Child support in danger

If you can make a difference, then you only have a week or two to do so. The government has responded to Sir David Henshaw's report on the Child Support Agency (CSA)ï'žµand the future reforms are beginning to take shape. It will need concerted effort if we are to create a system that will enable future clients to settle fairly and justly the financial issues they face.

It is just possible that we will secure the courts' ability to make child maintenance orders that stick again (rather than orders that last for only 12 months), but it is unlikely that we will secure the ability of the court to impose general maintenance orders (ie, where either side refuses to consent to the court doing so). So there will continue to be the opportunity, generally by non-resident parents (NRPs), to hold the family hostage (by and large ensuring that there are under-payment for children).How did it all start?

1991 was the year of Iraq invading Kuwait, Robert Maxwell disappearing, endless ruddy Bryan Adams, the Commitments '“ and Mrs Thatcher's vision for the council estates of Britain: feckless dads fathering children on housing estate mums, bleeding dry the Treasury coffers to the chagrin of middle England. And so came about the money-saving reform of the CSA. Except that the impression is one of waste. Consider the following:

• Uncollected maintenance was £3.3bn as at March 2005. In comparison, only about £5bn was collected '“ a hit rate of about 60 per cent.
• Spending on maintaining and developing the CSA soared way over benefit collections each year (for example net cost to the tax payer in the four years to 2004 was £574m).
• And £539m was spent on the redesign in Child Support, Pensions & Social Security Act 2000 (against a budget of £606m to 2010 '“ so it is likely that the budget will be over-run).

Anecdotal experience is that family lawyers and courts like '“ and apply '“ the formula. What we do not like is relying on the CSA to administer it:

• In many cases it is totally inactive: one in four of all new scheme applications (ie, after 3 March 2003) are waiting to be cleared).
• In too many cases, it fails to enforce (one in three cases is totally non-compliant).
• Too often it seems unable to impose common sense solutions and generally fails to get to the underlying realities (there are errors in almost 20 per cent of assessments).
• The systems for securing compensation for its failures are so labyrinthine that few will get to the end so there is little inducement from that quarter upon the CSA to deliver on its responsibility to provide fair sums for children. (It now costs 70p to collect each £1 of maintenance.)

Often these problems take place over the horizon of the court process: our courts never get to see the problems that the families are experiencing as they try to live with a court-imposed settlement that was built upon an assumption of child support that simply failed to materialise.

Making it better

And yet it could all be so much better. As we negotiate settlement of our financial cases (divorce or Sched 1 of the Children Act), we have all the data that is needed to carry out the calculation. Why not simply permit the court to impose a child maintenance order if it is also making another sort of order (eg, for capital or spousal maintenance) at the same time?

There are no losses '“ only gains. The court is not over-burdened; it is simply another line in the order. The CSA will lose some of the most intractable cases. There is fairness for children, as, through their wider ranging search through the resources of the parties to settle the other aspect of the case, the lawyers will have a keener idea of the non-resident parent's ability to pay than the CSA is ever likely to secure.

Wrong approach

But government seems to insist that it is only where there is agreement that couples should be exposed to the court. What this means is that:

• In the most intractable case, where the NRP wishes to avoid payment, he will refuse to give the court jurisdiction to deal with child maintenance.
• In this way, he will be able to operate within the administrative system, knowing that if he is prepared to put in sufficient energy, he will be able to avoid payment for the long-term. There are countless NRPs who have managed exactly that. There is every reason to suppose that they will continue to manage to do so.
• They will achieve this goal because '“ once again '“ the CSA is saddled with responsibilities beyond its capacity to manage. It can process volumes of standard cases that the courts can only gaze and marvel at. It can be wonderful at enforcement. But it is no good at all at the NRP with slightly complex financial circumstances who wants to evade. Here the CSA just pours staff resources into cases that will never advance and which will continue only to swallow more and more time.

Responses should be in by 17 September this year '“ so hurry to make your voice heard.