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Andrew Selous (South-West Bedfordshire) (Con): This group of new clauses and amendments brings us back to an issue on which we spent a considerable time in Committee. The Minister may remember that every single member of the three Opposition parties present asked him to go away and look at this issue. He made a commitment to do so, for which we are grateful.
The Minister has spoken a great deal about choice and its denial, but there is another way of looking at the issue. Many Conservative Members are saying that in some circumstances, albeit for a minority of separating parents, a family court judge should be trusted to put in place an agreement that will last, reflecting the individual circumstances of that family. Only about 4 per cent. of separating families receive those court orders, although they account for 9 per cent. of families to whom maintenance is paid. We accept that it is a minority who are affected, but I hope that the Government take seriously the position of minorities. Those families have the right to fair treatment, and we contend that many more families would avail themselves of the greater flexibilities offered by the courts if any agreement they entered into lasted more than 12 months.
Families should not be discouraged from going to court by virtue of the fact that a rigid, inflexible formula can be summarily imposed after 12 months, thus ripping up any agreement entered into voluntarily by both parties in good faith. In particular, fewer family homes are likely to be made over to parents with care if the 12-month rule and the rules reflecting capital transfers continue under the Bill, even though that might be the one wish above all others that a mother has for her children if her marriage breaks down or her relationship with the father of her children comes to an end. No judge would leave a parent with care with only a capital sum—the family home—and no other income. New clause 5 states that there must be ongoing maintenance payments to the parent with care in addition to any capital transfer that has been made.
Under the Bill, it makes no sense for a non-resident parent to transfer the family home to the mother of his children or vice versa in a minority of cases, even though that might be the one thing that the mother wants above all else from the settlement. The Minister talked about not restricting choice, but he must realise that by maintaining the same position, he is restricting it. No divorce lawyer in their right mind would advise a non-resident parent to transfer the family home to a parent with care, because they would be acting in the certain knowledge that any agreement about maintenance accompanying that capital transfer could be ripped up at a later date. We contend that the Minister is restricting choice.
Mr. Weir: Is not the position worse than that, because the Minister could be standing in the way of people coming to an agreement on the transfer of capital assets? He could be forcing them into a situation where they fight about that, so we are not looking merely at the question of revenue payments in respect of children.
Andrew Selous:
I agree. The hon. Gentleman is right, and I pay tribute to him for the tenacity with which he has pursued the issue. Perhaps his was a bit of a lone voice in earlier years, but he certainly received widespread
support in Committee when he raised such issues. It is a sadness for me that the Government position does not appear to have changed.
One parent or both can apply to the court to have laid aside any court order with which they are unhappy. We know, as the hon. Member for Rochdale (Paul Rowen) said, that Sir David Henshaw, who can claim to be the architect of the Bill, thought that the continuation of the 12-month rule and the rules on capital transfers should not be part of the new system.
It is significant that the Minister managed to unite every Opposition member of the Committee against him. I serve notice on him that at an appropriate point I shall press new clause 5 to the vote. It applies only to England and Wales. I do not know whether the hon. Member for Angus (Mr. Weir) will seek to press his amendment No. 1 to a Division. No doubt he, like me, is awaiting the Minister’s response.
Paul Rowen: As the hon. Member for South-West Bedfordshire (Andrew Selous) said, the clause was discussed at length in Committee. The hon. Member for Angus (Mr. Weir) has tabled a new amendment that addresses the serious concerns that were raised about the 12-month rule, but allows some reconsideration within the scope of the minutes of agreement. I ask the Minister to examine amendment No. 1 carefully. It allows the minute to be amended if circumstances change. I find it strange that the Bill tries to get parents at the beginning of a divorce, once a separation has taken place, to enter into a voluntary agreement. It would be better if such an agreement were given force by being recognised by the court.
John Penrose: Does the hon. Gentleman accept that contrary to the Government’s stated objective of trying to reduce the number of parents who refer their case to the commission in future, the clause is likely to have the effect of increasing the number coming to the commission because they may well go to a court first, and then have to start all over again with the commission after a year and a day? It will have the reverse effect from the Government’s stated ambition.
Paul Rowen: I agree entirely with the hon. Gentleman. We want to reduce the number of cases that go to the Child Maintenance and Enforcement Commission. We already know from the Child Support Agency that it is not working. Having listened to the Minister in Committee, I assumed that by providing advice and support to both parents at the beginning of a separation, it would be possible to reach an agreement that would stick. We have yet to hear how much the Government will commit to making sure that that support and advice are available.
However, at the end of 12 months, no matter what process they have gone through, a parent can go direct to CMEC. The Bill does not stipulate that they can go to CMEC only in certain circumstances. With all the advice and support that the commission will provide, they can enter into an agreement and, at the end of 12 months, tear it up. That goes against the spirit of the Bill.
I agree with the hon. Member for South-West Bedfordshire that we are dealing with only a small number of case—9 per cent. of cases have maintenance agreements covered by minutes of agreement. Research
in Scotland found that 93 per cent. of those agreements are made by owner-occupiers and only 4 per cent. by tenants in rented housing. The research concluded that the agreements were property-driven. Again, I agree with the hon. Member for South-West Bedfordshire, whose new clause 5 seeks to address some of the issues in respect of property agreements. That is important. One of the problems with the Bill has been the fact that so many of the things that will happen will appear in regulations later. We should try to fix a far more detailed arrangement.
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I accept what the Minister said earlier. There has to be a clear principle that children should be able to benefit from any prosperity that both parents have. The Minister takes the view that we are putting forward tablets of stone that cannot be changed, but neither of the amendments being pressed are like that. I should like to read a little more from what Sir David Henshaw said in his report, because it comes to the crux of whether voluntary agreements will be worth the effort put into them. Sir David said:
“I recommend that consent orders obtained through the courts should not be able to be overturned by the administrative system. This would remove the current 12-month break-point which enables parents to move between consent orders and the administrative system. The order from the court would be given primacy and the courts would become responsible for varying and enforcing consent orders, in effect tying such cases into the legal system.”
I know that when the CSA was created, no standard assessment was made of what should be paid for maintenance. If the CSA has done one good thing, it is to have set in place a fairly well accepted system of what payments should be made.
Mr. Plaskitt: The hon. Gentleman has quoted Sir David Henshaw. Does he also recall the very first recommendation of Sir David’s report? I shall remind him of it. Sir David said that although we should
“Create a system that allows parents to make their own arrangements”,
“quick and effective involvement from the state where such arrangements are not possible.”
Paul Rowen: I agree, but nothing in our amendment negates that fact.
Mr. Weir: Does the hon. Gentleman agree that an agreement that can be enforced in the same way as a court order is likely to be much quicker than starting from square one and making an application to the Child Maintenance and Enforcement Commission?
Paul Rowen: If some of our concerns about the staffing of CMEC and how it deals with the historic cases are not addressed, we will find that the new commission will not be able to deal with cases. I come back to the point that we are trying to encourage a voluntary agreement and that parents should be able to get advice from the various agencies. Minutes of agreement should have some force of law for the small minority that go into them, but the 12-month rule does not provide that.
Andrew Selous: Does the hon. Gentleman agree that new clause 5 and amendments Nos. 1 and 13 try to support the Government’s objective of making voluntary arrangements popular and of making them stick and be an encouragement? In fact, those measures from the Opposition parties try to support the Government’s objectives in the Bill.
Paul Rowen: I agree entirely. We need to ensure that the minutes of agreement have some strength and last longer than 12 months. Family lawyers have said that the 12-month rule has acted as a deterrent to couples in making consent orders or minutes of agreement because both parents know that they are free to break the agreement after the 12 months by going to the Child Support Agency.
The amendments are sensible; the numbers involved are small and the amendments would ensure that sufficient safeguards were in place to ensure that any order made proper provision for future maintenance. As the hon. Member for South-West Bedfordshire has said, the amendments support the Government in their main objectives. I hope that the hon. Member for Angus (Mr. Weir), as well as the hon. Member for South-West Bedfordshire, is in favour of putting the amendments to the vote, because we need to place the important issues on the record. We have tried to be constructive and ensure that the Bill delivers its stated purposes.
Mr. Weir: I should like to speak to amendment No. 1, which stands in my name and those of the hon. Members for Inverness, Nairn, Badenoch and Strathspey (Danny Alexander) and for Rochdale (Paul Rowen). As has been mentioned once or twice, I have raised this matter on a few occasions previously; Members who served on the Public Bill Committee may find that they have a sense of déjà vu. In Committee, I told the Minister that I had made the last throw of the dice, but I have thought about it again and come back for one last try in the hope of persuading him to see sense.
New clause 2 also refers to Scottish minutes of agreement. I do not understand why the Government tabled it, as it seems somewhat superfluous. It does not change the existing law as regards minutes of agreement, which would fall under the definition in clause 10, but it still means that they cannot last for more than one year. That is the fundamental difficulty with the whole matter. The Conservative amendments also relate to this. If I understand them correctly, two cover England and Wales only and one covers Scotland separately. The same issues apply in England as those that I have raised in respect of Scotland. The Conservatives and the Liberal Democrats supported me during my previous attempts to address this in Committee, for which I thank them. Depending on what the Minister says, I hope that they will support me again today.
The system of minutes of agreement in Scotland means that an agreement entered into and registered has the same legal standing as a court decree and can be enforced without going back to court. That is a fundamental point. As Members will be aware, the introduction of the prospect of separating couples entering into a voluntary minute of agreement under the new system was widely welcomed when the Bill was published.
John Penrose: The Minister said that in the absence of this proposal children are likely to be left without any maintenance because the existing arrangements have broken down. Does the hon. Gentleman agree that that cannot happen because the court order or minute of agreement is enforceable via the courts?
Mr. Weir: It is enforceable in the same way as a court decree. The situation is slightly worse than the hon. Gentleman suggests. If there is an effective court decree that can be enforced by the use of sheriff officers, bailiffs or whoever is used in England for such matters, with arrestment of bank accounts and all the paraphernalia of enforcing decrees, the process can be relatively quick. If that option is not available and it is necessary to go back to CMEC, the process has to start from the beginning again. CMEC might be super-efficient and get things done quickly, but the history of the CSA does not bode well, given that many cases have lain with it for months, if not years, during which time no maintenance has been paid and arrears have escalated, which becomes a serious problem because when enforcement is attempted the arrears are astronomical and the absent parent will go to any lengths to avoid paying them.
As I said, the innovation was widely welcomed, and rightly so. I stress, as did the hon. Member for South-West Bedfordshire (Andrew Selous), that the number of people wanting to enter into a minute of agreement that goes beyond the statutory scheme will probably be low, but it is an important group and it is important to provide choice. However, as things stand under the current legislation, this will have little impact because the minute continues to be restricted to one year. Sir David Henshaw recommended that that rule be abolished. One of the hopes as regards the reform of the CSA was that many more people would enter into minutes of agreement, but retaining the 12-month rule puts a restriction on the number who can do so. I think that the Minister will be disappointed by the number who go on to use minutes of agreement. The Public and Commercial Services union has raised concerns as to whether the numbers that he has projected, which underpin future reductions in staffing, will be met. There is an historical perspective to this in that the original 1991 Act envisaged the Child Support Agency taking over all cases of child support from the outset, which proved well beyond its capabilities. The present one-year rule was introduced to give it a breathing space, and that has now been in existence for seven years because the agency was never able to catch up.
If we are to move forward, we all agree that it is important to get maintenance for children and to get an agreement that is in the best interests of children. The Minister seems to have tunnel vision on the matter; he is looking at only one item. It was the same in the old CSA, which overturned agreements that worked quite well because it was obsessed by the revenue stream, rather than considering the whole circumstances of the family. If we are to allow separated couples to reach agreement, we must allow them some freedom to reach an agreement that suits their circumstance.
If we proceed with the Bill as drafted, no one in their right mind is likely to enter into an agreement that deviates from the child maintenance levels set out in it, despite the fact that we were clearly told in evidence
sessions that many parents wish to consider alternatives. I quote Hilary Reynolds, who I think is the civil servant in charge of the Bill:
“It is worth noting that when we have talked to some clients about what they find important in a voluntary agreement, sometimes it is not regular payments, but lump sums, mortgage or school uniform payments, or whatever. What suits the parents of the child or children will be a variety of things, not just the standard x amount per period.” ——[Official Report, Child Maintenance and Other Payments Public Bill Committee, 17 July 2007; c. 29.]
We also have to remember that when couples with children separate, the agreement comes at a very traumatic period. They are often very wounded, and we are asking them to negotiate an agreement. We need to give them the confidence that the agreement negotiated will be adhered to. I reiterate the point that I made in an intervention on the Minister. As things stand, even under new clause 2—I do not oppose it, but I do not think that it changes the law—parties can still enter into an agreement, and a year and a day later, one of those parties can say unilaterally, “It doesn’t matter. This has all worked fine, but I’ve decided I don’t like it any more. I’m going to the commission and asking them to overturn it.” The history of the CSA is that many minutes of agreement were overturned because it just looked at the application of the payment for child maintenance. It did not take into account any transfers of capital, transfers of the matrimonial home, transfers of business or anything else, which led to a great deal of problems.
The hon. Member for Rochdale made the point that research has shown that many agreements were property-driven, which is probably correct because they were bound by capital payments. Sometimes, however, the property is the only large asset there is, and in many cases where a couple are separating, the other party disappears off the face of the Earth as soon as the separation is through. A house is an asset—that is why we have mortgages. It is sitting there, immovable. In many cases one party would very much like to get the house before the other party disappears. The Minister’s objection in Committee, which is coming through again today, seems to be the fear that such agreements will be used to get around obligations for child maintenance. None of us wants to see that happen. We all want both parents to adhere to their obligations. We are all trying to get to the same thing, but the Minister is transfixed by that fear. I do not believe that his fear would be realised. Such minutes of agreement, in my experience in my previous life, are not set in stone. They contain provisions for amendment through passage of time or change of circumstances.
We all recognise that child support is a long-term matter. It is not for one year or five, but for 15, 16 or 17 years. There are some parents who will go to extraordinary lengths to avoid paying for their children. Frankly, however, it does not matter what rules are in place; those who are prepared to do that will still be prepared to do it. The new agency should be concentrating its fire on those cases. Those parents who accept responsibility and are prepared to enter into a sensible agreement should be allowed to do so, and to do so in terms that fit their circumstances. I mentioned the problems with the old agency overturning such agreements and if the rule remains in the current form, the problem will continue. CMEC could do exactly the same and the same problems will arise. No one will enter into a minute of agreement on other than the standard terms.
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After Committee, I tried to think about the Minister’s objections to the amendments that I tabled. That is why amendment No. 1 takes its present form. I tried to incorporate some terms that would alleviate the Minister’s concerns. I made it clear that there must be independent legal advice before the agreement is signed. The husband cannot say to the wife, “Sign the document, or else,” or put pressure on her. They have to receive proper legal advice. I have also made it clear that the agreement must contain
“provisions for the maintenance of any children whether by regular payments, transfers of capital or a combination of the two”.
It must address the point of maintenance for children.
The agreement must also contain provision
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