Examination of Witnesses (Questions 1-19)
PROFESSOR STEPHEN
MCKAY,
MS ANNE
KAZIMIRSKI AND
MS MAVIS
MACLEAN
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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