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Grand Committee

Tuesday, 29 January 2008.

The Committee met at half-past three.

[The Deputy Chairman of Committees (BARONESS FOOKES) in the Chair.]

Child Maintenance and Other Payments Bill

(First Day)

The Deputy Chairman of Committees (Baroness Fookes): I make the usual statement: if there is a Division in the Chamber, I shall adjourn the Committee immediately and it will resume after 10 minutes.

Title postponed.

Lord Kirkwood of Kirkhope moved Amendment No. 1:

(a) to affirm the right of children to be maintained by their parents;(b) to affirm the obligation of parents to maintain their children;(c) to affirm the right of persons with care of children to receive financial support in respect of those children from non-resident parents; and(d) to ensure that children share in the standard of living of both parents whether or not they are living with both or either of them.(a) to ensure that obligations to birth and adopted children are not extinguished by obligations to stepchildren;(b) to provide that the level of financial support to be provided by non-resident parents for their children is to be determined according to their capacity to provide financial support;(c) to provide legislatively fixed standards in accordance with which the level of financial support to be provided by non-resident parents for their children should be determined;(d) to enable persons with care of children to receive support in respect of those children from parents without the need to resort to court proceedings; and(e) to provide a system whereby child maintenance payments can be collected by the Commission, and paid by the Commission to those entitled to the money.(a) to permit parents to make private arrangements for the financial support of their children; and(b) to limit interference with the privacy of persons.”

The noble Lord said: It is my pleasure to open this important Grand Committee stage of the consideration of the Child Maintenance and Other Payments Bill. I shall speak also to associated Amendment No. 3 in my name.

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I am advised that I have to declare that I no longer have any personal, financial, residual or other interest in the proceedings of the Bill. Those colleagues who were present at Second Reading know that I made an application to seek to join the board of the Child Maintenance and Enforcement Commission. The bad news is that the application was rejected; the good news is that was done very quickly. The application was treated well within the 12-week response time for applications to the Child Support Agency; indeed, I think that it was done in about 12 minutes, rather than 12 weeks. I therefore look forward to the publication of the quarterly statistics tomorrow, and hope that all applications to the Child Support Agency in future are dealt with with such dispatch. For the avoidance of doubt, I say that I have no other pecuniary interest in the proceedings of the Bill.

Being a little obsessive about this subject, I may stray into making long contributions that try your Lordships’ patience, but I shall try not to do. I am pleased that we have been allowed to give slightly wider consideration than Second Reading allows not of what the commission is set up to achieve, because that is what Clauses 1 and 2 are about, but, having regard to the background of this troubled public policy area during 17 years—I have been involved in most of it—of where we have been, how we got here and what Parliament is trying to do. The Bill is clear: it is using as a template the Child Support Act 1991, which was configured for an entirely different time. As parliamentarians, we should at the outset make the important point to the department that this is a pretty rotten way to generate legislation. Pouring 38 clauses back into an Act that was in gestation in the department in the mid- or late-1980s to deal with entirely different circumstances and trying to back-amend it and ignore the 1995 and 2000 legislation do not add up to transparency in the legislation-making process and make it harder for people, unless they are specialist lawyers, to follow exactly what is going on in this important area of public policy.

We are left with that as a device. It is a shame, because we have had plenty of time to anticipate this legislation. I would have much preferred, as I think would all of us as parliamentarians, a free-standing Act which made sense in its own right. However, this is what we have; we have to make sense of the shape of the legislation that faces us in this Committee; and we will try our best.

The past 17 years have been a demonstration of policy failure. It is irrelevant whose fault that is, but I have not recently come across anyone interested in this area who thinks it has been anything other than a pretty abject failure. This is the third time of asking; we are trying to do the same thing in 2008 that we did unsuccessfully in 2000. We are focusing almost exclusively on the operational side of what is being done and the services that are available to parents with care and non-resident parents. I ask myself—as should the Committee, before it goes any further—whether that is sensible.

The Bill is about maintenance and enforcement and it sets up a commission, but is it about children? There are some amendments from colleagues in other

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parts of the Committee, and there is a sense that we should be thinking more about children and less about operational efficiency—not that operational efficiency is not the key to getting some of this policy right. We do not think enough about children. The new clause seeks to redress that by saying what Parliament wants. Clauses 1 and 2 state clearly the objectives of the commission we are creating, but there is a step before that, which is about what public policy should be and what we as parliamentarians want the commission to do as a policy objective, not just as operational requirements.

I have had this argument with Ministers before, and they always say, “We don’t do policy in statutes in our system”. I do not think that is true. There is evidence in the child support legislation that there are circumstances where policies are set out, and discretion and administrative decisions are made on that basis. It is necessary to have a policy statement at the beginning of the Bill to make it more effective in the future. The department may say that it is too late to change now, but that is not the Committee’s fault; the Bill has been knocking around the department for two or three years in one form or another. It is a carryover Bill and has had twice the amount of time that is normally allocated to Bills in the parliamentary process, so there is no excuse—there has been time to look at other ways of doing this. The department will say that it is about securing operational efficiency and I agree, but it should not be about efficiency to the exclusion of the policy and everything else.

I shall start by quoting an important article by Professor Nick Wikeley entitled Child Support Reform—Throwing the Baby out with the Bathwater?. He came to this conclusion about the failure of the policy to date and the potential failure that may be in the Bill we are considering:

That is my case in this amendment, and it needs to be addressed. There is a real risk that the statistics, the bureaucratic objectives and the Secretary of State’s tasks and targets will dictate the policy in the Bill, particularly with regard to the abolition of Section 6.

Colleagues who have studied the Bill will know that we are going to take the policy forward by encouraging people to make their own decision about whether they stay in the system and use the services of the new commission. The sum and substance of the weight of the backlog will almost certainly lead the commissioner designate and his new board to think very carefully about how many people they want to admit to the new system because they are struggling to deal with the numbers already in it.

There are lots of statistics around and I could go on at length, but when I was reading up on all this over Christmas, one or two figures struck me as ones that we should bear in mind all through our proceedings in Committee. A Commons Answer given on 1 October 2007 obviously took its figures from the quarterly statistics issued last September. They show that currently some 881,300 non-resident

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parents are in arrears. Of those, 91,470 owe more than £10,000, while 5,440 owe £50,000 or more. We have more than 800,000 non-resident parents in arrears. If we look at that number the other way around, it means that an awful lot of parents with care are suffering from non-payment. That is the backlog which the new commission is being invited to take on in addition to a new system of assessment and calculation. It will be a good trick if the commission can manage it and I wish the staff well in their work. But if the Committee does not understand, in the course of our proceedings, that the risk of a third public policy failure is high, we are being less than honest about the reality of the situation.

The 1991 Act is not an appropriate platform and the suggestion set out in Amendment No. 1 would help in a number of ways. In plain English, it imports a clear instruction to the commission, seeks to demonstrate what Parliament thinks should happen and sets out both the primary and subsidiary objectives behind it. It is not original as it comes from the New Zealand template; I have amended it as best I can in my amateurish way to try to fit this legislation. I do not argue for a moment that it is technically competent as it stands, but the inference and clear purpose are there for all to see. I think it would help to implement this policy in a better way in the future.

I have come to the conclusion that the new clause points in the direction of a different way of administering the commission; I do not think that the Department for Work and Pensions is the right one any more. I hope that the new clause leads to serious consideration being given to the Ministry of Justice, where a lot of important mediation work is going on, some of which is working and some not. Mediation is an important part of this policy area. However, since we now have a Department for Children, Schools and Families, there is an unanswerable case that child maintenance should be delivered via that route in the future. I certainly do not think that the Department for Work and Pensions has dealt with this area particularly well. I exonerate the noble Baroness, Lady Hollis of Heigham, from that charge; I am not just being nice to her because she is sitting across from me. If I provoke her, she will attack me, and I would be unlikely to survive. But leadership in that department has been virtually incoherent for the simple reason that, since 1997, we have had eight or nine Secretaries of State—a new head of department roughly every 15 months. Each one has had to deal with a big department in which child maintenance represents the outer extreme. That is not the fault of the professionals or the agency, but it is a matter of fact. In my political opinion, it has not had the attention it deserves. There is a worry, too, reflected in my new clause, that this will be even more arm’s length than being at the back end of a big department that changes its leadership every 15 months.

3.45 pm

There is a strong case for taking a new look and for Parliament to say that there are other ways of doing this and of brigading the policy-makers and the commission. If anyone ever had any doubt about that,

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they should read the National Audit Office report in 2006, House of Commons Paper 1174 entitled, Child Support Agency—Implementation of the Child Support Reforms—which was Christmas reading for me. It is a terrible document. I do not know what it looked like before the department agreed it with the National Audit Office, but it is an indictment of the CS2 reforms. One may say that this is looking backwards, but I have an American friend who often uses the phrase “it’s déj vu all over again”—that’s the Americans for you. What will send me to my grave a very unhappy person would be ignoring what is in this report and doing the same all over again. We will get another NAO report after the operational improvement programme is finished in 2009 and there will be a Public Accounts Committee report in 2010. The objective of all this, I hope we are all agreed, is to try to get out of the place we are in and where we have been and try to make the situation better.

The Child Support Agency annual report, which was six months late because of technical difficulties with its client fund account—again for the 14th or 15th year—makes sobering reading regarding the extent of the problems. We should think again carefully about the policy and look at how in a modern sense children’s rights are much more to the fore. The UN Convention on the Rights of the Child has come on stream since 1991 when we first started to think about this. We are not doing the job properly in responding to these circumstances.

I do not want to tax the Committee but I feel strongly about this. We in the Committee would not be doing our job properly if we did not look at what is going on around us in relation to the principles in my new clause. A report was published in the Guardian on 23 January on the British Social Attitudes Survey. I commend it to colleagues. There is nothing new in it, but it is a sobering reassessment of just how volatile and chaotic—in the non-pejorative sense—family life is these days. The noble Baroness, Lady Hollis, who made a powerful Second Reading speech, made a feature of this and made me think about it. Everything she said is reflected in the survey, which takes an annual sample of 3,000 interviews conducted at length across the country by respected researchers. The report states that the survey,

That is the kind of thing talked about at length. The social trends are against us. It will be harder to keep up with this churn. The hamster wheel will run faster.

The original architects of the 1991 legislation—it is easy to say this with hindsight and I was there, so I am as much to blame as anyone else—misunderstood the difficulty not just of doing the calculation but of maintaining the calculation. Coming from a benefit background, as the legislation does—wrongly, I now think—we are trying to keep that up week by week as families change week by week, so we never catch up. The 881,300 non-resident parents who are in arrears will take 16 years, according to my pocket calculator, to be reduced to zero.

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That is where Amendment No. 3 comes in. It is a pretty amateur effort; it was meant to provide a sunset clause; it is not, but it will be by the next stage. The Minister helpfully sent us a letter about the amount that it was costing to raise £1 of income maintenance and projected that to 2016. It will take until then, if nothing else happens, if the new rules come in and if the operational improvement plan works—a very important qualification—to clear the backlog. We are ignoring David Henshaw’s sensible advice to draw a line and get a residual body to bear down on the debt as a separate and freestanding enterprise. That completely destroys the realistic chance of the new body ever getting off the bit.

I have two other references to recent newspaper reports. One was in the Guardian on Friday 7 December about a report done by the Liverpool Victoria—I may have referred to it at Second Reading—about the cost of bringing up children. The cooker pressure is increasing intensely in the cost of raising families. The researchers were quite taken aback by the extent to which an average family had to pay more: they reckoned, at today's prices, it cost £24.30 a day to look after a modern child accurately and well. They forecast that costs could rise by 42 per cent between now and 2012 to an average of £12,500 per year for each child. So the financial pressures under which the clients whom the Bill seeks to serve are increasing.

The third press report to which I refer is a report in the Guardian on 10 December which talked about some important work commissioned by the Ministry of Justice. The University of East Anglia researched conciliation in the courtroom. It found that it helped quite a lot with getting fathers to stay in touch with their children, but it did nothing to reconcile the parents. The researchers suggest that even more cases would have gone back to court, but for the fact that many parents were,

There is a lot of work being done in the Ministry of Justice, and I wonder whether we are taking proper advantage of it.

This is a very important part of our proceedings. I want to make a case, as Amendment No. 1 does, for looking at a much wider objective. I want to enshrine a right that goes beyond what we are asking the commission to do, which merely continues the rights to maintenance. I want to put rights and entitlements in the hands of children and parents in the way set out in the new clause. If we do, that will give the new commission, which will be an arm's-length administrator and much less amenable to future parliamentary scrutiny, a clear idea. If the Bill is to be successful, it needs to be much more focused on the interests, rights and entitlements of children. I beg to move.

Lord Skelmersdale: I believe that over the next few days and weeks the Committee is in for an unusual treat in that we have in front of us the Minister who is responsible for this whole area of child maintenance. He is not the first and he will not be the last. I hesitate to say that because I know that he does not like his job to be referred to as temporary. In his closing remarks, the noble Lord, Lord Kirkwood, did not

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appear to take account of the announcement which the Minister made at Second Reading and which is the subject of the next group of amendments—that is, he will remain in charge with the exception that under him will be a chief executive and a chairman of this new commission. Of course, he will not be responsible for day-to-day operations but then he never has been. However, he will be responsible for direction and guidance and for seeing that things go as the policy directs.

The other reason why the Committee is in for a treat is that over the past few years the Minister has shown himself in my presence to be very careful to listen and, once he has made up his mind that the arguments are correct, to act upon them. Until now, he has had to go through two other Ministers: the Secretary of State of the time and the Minister responsible for the Bill, who, in the two cases that I am thinking of, as he will remember, were Members of another place. Here, we have direct access and I look forward to it. The Minister says from a sitting position that he is not sure that he is, but I do not know why not. He is, for once, in a position of great power and I am all for it.

It was Maria in “The Sound of Music” who said:

The noble Lord, Lord Kirkwood, almost started like that because in his opening paragraphs he referred to what we are all talking about—that is, children. I shall come to the fact that children and their maintenance in the widest terms already exist in the legislation. However, it seems that the noble Lord has sought to go one better and put down a shopping list not only of what subjects are in the Bill but of what he would like to see in it. He described this as a “policy framework”, if I may use shorthand—I see him nodding. Not being very familiar with my thought processes, the noble Lord probably does not know that I am on record more than once as saying that I do not believe in shopping lists, nor purpose or objective clauses, even if they are basically correct. That may or may not be because many years ago I was, with different responsibilities, in the Minister’s position. I am sure that this first debate will help our discussion on the Bill, not least because it behoves us to remember some basic facts on child maintenance that get totally forgotten, or at least ignored,.

We are not really starting from here. However, we are, as they say, where we are. The Bill is legislation by reference, and I agree with the noble Lord, Lord Kirkwood, that it would be helpful to our debates to remember that this is an amending Bill. It amends the Child Support Act 1991 and, in part, the Child Support, Pensions and Social Security Act 2000.

4 pm

The 1991 Act, unlike the 2000 Act, in neither of which did I take any part, starts with three guiding principles. These seem to be perfectly adequate. Section 1(1) of the 1991 Act—I see the Minister has it in front of him—states:

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Until now, “maintenance” has meant cash maintenance. I note the amendments tabled by the noble Lord, Lord Northbourne, and the two noble Baronesses which, quite correctly, seek to widen the meaning of the word “maintenance”. I shall discuss this when we reach the appropriate stage.

Subsection (2) goes on to say:

Subsection (3) states that,

with whom we are chiefly but not entirely concerned—

If that does not set out the background to what we are to discuss over the next few days and weeks, quite honestly, I do not know what does.

The Act goes on in Section 2 to put the welfare of children at the centre of what the Act—now Acts—seeks to achieve. That it did not achieve its objectives is not the fault of those first two sections. I therefore ask what is in the amendment of the noble Lord, Lord Kirkwood, that we need to add to the duties and general principles of this composite Act. After all, the first three parts of the Bill, with their accompanying schedules, plus Part 5, are purely and simply amending provisions.

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