to look after the children who stay overnight, he still takes them away for holidays, so in that scenario under the new, new proposed system would the parent with care be able to say the settlement we came to initially, I think I can get more by going through C-MEC and therefore they would have the right to do that, and who would make the judgment as to what was fair?

  Professor McKay: My understanding of what is proposed is exactly what you have just said, that under the new system anyone could go and . . .

  Q19  Miss Begg: It is not going to be any different from the way that the CSA is involved at the moment.

  Professor McKay: My understanding of what is proposed is that it would be exactly like it is now. Obviously, Henshaw suggested charging upfront fees to try to dissuade some of that and that has been kind of rejected.

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