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Arguably, the commission should be under a legal duty to secure compliance in all cases. I understand that there may well be practical difficulties with this. I offer the example of the non-resident parent having no money, which might make compliance impossible in some individual cases. I want to be able to take account of difficult exceptions because I do not want to pass an unenforceable Bill but, as it is currently phrased, the scope for avoiding compliance with the law is simply too loose and too wide. Can the Minister give examples of when he thinks it would be appropriate for the commission to ignore the requirement for non-resident parents to meet their statutory obligations?

Amendment No. 36 is an attempt to tighten and strengthen the link between the work of CMEC and its objectives. I am forced to promise yet another amendment, one to put in the Bill a precise and exact proviso. With such wishy-washy phrases as “aim to pursue” and “have regard to” the Bill can make a claim towards its grand and good objective of improving child maintenance arrangements for those children living apart from one or both parents—or can it? Those phrases, perhaps conveniently, do not bind the Bill to its objectives and therefore create room for the possibility of under-achievement. I am sure the Minister would agree that there is simply no point in passing the Bill unless noble Lords and Members of another place are confident that it will realise what it promises. Her Majesty’s Government’s record on child maintenance so far has not been exemplary and it is our duty to the children who rely on financial assistance that it should become so.

We on these Benches are not going to give Her Majesty’s Government any opportunity to duck out

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of their commitments without being held to account. I am convinced, of course, that the Minister would wish for that too, and thus I cannot imagine that he will have any objection to my speaking and adding my name to the last amendment in this group tabled by the noble Lord, Lord Kirkwood.

Lord McKenzie of Luton: I am grateful to noble Lords for tabling the proposed amendments, each of which I shall address in turn. Amendment No. 23 proposes that the main objective of the commission should be extended to include a subsection requiring the commission to secure the payment of arrears owed under the Act. I understand these concerns but I believe that the amendment is unnecessary. The commission will already be required to pursue all arrears, regardless of when they arose, under the objective which requires it to secure parental compliance with the Child Support Act 1991 where appropriate. Indeed, the Bill brings in new enforcement and debt management powers to prevent new debt building up and to enable accumulated debt to be recovered.

I should also like to take the opportunity to reassure noble Lords that a range of targets will be published in the commission’s business plan that will underpin each of the commission’s objectives, and these targets will be agreed between the department and the commission in a process which has not yet begun. While we cannot commit to anything at this stage, we would expect the collection of outstanding debt to be part of the range of targets.

Returning to the current drafting of the subsidiary objective, the words “when appropriate” are needed because Section 2 of the 1991 Act requires the commission to,

when exercising discretionary powers. Indeed, this is a provision to which the noble Lord himself referred at the start of our deliberations. This must take precedence over other considerations. If we removed the words “when appropriate” as suggested in Amendment No. 27, the commission would be caught between two absolute requirements: always to secure compliance under the Act and always to have regard to the welfare of any child. The current drafting of Clause 2 prevents that situation arising, thus ensuring that the commission can always have regard to the welfare of the child.

The noble Lord, Lord Skelmersdale, pressed me on specific examples. There could be situations where pressing a non-resident parent could have a particularly difficult impact on the welfare of a child in his new family; or there could be issues of violence around the potential family situation which could be exacerbated by the pursuit of debts. If the noble Lord presses on why it should be the commission that makes that judgment, it is because the commission would generally be possessed of the information best to make that judgment.

6.30 pm

Finally, Amendment No. 36 seeks to strengthen the link between the commission’s objectives and the functions. I can reassure the noble Lord that by

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requiring the commission to pursue and have regard to its objectives, it can only exercise relevant functions in a way that it believes will help meet them. The proposed amendment to ensure that the commission is bound by its objectives when exercising a relevant function would do nothing to change or strengthen this. Furthermore, the current wording reflects standard drafting for such matters rather than any weakness in the link between objectives and functions. There is, for example, a similar approach in the Financial Services and Markets Act 2000. In the light of that explanation, I ask the noble Lord to withdraw his amendment.

I turn to some of the additional points that were raised. The noble Lord, Lord Kirkwood, mentioned my appearance before the committee in another place and made reference to provisions in accounts. We were then reinforcing the point that the commission should be dealing on a case-by-case basis with individual debtor situations. Obviously, when accounts are drawn up, a judgment is always made about the extent to which a debt book is collectable. It would be normal in those accounts to make a provision against the gross total. It does not mean that any particular debt has been written off and will not be pursued; it merely makes an aggregate judgment about the extent to which, ultimately, that debt will be recovered.

I should make it clear that any write-off of debt would require the consent of the parent with care. A qualification might be where the non-resident parent is deceased and the estate is not in a position to deal with the amount due. At the moment, it cannot be, but there is a provision in the Bill which will enable the estates of deceased persons to be pursued. That is why that provision is there.

The Bill includes a range of new powers which the commission will be able to use for the collection and management of historic debt. However, we have listened to concerns raised throughout the Bill’s progress and we have decided to introduce an amendment which we will discuss later in Committee. The amendment will ensure that all new and existing enforcement mechanisms, including liability orders, can be applied to debt at any age, in particular debt which accrued before July 2000 and which we had not previously been able to use court-based enforcement tools to collect. I stress that there are no plans to write off debt where a parent with care wants it collected.

The noble Lord, Lord Skelmersdale, asked about the definition of “child”. For child maintenance purposes it broadly follows the child benefit qualifications. It is therefore up to the age of 16 and after that it depends on whether the child is in education and the type of education in which he is engaged.

Lord Skelmersdale: In other words, the age is about to go up. Is that right?

Lord McKenzie of Luton: It depends. The noble Lord asserts that we are raising the school-leaving age—I am not sure whether he put it quite in those

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terms—but that is not quite what is proposed. The Government are looking at a range of measures to encourage people to stay at school or to go into some sort of training or further or higher education. There has been a recent amendment to increase the age to 20 as regards child benefit. I am looking for support at the back.

Lord Skelmersdale: I do not want to pursue the point now. Perhaps the Minister will consider all the complications involved in the 16 or 18 age limits, or even beyond. In certain circumstances, a mentally handicapped child is expected to stay on at school until 19, which is yet another complication.

The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): There is a Division in the Chamber so we shall suspend the Sitting for 10 minutes.

[The Sitting was suspended for a Division in the House from 6.34 to 6.44 pm.]

Lord Skelmersdale: When we broke off I was yet again quizzing the Minister. I am tempted to say “teasing” but it was not a tease; it was a valid point about the end of childhood as CMEC would see it and the statutory basis for it. I had almost got it out of my mouth that as this is such a complicated subject he might like to consider writing to me, which I would find perfectly acceptable.

Lord McKenzie of Luton: I am grateful for the opportunity. I shall certainly do so and copy the letter to other noble Lords who have spoken or shown an interest today. Having been saved by the bell, I shall take the opportunity to make reference to Clause 39, which indicates what the meaning of “child” is for the purpose of these provisions. I shall make sure it is covered in correspondence.

Lord Kirkwood of Kirkhope: I am happy to withdraw the lead amendment in this group, but perhaps the Minister can clarify one thing for me. I understand what he said about the debt position but I am not clear yet whether it is the overall intention, delivered by whomsoever—whether it is the Child Support Agency, the commission, the Government or a combination of the three—that at some point each case will be looked at by someone. While there will be no bulk treatment, will people get a reckoning? However this is delivered, at the end of the day will every case be looked at and either written off with an explanation or activated and enforced? Will that happen in every individual case? If the answer is yes, I will happily withdraw the amendment.

Lord McKenzie of Luton: My understanding is that these matters will be dealt with on an individual case-by-case basis. I cannot in all honesty say to the noble Lord that there may be no circumstances where you get to some sort of residual pot—we just do not know what will happen operationally—but the intention is to look at them on a case-by-case basis, especially if they are interim assessments possibly to generate a negotiation. But always it will require the parent with care’s consent before debt is written off.



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Lord Kirkwood of Kirkhope: On that basis I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Northbourne moved Amendment No. 24:

“( ) to promote among parents and prospective parents awareness that every parent has a responsibility (shared with the child’s other parent) to do their best to provide for the welfare 8and supportive parenting of their child;”

The noble Lord said: I shall speak also to Amendments Nos. 25 and 35. Amendments Nos. 24 and 25 suggest an additional objective for the commission. They would require it to set child maintenance in the context of the wider responsibilities of parenthood, while Amendment No. 35 defines those responsibilities. The amendments would impose a duty on the commission to inform and educate the public, especially fathers and prospective fathers, about their responsibilities for their child’s welfare and supportive parenting.

To be successful, any society must make suitable provision to ensure that its children get the nurturing, education and parenting they need to fulfil their potential. As a society, we must be clear about what part we expect parents to play in this process. If not, we risk the state being overwhelmed by the need for surrogate parenting because of a lack of parents to care for their children themselves.

In this country today there are significant groups of fathers who do not accept or do not understand why they have any responsibility for parenting their child. The kind of groups I have in mind include fathers who have fertilised a child having been misled by the mother about contraception or some reason of that kind; fathers who have been brought up in a macho culture which believes that to father a child is a scalp on your belt and you have no responsibility towards the child thereafter; or immigrant fathers in this country who have come from societies where children are brought up by the village, the community or the tribe, with the father having little or no involvement.

The law is not clear on the responsibilities of parenthood. The Children Act 1989 defines a parent’s responsibility thus:

What does that mean? In a recent Question, I asked the Government for a further definition. Their reply was that the research necessary to answer the question would be “too costly”. That Answer makes it abundantly clear that a simple definition is needed to help parents understand their obligations.

In striking contrast to the 1989 Act, the Children (Scotland) Act 1995 defines parental responsibility clearly and concisely, stating that,

A parent has the responsibility also,

Why should Scottish children have the advantage of their parents knowing clearly what their parenting responsibilities are while children south of the Border do not? The definition in Amendment No. 35 is derived directly from the wording of the Scottish Act.

The amendments would clarify and promote understanding about the law as it stands, and about the shared values of our society and the custom of the country in respect of the role and responsibilities of parents. By making both parents’ obligation to their child and to society absolutely clear, and by promoting knowledge on the subject, the amendments would, among other things, probably significantly reduce the number of claims made to the commission and the number of attempted evasions. They could also help to reduce the sense of injustice which is often caused by the collection of child maintenance from those men who do not know, or were not warned of, their potential liability.

They would serve another important role by making it absolutely clear that in our society fathers as well as mothers have parenting responsibilities to their child. They would put firm ground under the feet of teachers in schools whose job it is to provide relationship education and lead discussion with boys about sexual behaviour and their role as future parents. They would serve the same purpose for those whose job it is to prepare male migrants seeking to acquire citizenship in this country. I beg to move.

Baroness Hollis of Heigham: Perhaps I may ask the noble Lord a simple question. He asked why children in Scotland should have protection that children in England are denied. Does he have any evidence that it makes any difference to the outcomes of parental behaviour?

Lord Northbourne: I am working away to find evidence, but, so far, I have none. I suspect that the reason is that the legislation is working so well in Scotland that there are no complaints.

Baroness Butler-Sloss: I have put my name to the three amendments. There is no definition of parenting in any primary or secondary legislation. It is to be found in a number of cases in the Court of Appeal and in occasional cases in the House of Lords. However, they are not instantly available to most people, particularly not to those who are involved in the unhappy breakdown of their relationship, whether it is a marriage or a partnership. There are practical reasons, in addition to those given by my noble friend Lord Northbourne—I agreed entirely with every word he said—why having a definition in this legislation would be very helpful.

First, in a large number of cases, the money to be paid to children is not the only issue to come before a court or has to be discussed by a mediator or by lawyers in cases where lawyers are involved. When a couple separates, it is usual to look at whether the house or flat is rented or owned and whether the children are to see the non-resident parent—usually

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the father. Contact is extremely difficult to manage if the mother does not have an assurance that the father will pay.

Technically, money and contact are totally separate issues, but as a matter of human reality, the mother usually says, “If you are to see your child, what are you going to pay?”. In cases such as those referred to by my noble friend Lord Northbourne, where the parent—usually the man but not always—does not see why he should pay, there is nothing to point to other than the fact that he should pay because the legislation says that he must. However, there is the important concept that both parents have responsibility for their child and that part of sharing that responsibility is to pay. There is no question but that the mother, as the primary carer, will pay, because usually the money given by a father is not enough to support a child. Therefore, it is very important that the non-resident parent who is asked to pay under legislation is also made fully aware of the concept of the obligation of responsibility.

I wish to make two practical points. If there are lawyers or mediators in the case, they could say, “You are expected to be responsible, as is shown in the legislation”. My noble friend Lord Northbourne and I are hoping to include this in the Children and Young Persons Bill. We want it to be set out clearly across the board that there is responsibility in payment and responsibility in the care of children. Perhaps more importantly, many of these fathers—they are generally fathers—do not have lawyers and will not be in discussion with the mother’s lawyer, if she has one. However, almost certainly a court will be dealing with the separated couple and, after they have separated, will pick up the pieces for them in relation to the rented flat or the owned house and the contact arrangements and so on. Whether it is someone in the magistrates’ court, the district judge or occasionally the circuit judge, he can point to this legislation and say that it really matters. He will say not simply, “You’ve got to pay because the legislation says so”, but, “You have got to be responsible for your children”. The meaning of “responsibility” is set out in Amendment No. 35. We need Parliament to make a statement in primary legislation that responsible parenting matters a great deal in relation to money, children and everything that goes with the breakdown of the relationship between parents.

Even in a case such as my noble friend Lord Northbourne described, where a father says that he did not intend to have children, he has a responsibility under the Child Support Act and this legislation and he needs to be told as well as anyone else that it is not just a money matter. The child is born and the grown-ups have to be responsible for that child. It is the issue of responsibility that my noble friends Lord Northbourne, Lady Finlay and I are extremely keen to push forward.

Although one may think that this is all a bit of a concept and rather vague, I have to tell noble Lords that, having been a lawyer and a judge, I would have been helped, as other judges will be helped, by having this in primary legislation.



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7 pm

Baroness Hollis of Heigham: I hesitate to intervene in an issue where views are strongly held. I suspect that all of us want to see responsible parenting, and anything which can be done to encourage it should be done. But, again, I have a real hesitation about putting what I regard as rhetorical statements in the Bill in the hope that somehow they will affect behaviour. The noble and learned Baroness, Lady Butler-Sloss, said that this would be a great help to judges. However, most of the children we are talking about do not come out of divorce arrangements, so their cases do not go before the courts. They come out of informal or cohabitation relationships—

Baroness Butler-Sloss: Forgive me, but I did say specifically that I was referring to either the separation of a couple or the situation after a marriage breakdown. I am well aware that 40 per cent of children are born in a relationship outside of marriage and I was careful not to limit this to marital breakdown.

Baroness Hollis of Heigham: I accept that, but the point is that most of the children whom the agency will be working with will not come from a divorce situation because usually the parent with care will not be on benefits and therefore the children will already be within the voluntary system. The children whom the CSA, and eventually CMEC, largely deal with are those where the parent with care is on benefit and the man is either on benefit as well or is a fairly low earner, and the relationship is generally casual or one of cohabitation. This is not a matter to which lawyers may usefully point because those are not the children whom we are dealing with.


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