Redesign of Child Support

September 2006

1. Introduction

1.1 Law Centre (NI) is a public interest law non-governmental organisation.  The Law Centre works to promote social justice and provides specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland. 

1.2 We have carefully considered and reflected on Sir David Hensaw’s report “Recovering child support: routes to responsibility” and the Government’s response.  We set out below some general comments in response and address some of the questions which were posed for consultation.

1.3 It has been clear for some time now that the current system as administered by the Child Support Agency (CSA) is not performing as anticipated and we welcome the commitment of the Government to reform the system with the aim of ensuring a more effective and efficient means of reducing child poverty and ensuring parents do take responsibility for the financial needs of their children. 

2. Child Poverty

2.1 One of the key objectives set for the child support system is to “help tackle child poverty”.[1]  We were therefore disappointed at the lack of direction within the Government’s response as to how redesigning the child support system can ensure that it has a positive impact on reducing child poverty.  Clearly, this arises from the omission of this priority as part of the terms of reference for Sir David’s report.  We echo the concerns raised by the Child Poverty Action Group that the terms of reference outlined for the redesign of the child support system focus on parental responsibility and do not specifically refer to child poverty[2]. We believe this review and consultation process creates a significant opportunity to capitalise on the redesign of a system in such a way as to have significant implications on the Government’s ability to meets its child poverty objectives and as such, the focus of any redesign should be clearly on the needs and rights of children and on the reduction of child poverty. 

2.2 Northern Ireland is one of the poorest regions in the European Union, with an estimated 37% of children affected by poverty.  Around 150,000 children are living in poverty in Northern Ireland and research published by Save the Children in 2005 found that almost one in ten, or 32,000, children are living in severe poverty.[3]  The delivery of child support is a key area which, if managed correctly can have a significant impact on the reduction of child poverty in Northern Ireland as elsewhere in the United Kingdom. 

2.3 We would urge further commitment by the Government to put into practice the recommendations made by Sir David that will have a direct effect on child poverty, namely a high threshold of disregard in calculating Income Support; a total disregard in calculating Housing Benefit, including a rate rebate in Northern Ireland and an increase in the flat rate payment for parents with care in receipt of benefits. 

3. Private arrangements

3.3 We recognise that there is a need to more fully support parental autonomy in making arrangements for child maintenance rather than requiring certain groups to use the CSA mechanism.  We therefore welcome the proposed changes to encourage and allow parents to take responsibility for their children and to make their own arrangements for child maintenance.  The current system has not allowed this freedom and has unduly interfered in satisfactory private arrangements leading to unnecessary delays and often, additional distress, for those involved in the process.  

3.4 Equally, however, we recognise that there is still the need for the Government to provide some level of ‘back-up’ for parents who are unable to reach agreement among themselves to ensure maintenance is agreed upon and paid by the non resident parent.

4. Carers on benefits

4.1 We fully support the removal of the requirement to make a maintenance claim through the CSA by a parent with care who claims Income Support or income-based Jobseeker’s Allowance.  We welcome the assurance that the new system would mean that Government “would stop having to treat people differently depending whether they were claiming benefit or not.”[4]  This heralds a long-awaited change in administrative systems that have historically differentiated between people due to their benefit status by ending legitimate and beneficial maintenance agreements when a parent with care claims Income Support or income-based Jobseeker’s Allowance. 

4.2 Sir David’s approach to significantly increase the extent to which child maintenance is disregarded in income-related benefits would not only significantly increase the incentive for parents with care to make an application for child maintenance but it is proposed this approach would also deliver more money to more children.  This change would see the money paid in maintenance going directly to the parent with care (and therefore the child) rather than back to the Government.   This proposes a win-win situation for both parents; the non-resident parent, will see payments directly benefiting their child and the parent with care, will not see his/her benefit income reduced as a result of securing child support. 

4.3 We welcome the increase of the level of the flat-rate payment to £10 a week for parents with care on benefits.  By doubling the current minimum payment this should increase the incentive for parents with care to pursue maintenance, therefore providing additional financial support for the children who may need it the most.  

4.4  We note Sir David’s calculations that disregarding most maintenance in benefit calculations could have a significant impact on child poverty, lifting between 80,000 and 90,000 additional children out of poverty.  This would have a positive impact on the 2010 child poverty target as previously discussed.  We would therefore support a total or at the very least a high level of disregard in respect of benefits.

5. Sanctions and enforcement

5.1 We would welcome a system that will take enforcement seriously and that will not allow for payments to fail to start, dwindle over time or stop to ensure that agreements made will stand the test of time and that any deviation from agreements will be dealt with effectively and efficiently.  However, we have some serious concerns about the approach to enforcement envisaged here.

5.2 Sir David has also recommended introducing strong new sanctions to ensure that parents comply with their financial obligations to their children.  This includes the possible introduction of high-profile sanctions such as passport withdrawal and improved operational procedures such as risk profiling clients.

5.3 In its response the Government has confirmed that it will bring forward legislation to allow suspension of passports and to impose curfews on those who repeatedly fail to pay maintenance.  While we recognise the need for more robust enforcement of maintenance payments we would strongly recommend that consideration be given to alternative methods of enforcement prior to consideration of such extreme sanctions.

5.4 The CSA has a rather poor history of enforcement, although we recognise that it is increasingly using its enforcement powers to deal with people who wilfully fail to make payments.   However, historically this has been a case of too little too late, hence the high level of outstanding payments and debts that currently clog the system. 

5.5 For this reason, we are particularly concerned that while the Government is proposing stronger sanctions, existing enforcement powers have yet to be tested to the limits of their effectiveness.  It therefore seems appropriate at this point for the new agency to explore the full utilization of existing enforcement powers before further sanctions such as passport withdrawal or risk profiling are introduced.

5.6 A further enforcement issue not highlighted in the reports arises. As already stated, relying on the CSA to enforce child maintenance payments has been far from satisfactory.  Yet, under the current system, parents with care involved with the CSA have been precluded from seeking their own measures of enforcement against a non resident parent who has not been paying child maintenance.  This has been backed by the courts in a number of legal decisions.  This practice of restricting a parent with care’s ability to seek a private legal action against a non resident parent raises significant concerns regarding access to justice. 

5.7 Therefore, we would be interested to learn whether parents with care who decide to use the new administrative system will have a right to bring private actions to enforce payment of child maintenance from a non resident parent or whether they will have to rely on the enforcement measures used by the new agency.  It is vital that parents with care are able to actually receive the money that is due to them from a non resident parent and if the new agency is unable to ensure enforcement of the maintenance agreement the option of private legal action should remain available to those parents who wish to use it.  Arrangements should allow for such legal action in carefully prescribed circumstances where the new agency has failed to meet its responsibilities. 

5.8 There is also an opportunity with a new organisation to put resources and energy into promoting the value of supporting children.  While it may seem self-evident to financially support one’s children, an imaginative campaign to emphasise the value of meeting this responsibility should run alongside the enforcement measures. 

6. Advice Services

6.1 We are concerned by the lack of comment by the Government on funding and assistance for the provision of information and advice to parents seeking child maintenance.  While Sir David does recommend that the Government “reconfigure advice services to ensure that child support information is properly integrated,”[5] the Government’s response offers little comment on how best to achieve this aim. 

6.2 While we recognise that there are a number of agencies that offer support and information to parents it is clear, given the history of the confusion surrounding claims made through the current system, that existing modes of advice are not meeting the needs of parents.  Although parents can access support through a variety of providers there is no specialist advice service that centres on the needs of separating families.  Very few organisations in the voluntary sector offer advice on child support matters.  Almost none offer casework or representation.  The resource intensive nature of child support work and its complexity has meant the voluntary sector has shied away from such work.  We would recommend consideration is given to the creation of such a service and that Australia’s Family Resource Centres be monitored as they begin operation to explore whether they could provide a successful model for the UK.  Sir David recommends further evaluation of the effectiveness of existing government schemes to support parents after separation and we would fully support this work as a vital component to ensure the new child support system is successful. 

6.3 Further we would recommend that specific training on the new administrative system and the opening of private and legal arrangements to parents with care on benefits will need to be given to staff working in the advice sector to ensure the relevant and necessary information is available to parents and that appropriate support systems for each of the three possible arrangements, private, legal and administrative, are in place.  

6.4 Given the increase in choice that the redesign of child support will offer parents it is crucial that a high degree of quality information, advice and support is offered to parents to enable them to decide on the most appropriate method for them to secure a child maintenance agreement that works.  Moreover, while information and other support may be appropriate from Government sources it is essential that independent advice and case work support is available from the voluntary sector, if or when problems arise with the actions of the new agency. 

7. Transition Arrangements

7.1  We welcome the creation of a new organisation to administer child support.  In light of the clear failure in the past with the transfer of claims within the CSA from the “old scheme” to the “new scheme” in 2003, there is a pressing need for clear administrative systems to support those wishing to reapply under the new system.  In particular, the difference in treatment around receiving a child support maintenance premium under the new and old schemes is indefensible.  Therefore, we have some concerns as to how transition to a new organisation will be managed in practice and we would therefore welcome more detail on the practicalities of how the re-applications will be processed to ensure that those already in the system will not be disadvantaged by further time delays and consequential economic loss.

8. Specific Questions

Q2 Do you agree that parents should jointly register the birth of their children?  What steps could the Government take to support this outcome?

8.1 We generally agree with the proposal to encourage joint registration of birth although raise some concerns about the administration and enforcement of such a policy and would recommend that serious thought is given to the ramifications of such a step.  If the legal presumption that currently places the responsibility for birth registration solely on the mother where the parents are unmarried, were to be amended to make unmarried parents jointly responsible, clear exemptions will need to exist to ensure protection for a mother and her child who is born as a result of violent, coercive relationships, as the result of a rape or when the identity of the father in genuinely unknown.  It will also be important to ensure that mothers in such circumstances are fully informed of their rights and any possible implications of not having the father named on the birth certificate to ensure they are not unduly stigmatised or discriminated against as a result. 

8.2 Moreover, if registration is to be joint it is presumed that the father will either physically have to be present with the mother at registration or provide written verification of his parental involvement to protect against any incorrect naming at registration.  Significant thought will also need to be given to the burden of proof required for joint registration and whether paternity must be proved prior to joint registration. 

8.3  Further, we would welcome information regarding how the proposed changes will affect same sex couples.  Currently same sex couples cannot jointly adopt children in Northern Ireland, although a same sex partner is able to apply for parental responsibility for their civil partner's child/children. 

8.4 Naturally the law on adoption for same sex couples will have a significant impact in this area.  We look forward to the result of the recent consultation on a review of adoption services in Northern Ireland which included proposals to extend joint adoption to civil partners and unmarried couples (whether of different sex or same sex) living as partners in an enduring family relationship.  If both same sex partners are recognised as having parental rights over a child then the same responsibilities to financially provide for the child should apply if the relationship breaks down. 

8.5 As one or both partners of a same sex couple will not be the biological parent to the child/children, consideration will need to be given to how joint registration will apply in these circumstances.  Namely, whether joint registration will only be able to occur in situations where the same sex couple have a civil partnership and the non-biological parent gains parental responsibility for the biological child of his/her partner.  While same-sex couples cannot jointly adopt children in Northern Ireland, only one partner will have legal parental responsibility for the child, which may create significant issues for child maintenance if the relationship breaks down and a private agreement is unable to be reached between the parties.

8.6 The benefits of joint registration in the realm of child support seem to be clear as it would greatly increase the ability to trace non-resident parents and may also have the knock on effect of encouraging fathers to become more involved in their children’s lives.

8.7 Such a change would also help to ensure a greater protection of the rights of fathers by ensuring that they are named on the birth certificate alongside the mother, therefore going some way to certify a father’s status and rights in effect of their child/children.

Q3 What role should the courts have in a model where parents are encouraged to reach their own child support arrangements?

8.8       We recognise the benefits of streamlining the child support service and creating a clear boundary between cases that are to be dealt with by the courts and those by the new agency.  In general terms we welcome the opening of the judicial system to benefit claimants who were previously unable to use this route.  However, we are concerned at the possible time and financial implications for claimants who are involved in the legal route.  We would welcome further information on the possible impact on the courts and the cost to claimants of pursuing child maintenance claims through the courts.   Our view remains that the courts should be a last resort where child maintenance issues are disputed and the new agency has not adequately dealt with the dispute. 

Q4 Do you agree that these are the right areas to focus on in order to simplify the system further?  What changes would you make in the areas identified above?

8.10 We generally agree that the areas highlighted within the Government’s response are the right areas to focus on and we welcome the proposed changes to simplify and improve the administration of child maintenance.  

8.11 As previously stated we support the increase of the level of the flat-rate payment to £10 a week for parents with care on benefits. 

8.12 Our earlier comments regarding the need to provide robust advice services should assist with how to improve the flow of information to clients.

8.13 We noted a lack of comment regarding shared care arrangements and how they will fit within the new system.  In regard to how best to deal with shared care arrangements we would propose that in equal shared care situations neither parent should be liable to pay Child Support except perhaps in limited circumstances where one parent receives income Support or Income-based Job Seekers Allowance.   In Northern Ireland we have noticed the growth of genuine shared care arrangements following family breakdown and this type of arrangement should be encouraged and fostered within the new child support arrangements. 

8.14 Considerable care will need to be taken when considering whether maintenance should be affected by the existence of second families.  Although the existence of second families is commonplace it will be important to consider the needs and ability of a non resident parent to pay child support for two sets of dependent children.  In light of the focus on reducing child poverty the Government will need to ensure that any policy put in place will not have the affect of reducing poverty for one group of children by increasing it among another.[6]

8.15 As previously mentioned, we would also welcome consideration of how the proposed changes will affect children of same-sex couples as this has not been highlighted within the reports and is an area of increasing importance. 

8.16 We also draw attention to our earlier comments regarding the ability of parents with care to bring private enforcement actions.

Q5 How can we best construct a charging regime that will incentivise parents to make their own arrangements?

8.17 We recognise that in order to avoid the same problems and criticism aimed at the CSA, the new system will need to operate much more efficiently.  Further, it will need to inspire confidence within the general public to ensure that it is used and meets the needs of its clients.  Although significant public funds will need to be used especially in the early stages of development we would advise against the use of a charging regime at least until it is clear that the level of service provided by the new agency would warrant the enforcement of a charge for service.  We note that research by DWP found that parents were opposed to charging for this service.[7]

8.18 Enforcing a charge in its fledgling status, given the lack of public confidence in the existing system and a natural suspicion of any replacement system, may adversely affect people’s willingness to use the system.  Although we note that this may positively encourage some parents to make their own arrangements.  For those for whom a private arrangement is not an option we would consider it unreasonable to level a charge.

8.19 Further, even if the new system does prove its worth, careful consideration will need to be given to how a charging system would be implemented and managed to ensure that it does not adversely affect the very people it is trying to assist. 

8.20 We would not support the introduction of a flat rate charge (unless this was a very nominal amount) given the divergence in economic status of those who will use the new system.  However, constructing a charging regime on a sliding scale may require onerous additional administration that may not prove to be cost effective or may deter clients from using the service to their own and their children’s disadvantage.   

8.21 We do not on balance, consider that constructing a charging regime is the most effective way to incentivise parents to make their own arrangements as for many people this is simply not possible.  Alternative incentives and appropriate education should be developed to target those parents for whom private arrangements are possible and the preferable option.

Q7 Under what circumstance should we take powers to write off debts?

8.22 We would support the creation of a residuary body to pursue outstanding debts to ensure that the new agency does not inherit these and become immediately disadvantaged as a result.  It would be hoped that such a body would exist for a pre-determined period of time only, as there will come a point when it is no longer cost effective to continue to use public resources to attempt to collect such long outstanding debts.  We refer to the findings of the National Audit Office that an estimated £3.5 billion of outstanding maintenance is still to be collected and that 60% of this is considered to be uncollectible.[8] 

We also think this body should look closely at the issue of self-employed absent parents where there are significant divergences between apparent income and lifestyle.  Our experience is that the current CSA does little to investigate this apparent discrepancy.  Instead, it is left to the parent with care or an appeal tribunal to try to gather the evidence.  This is neither appropriate nor desirable and may be one area where the residuary body could fruitfully concentrate some of its resources. 

9. Conclusion

9.1 Law Centre (NI) welcomes the opportunity to respond to this consultation document.  We trust you will find our comments helpful.  If there is any further way in which we could contribute to this process we would welcome the opportunity to do so.