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4.30 pm

Lord Henley: My Lords, perhaps I may put it in the words of P G Wodehouse: they may not be exactly disgruntled but they seem far from being gruntled. I was making the point that the noble Lord may have to do a little building of bridges. We are grateful for what he gave us and no doubt the Liberals are as well. In that spirit of compromise, I beg leave to withdraw Amendment No. 4.

[Amendment No. 4, as an amendment to Amendment No. 3, by leave, withdrawn.]

[Amendments Nos. 5 to 7, as amendments to Amendment No. 3, not moved.]

On Question, Amendment No. 3 agreed to.

Lord Bach moved Amendment No. 8:

On Question, amendment agreed to.

Clause 21 [Commencement]:

Lord Bach moved Amendment No. 9:

On Question, amendment agreed to.

The Schedule:

Lord Bach moved Amendment No. 10:

On Question, amendment agreed to.

An amendment (privilege) made.

Lord Bach: My Lords, I beg to move that this Bill do now pass.

Moved accordingly, and, on Question, Bill passed, and sent to the Commons.

Child Maintenance and Other Payments Bill

4.31 pm

Baroness Royall of Blaisdon: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Child Maintenance and Other Payments Bill, has consented to place her prerogative

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and interests so far as they are affected by the Bill at the disposal of Parliament for the purposes of the Bill.

Read a third time.

Clause 11 [Review of the status of the Commission]:

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord McKenzie of Luton) moved Amendment No. 1:

The noble Lord said: My Lords, I shall speak also to the amendments grouped with Amendment No. 1. They are both minor and technical and make clear the implementation process by which we will commence certain provisions.

Clause 11 provides that the Child Maintenance and Enforcement Commission be established as a non-departmental public body with Crown status. Noble Lords will remember that this status will be reviewed after three years. The amendment clarifies that should the commission cease to be a Crown body following this review, the order will be made by statutory instrument.

Clause 62 provides commencement dates for certain provisions within the Bill. Subsections (1) and (2) provide specific dates for when a few certain provisions will come into force. Subsection (3) provides that provisions not covered in subsections (1) and (2) shall come into force as and when the Secretary of State makes an order by statutory instrument. Amendment No. 4 inserts a further subsection to clarify that such an order may include transitional provision or savings. This is a standard provision and will streamline the staging of individual provisions being commenced. For example, when Section 6 repeal is commenced, it is necessary to include in the commencement order provision for existing cases to be continued as if they had been private applications. I beg to move.

Lord Skelmersdale: My Lords, we on this side of the House have no objection to these two sensible amendments. However, I would like to pick the Minister up on one tiny point. I understood him to say that when CMEC ceases to exist, then the order will be passed. I am sure he meant to say that when the Government decide that the organisation ceases to exist, then the order will be laid.

Lord McKenzie of Luton: My Lords, perhaps I may explain what I said. The amendment clarifies that should the commission cease to be a Crown body following the review by the Government, the order will be made by statutory instrument. I hope that has clarified the matter.

Lord Skelmersdale: My Lords, the review does not cause the Crown body to cease. What causes it, surely, is the Secretary of State’s intention.

Lord McKenzie of Luton: My Lords, that is right, of course, but it follows the consequences and the review.

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Lord Kirkwood of Kirkhope: My Lords, I also understand the reason for the two government amendments, but if the review finds that a change is required, will the statutory instrument proposed in this group of amendments be made by the affirmative, as opposed to the negative, procedure? It is not clear to me, as the amendments are worded, which way around it is. I hope the Minister can reassure us that, in the eventuality, it will be done by the affirmative and not the negative procedure.

Lord McKenzie of Luton: My Lords, I am happy to confirm that it will be by an affirmative process. That is right, given the nature of the decision.

On Question, amendment agreed to.

Clause 35 [Registered maintenance agreements: Scotland]:

Lord Kirkwood of Kirkhope moved Amendment No. 2:

The noble Lord said: I shall speak also to Amendment No. 3 in my name and the important additional and wider amendment in this group in the name of the noble Lord, Lord Skelmersdale. This issue is carried over from Report. It is an important attempt at the last minute, under the procedures of this House, to take account of what I believe are the special circumstances of Scottish civil procedure.

Amendments Nos. 2 and 3 are much narrower than Amendment No. 19. They relate to Clause 35, which deals exclusively with registered agreements in Scotland. Minutes of agreement registered in the Books of Council and Session are enforceable ab initio in a way that puts them in a separate category; indeed, law relating to the Child Support Agency has, in many of its facets, been distinct and separate north of the border. Therefore there are circumstances where we should look carefully at Amendment No. 2.

The amendments would leave minutes of agreement registered in the Books of Council and Session outside the CMEC remit for four years across the jurisdiction of Scotland. That would take a very small number of often complicated cases out of the new commission’s hands. If the Government cannot see their way clear to going so far as that, I wish to make a plea. Although Clause 41 provides an opportunity for pilot schemes, they would be restricted to a two-year period, and I do not know that that would give anyone a chance of working out whether the provision was helpful. Still, my suggestion is potentially a pilot scheme type if the Government are not prepared to go for the full four-year period proposed in Amendment No. 2.

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I understand that the Minister was as good as his word and kindly agreed at the last minute to meet some of the specialists from the Law Society of Scotland. Alas, the follow-up meetings have not been able to take place in the recess in advance of Royal Assent being given to the statute, but he could help the House by explaining how those discussions went. The least that he might consider doing, if he does not accept the amendments, is to talk seriously to the commission about the prospects of what might be a pilot or might not, and to continue to explore the possibilities that are available north of the border, having regard to the special civil procedural differences that apply there, to see whether there is some way of accommodating some of the concerns that are at the forefront of the minds of some of the key practitioners in Scotland. I beg to move.

Lord Skelmersdale: My Lords, far be it from me to get involved with the expertise of the noble Lord, Lord Kirkwood, based on his extensive background in legal practice in Scotland on the subject of child maintenance. I therefore wish to degroup my Amendment No. 19 from the Scottish provisions, because it covers an entirely different point and is relevant purely to England and Wales rather than to Scotland.

Lord McKenzie of Luton: My Lords, I thank the noble Lord, Lord Kirkwood, for the amendment, which, as he explained, seeks to extend the current period of 12 months during which parents with minutes of agreement registered in the Books of Council and Session or the sheriff court books may not apply to the commission for a maintenance calculation. The amendment would prevent those parents applying for a period of four years.

The merits of minutes of agreement as a means of settling child maintenance have been rightly discussed at some length during the passage of the Bill. As the noble Lord indicated, I have also recently discussed the matter in some detail with the Law Society of Scotland. I recognise the value of this uniquely Scottish instrument; indeed, we have amended the Bill at an earlier stage to clarify its role in the child maintenance system north of the border.

As we discussed in Committee and on Report, the 12-month rule has two main purposes: first, if agreement between parents breaks down, it provides a swift and readily available route into the statutory maintenance system so that children are not left for considerable periods with either no maintenance or inadequate arrangements. Secondly, it encourages the concluding of agreements that contain levels of child maintenance broadly consistent with the amount calculated under the statutory scheme.

I recognise the very special nature of minutes of agreement and the important differences between the Scottish legal system and that in England and Wales. As I mentioned earlier, I met the Law Society of Scotland to discuss this, and my officials will continue the dialogue.

However, while we recognise that registered minutes of agreement have many advantages, our view remains that if circumstances change and the

2 Jun 2008 : Column 33

original agreement needs adjustment, difficulties may arise, and children may be stranded with inadequate arrangements that no longer work. There are particular problems with varying registered minutes of agreement where, for example, the parents have not been married before separation.

I make it clear that the commission does not wish to intervene to disturb maintenance arrangements that are working well. Parents must decide whether their children’s interests are best served by the provisions of a registered minute of agreement or by a maintenance calculation made by the commission or by some other route. We do not wish to restrict any effective and agreed maintenance arrangements, in whatever form, to a year, four years or any other period. The Government’s view remains that the 12-month rule is the right policy to ensure a regular flow of income for the child where the parents have separated. A 12-month period strikes the balance between giving alternatives to statutory maintenance arrangements a chance to bed in and work, and providing a means to resolve difficulties quickly and keep payments flowing.

That may disappoint the noble Lord. While I cannot offer the prospect of a pilot, I can certainly offer that of continuing engagement with the Law Society of Scotland. On that basis, I hope that he will feel able to withdraw the amendment.

Lord Kirkwood of Kirkhope: My Lords, I thank the Minister for his reply and for the trouble that he took in considering again this important question. It will continue to be an issue, and I hope that he will keep it under careful review, but on the basis of what he said, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 62 [Commencement]:

Lord McKenzie of Luton moved Amendment No. 4:

On Question, amendment agreed to.

Schedule 4 [Changes to the calculation of maintenance]:

Lord Skelmersdale moved Amendment No. 5:

The noble Lord said: My Lords, this may be thought to be a curious piece of drafting, but it provides a hook on which I can develop an argument. Since Report, I have been made aware of a very disturbing incident which does not appear to be covered by the current wording of paragraph 6 of Schedule 4. The non-resident father of a young child wrote to me to explain that, between September 2006 and June 2007, he had had continuous weekly contact with his child. During that period, there was in place a very amicable private maintenance arrangement whereby he paid his

2 Jun 2008 : Column 34

former partner £50 a week. In June 2007, the mother of his child, who was the main carer, was advised by the CSA that such level of contact should entail the non-resident parent paying only £35 a week. She reacted forcibly by limiting the father’s contact with his son so that she could continue to receive the £50 a week. The three people involved—the father, the mother and, most importantly, the child—are all losers in this case.

4.45 pm

Baroness Hollis of Heigham: My Lords, we need just one more piece of information. Is the parent with care to whom the noble Lord refers on benefit? His opening remarks seemed to suggest that she was not, in which case the arrangements could go undisturbed, but he then referred to the CSA, which suggested that she was. Could he give us a little more information?

Lord Skelmersdale: My Lords, I am only relating the facts as presented to me in the letter. I do not know the answer to the noble Baroness’s question. But the point is, surely, that even if the mother—or, indeed, the father—was on benefit, the amicable arrangement could or should have continued.

As I was saying, the three people involved—the father, the mother and, most importantly, the child—are all losers in this case, all due to the intervention of the CSA. I tabled the amendment to discover whether the reworded schedule or the Bill as a whole would prevent such a case recurring. If I have understood the addition to Schedule 4 correctly, adding the words “has been” would mean that if a shared care arrangement was operating in the best interests of both estranged parents and the child, CMEC would not be able to disturb it. I hope that the Minister will be able to tell me that I am right. I beg to move.

Lord McKenzie of Luton: My Lords, I thank the noble Lord for tabling this amendment, the import of which I understand a little better having heard him speak to it. The amendment would mean that when there had been shared care of 52 or more nights in the preceding 12-month period, the amount of child maintenance would be reduced. This amendment, which would apply to basic or reduced-rate cases, mirrors existing arrangements to the extent that currently, in most cases, the Child Support Agency will look at care arrangements over the previous 52 weeks. However, there is a significant difference between those provisions and this amendment.

We believe it is right that, at the time of setting maintenance liability for the next year, a reduction should apply only if the parents intend to continue shared care. The effect of this amendment could be to allow such a reduction to apply even though shared care had already ceased by the time the maintenance calculation was made. I do not believe that that is what the noble Lord sought through this amendment, but that would be its import. We believe that substantial shared care should be reflected in maintenance calculations. This is, admittedly, a difficult area, which we have debated in Committee and on Report, but there is no clear consensus on what the shared care rules should be. That is why we have left those rules

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largely unchanged. The impact of shared care on liabilities has the potential to add to disputes between parents, although we would hope that they would always put the benefits to the child before any financial consideration.

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