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Lord Northbourne: My Lords, I am grateful to the noble Baroness for her very full reply. I cannot deny that I am disappointed that she did not feel that she could be more positive. I do not accept that Clause 1(2) of the Child Support Act 1991 adequately defines the responsibility to maintain. It suggests one item--the paying of maintenance--which could be a part of the responsibility to maintain. There are other parts.

It is difficult to follow exactly what the noble Baroness said and the legal implications of it as we listen in the Chamber. I shall read what she said but I by no means undertake not to come back to this matter on Third Reading. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 and 3 not moved.]

Clause 1 [Maintenance calculations and terminology]:

Baroness Buscombe had given notice of her intention to move Amendment No. 4:

("( ) Any change in the nature and qualification of maintenance variations shall be agreed and ratified by Parliament before a change can be implemented.").

The noble Baroness said: I shall not move this amendment but I shall move Amendment No. 26 when we reach that point.

[Amendment No. 4 not moved.]

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Schedule 1 [Substituted Part I of Schedule 1 to the Child Support Act 1991]:

Lord Higgins moved Amendment No. 5:

    Page 98, line 15, at beginning insert ("Subject to sub-paragraph (3)").

The noble Lord said: My Lords, Amendment No. 5 is a paving amendment. We then come to Amendment No. 6 which suggests that there should be an upper limit to child maintenance of £200 per week for each qualifying child.

We debated this at some length on 8th May in Committee. It seems to us very important indeed that there should be some limit on the extent to which the absent parent, whether it be male or female, should contribute to the provision of maintenance of each child, which we were discussing only a moment ago.

In this Bill, we are creating something, as I understand it, which does not exist at all in law generally; namely, that the child has a right to have a share of a parent's income. While we wholeheartedly support the basic objectives of the Bill and that both the parent with care and the parent without care should have responsibility for the maintenance of the child, we believe that it is appropriate that the amount which is transferred from the absent parent to the parent with care for use in providing for the children of the relationship should take into account the extent to which the absent parent of whatever sex has income and the extent to which that income should be, as of right, the child's.

If we do not do that, one would imagine that there is clearly a limit which the parent with care could spend on a particular child. In this amendment, we have suggested a precise figure of £200 per week for each child. Of course, that amounts to a considerable annual amount of transference of income from one parent to the other for looking after the child.

However, it is the case that if one goes far beyond that limit--at present the sum involved is completely unlimited--what we would get to a considerable extent is a form of espousal maintenance rather than child maintenance. That gives cause for concern.

The Select Committee in another place considered this issue. The chairman's draft of the report stated:

    "In the final analysis, the child support formula should be clearly seen to be related to the cost of bringing up children and not as a straightforward 'tax' levied on a non-resident parent. We recommend that the Government should re-examine the possibility of inserting in the legislation an upper limit on the automatic application of the revised CSA formula".

As I understand it, in its final report the committee did not reach that conclusion. However, I think there is a great deal to be said for it; otherwise, we would see the transfer of considerable sums from one parent to the other. When one reaches a certain limit, one is bound to have doubts as to whether it would even be possible, let alone appropriate, for the parent with care to spend that particular amount on the child.

I pointed out in Committee that the situation is even more complicated if several marriages are involved, or some marriages and different relationships between a particular individual and a series of partners, married

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or not. I know only too well, from my own constituency experience, that that can give rise to considerable difficulties--not least because there is often a great deal of bitterness between the first and second families. Such difficulties are sometimes exaggerated. Not infrequently, in fact nearly always, the second family finds that the main earner is earning more than he did when he was with the first family. It is rare that the reverse is true. Therefore, the second family tends to think that it should receive more, which complicates matters.

I hope that we might have a sympathetic response from the Minister on this point. Overall, we strongly believe that it is not the task of this legislation to allocate income from one partner to the other. There is the question of whether adequate maintenance is provided--we are talking here in financial terms, not in the terms in which the noble Lord, Lord Northbourne, spoke a moment ago--and of whether it is appropriate that without limit the income of the parent without care should be redistributed to the single-parent family which exists at that stage. I hope that the Minister will respond favourably.

There are other complications. My understanding is that if that is not so, particularly in situations where the parent without care has an extremely high income, there may be repercussions in terms of what the appropriate marital settlement will be and so forth, and whether that will affect that situation. On this occasion, I shall not go into that kind of complication, which can be considerable. The simple point is the one I have already made. I hope that your Lordships will be prepared to agree to it.

Lord Northbourne: My Lords, I support the noble Lord, Lord Higgins, and should like to comment on an interesting and important amendment which relates to the issue of what is meant by the word "maintenance". Is it money being paid over for the maintenance of the child, or for the maintenance of the spouse who is looking after the child? Does the spouse or partner who is looking after the child have any obligation to spend the money on the child? I can think of several cases which have come to me in the context of a small charitable trust with which I am involved in which a deserted mother comes and says, "Here is my child. He is in a fee-paying school and is happy there"--he may be a child who needs special education--"but I do not have enough money to pay for his education".

One can also envisage a situation where a wealthy absent parent pays over a large sum of money. It is possible to conceive of a mother (or indeed of a father who is the resident parent) not spending it on the child. I repeat the question which I launched in connection with my own amendments: what does the word "maintenance" mean?

Earl Russell: My Lords, perhaps I may briefly restate the position of these Benches. After a good deal of discussion we arrived at the common general principle that children should be entitled to share in the increasing wealth of their parents. That means that we cannot support the noble Lord, Lord Higgins, on

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this amendment. However, were he to choose to press Amendment No. 8, he might receive a different answer.

Perhaps I may raise a slight query about the statement made by the noble Lord, Lord Higgins, that there is nothing in law to say that a child is entitled to a share in the income of its parents. I know of at least one court judgment which appears to me to rest on the contrary principle. However, as I have never been able to find a lawyer willing to expound the principles of that judgment, I cannot clarify the point. Before we return to this matter, as we undoubtedly will, perhaps it would be worth while for all of us to try for a clearer understanding of the legal position than we have at present.

Baroness Carnegy of Lour: My Lords, it appears that the noble Earl's party has changed its mind on this point, or at least that the noble Earl has changed his mind.

Earl Russell: My Lords, I thank the noble Baroness for giving way. From when does she think that I have changed my mind or that my party has done so?

Baroness Carnegy of Lour: My Lords, I have not had time to read again exactly what was said by the noble Earl. However, I believe that he began his comments on this amendment by stating that the problem the noble Baroness has is that the Government are adopting a formula-based sense of justice. The more I contemplate it, the more it seems that the Government are saying, all through the Bill, that they have an idea of what a family should be; of what should happen when the family splits up and of the responsibilities of the non-resident parent. They are led to the conclusion that, as the noble Lord now says, the child is entitled to the growing wealth of both parents.

Earl Russell: My Lords, I am grateful to the noble Baroness. That principle was stated by my party before the Bill left the Commons with my prior knowledge and approval. So far as I know, it has never varied.

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