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Lord Mackay of Ardbrecknish: My Lords, this amendment would introduce a new clause which would require the welfare of any child affected by any transaction or decision under the Child Support Act to be a primary, or first, consideration, whether the decision was a discretionary one or not.

We have had extensive discussions on the existing welfare of the child provision in Section 2 of the 1991 Act several times during the progress of this Bill. That existing provision ensures that the welfare of the children who may be affected is taken into account when discretionary decisions are made. As I have indicated during previous debates, I have no evidence that the Child Support Agency's staff are failing to consider welfare. I shall come to the point about how they are guided shortly. I understand the concerns that noble Lords have to ensure that this House safeguards the position of children involved in child support cases. However, I believe that Parliament made the right decision in 1991 when it approved the wording in Section 2 of the 1991 Act.

This amendment goes further than that in two respects. First, it introduces a need to consider the welfare of all the children concerned in relation not only to discretionary decisions but also in relation to any non-discretionary decision or transaction made under

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the legislation. And, secondly, it would put the welfare of the children, all of the children, as the first consideration.

The noble and learned Lord, Lord Simon of Glaisdale suggested in his contribution to the debate and in a letter to me that the expression "a primary consideration" would mean that those concerned should have primary regard to the welfare of the child. He suggests that this would involve one or other, or both, of two approaches: first, that those concerned should look first at the welfare of the child; and, secondly, that the welfare of the child should prevail unless some other consideration was significantly more weighty. While I understand what the noble and learned Lord wishes to achieve, I do not think that this amendment presents a workable alternative to the existing provision in Section 2 of the 1991 Act. The Oxford English Dictionary defines "primary" as meaning of the first importance, or of the first order in any sequence or process—as the noble Lord, Lord Carter, pointed out. For example, if each child's welfare is a first consideration in each case, it would be very difficult to determine whether the child of the first family or of the second family should take priority when a decision has to be made.

The amendment refers to any transaction or decision under the 1991 Act or this Act, and so it seeks to import consideration of the child's welfare into all decisions on child maintenance. But, as I hope to persuade the House, this is meaningless as it applies to decisions where there is no discretion. I think it might be helpful if we considered for a moment what that would mean in practice.

Let us look at the way the amendment would affect the decision-making process in relation to the maintenance assessment itself. As part of the assessment-making process the agency would be required to establish whether there were any matters relating to the welfare of the children in either of the households concerned, or in any of several households in some cases. They would then have to consider what difference welfare of the children should make to the assessment outcome. Here we have several problems. There is no provision in the legislation relating to the formula for the assessment to be varied for discretionary reasons other than under the departure system introduced in this Bill. In effect, therefore, having decided that the formula amount is wrong in the light of the welfare needs of one or more of the children, the agency cannot do anything to adjust the amount in payment.

Notwithstanding this difficulty, let us consider how the agency might find that the assessment needed to be altered. In some cases, the agency might decide that no maintenance should be paid by the absent parent so that his own children living with him did not suffer the reduction in income which an increase in maintenance payments would cause. This, however, would lead to difficulty for the parent with care and her children. She might argue that instead of the absent parent being discharged from his obligation, he should in fact pay

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more because of the welfare needs of the children living with her. It is not clear how the agency would decide which child's needs took priority—

Lord Simon of Glaisdale: My Lords, the noble Lord will remember that I drew his attention to a case that was decided in 1926 which makes it clear, even if the word "primary" does not, that there may be other considerations. That also takes care of the case where there are two children both of whose welfare must be considered. The decision-maker must look at both children as a primary consideration and must balance the two. I believe that that is taken care of by the amendment.

Lord Mackay of Ardbrecknish: My Lords, I appreciate the reference to the 1926 case. I know that the noble and learned Lord regards it as relevant. The judge held that the statutory phrase "first and paramount" did not preclude other considerations. However, that case was heard quite a long time ago, in an era when parents' rights were all-important. The Children Act 1989 sought to move away from rights over a child to responsibility towards a child. While I appreciate that the noble and learned Lord sees an importance in that case, Re Thain, I am not sure that I can agree with him, given the long passage of time and the quite different circumstances of today. Perhaps I may—

Lord Simon of Glaisdale: My Lords, the noble will remember that ultimately it was a decision of the Court of Appeal, and so far as I know it has not been dissented from in any way.

Lord Mackay of Ardbrecknish: Yes, my Lords, the noble and learned Lord is correct. However, my point still stands. The case was settled all those years ago in quite a different climate. We have moved on from there. That may indicate that I do not give the primacy to the opinions of courts of some time ago that perhaps I ought to give. I hope that the noble and learned Lord will forgive a non-lawyer for deciding that perhaps we ought to try to look at the world of today, and not the world as it was when that case was determined in 1926.

Baroness Seear: My Lords, it might be considered that we have moved back.

Lord Mackay of Ardbrecknish: My Lords, on anybody's arithmetic, 1995 is moving on from 1926.

As I was saying, it is not clear how the welfare of each child would be the first consideration.

On the other hand, there may be a situation where the absent parent has no second family. The welfare of the child consideration in that situation might result in a decision to maximise the payments to the child at the expense of the needs of the parent.

I have already said that the agency has no discretion, even after this amendment, to vary the answer provided by the formula except in so far as the departure provisions in this Bill will introduce discretion. And so the obvious question is: why would it be necessary for them to consider this matter at this stage, reaching decisions that they cannot implement? I find it difficult to see how the agency can consider welfare when it has

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no discretionary power to change the outcome. Once the assessment has been completed, the absent parent is requested to start making payment. If he fails to do so, the question of enforcement action will arise. At this stage, discretionary decisions may be needed, and at that time the welfare of the children concerned will be considered. The existing legislation and wording of Section 2 of the 1991 Act already deals with that.

I hope that this example gives an indication of the difficulties that could arise if this amendment were accepted. As I said on Report, the formula takes proper account of the financial needs of the children, both those for whom maintenance is an issue and other children in the households concerned. The formula provides for various allowances in exempt and protected income. Indeed, through the allowance in protected income it provides for the second wife. It provides for her own living expenses rather than for her as a carer of the children. That matter exercised the noble Earl in an earlier debate. So the formula caters for the varying ages and special needs of the children. I believe that it was the aim of Parliament in 1991 that the welfare of the child, in the sense of the child's proper support, should be achieved through the introduction of a formula based on objective criteria rather than discretion. I believe that that continues to be the best way to deal with the vast majority of cases. It would not be helpful to the children for whom maintenance is due to return to a situation in which their chances of receiving maintenance depended on a discretionary decision.

The noble Lord, Lord Carter, asked me how that worked on the ground. From the time that staff begin working for the agency their training stresses the importance of consideration of the welfare of the child and explains its relevance. My honourable friend, Mr. Burt, who was Parliamentary Under-Secretary of State, explained to the Committee in another place that discretionary decisions must bear in mind the welfare of any affected children. Throughout the guidance and bulletins issued by the agency for staff exercising decisions on behalf of the Secretary of State and in guidance issued by the Chief Child Support Officer, those requirements are reinforced at every stage where a discretionary decision must be taken—for example, in relation to the requirement to co-operate and stages in the enforcement process.

In Committee, I said that I had no evidence to suggest that officials were failing to consider the welfare of the child where it was appropriate to do so. However, we are in the process of preparing more comprehensive guidance, which draws together in one place the various issues in relation to welfare that should be borne in mind when discretionary decisions are made. The agency makes most of its manuals available to advisers and others on request. That further guidance on the welfare of the child will also be made available on request in due course when it is drawn up.

I hope that I have persuaded your Lordships that this amendment would introduce significant difficulties into the child support system with no beneficial consequences to the children. With that explanation, I hope that the noble and learned Lord will feel able to withdraw his amendment.

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