Child Support Agency routinely breaching the human rights of fathers

In a robust judgement sure to cause consternation, the Court of Appeal has condemned the Child Support Agency (CSA) for “obnoxious” and “unreasonable” legal failings in threatening fathers with jail without giving them the right to defend themselves.

Sitting with the Lords Justice Patten and Richards, Lord Justice Ward said: “The procedures adopted do not comply with the rights to a fair trial and were flawed.”

This was a test case, brought by a group of solicitors and barristers to establish whether the standard working practices of the CSA breached the rights of fathers under Article 6 of the European Convention on Human Rights.  Article 6 protects the right to a fair trial within a reasonable time frame, the presumption of innocence until guilt is proven and similar legal rights.

The appeal was focused on two fathers under scrutiny by the CSA for alleged non-payment of child maintenance: Christopher Gibbons who was appealing against a prison sentence of 21 days, suspended for 11 years and Kambiz Karoonian of Ormskirk, appealing against a suspended sentence of 42 days. The CSA claims that Mr Karoonian owes more than £10,000 in child maintenance arrears but he denies this.

Amongst other criticisms, Lord Justice Ward said the wording of court summons sent to the two men had wrongly implied that they bore responsibility for proving that they did not owe the money claimed, thereby reversing the traditional legal burden of proof, when it is up to the accuser to prove their claims.

The Latin expression sometimes used to define the concept of  ‘innocent until proven guilty’ is: Ei incumbit probatio qui dicit, non qui negat (the burden of proof lies with who declares, not who denies).

Lord Justice Ward said the ruling had been made with “considerable reluctance” and in the full knowledge that it could “emasculate” the CSA’s ability to extract money from recalcitrant fathers.

Stephen Lawson, a child support specialist who helped to bring the test case, welcomed the ruling:

“I hope this ruling will now end the unjust practice of non-resident parents, usually fathers, being jailed or threatened with jail without the opportunity to defend themselves properly. Parents may have heard nothing from the CSA for many years and then suddenly out of the blue they receive a demand for thousands of pounds. Many are simply unable to pay and are met with an application to put them in prison or disqualify them from driving.”

He added:

“In another recent case, a father was arrested, taken to court and sent to prison all on the same day, with no opportunity to challenge the evidence against him. The CSA has been sending summons notices through the post, often to an old address, so this has led to some parents being tracked down and arrested, knowing nothing of the court proceedings. And the onus has been on the parent to prove why he shouldn’t be sent to prison, which reversed the traditional burden of proof. Th[is] ruling means the burden of proof, the serving of summons notices and disclosure of documents will now be improved to a level similar to criminal proceedings – which is only fair if people are threatened with the ultimate sanction of imprisonment.”

No one will be surprised to hear that the Department for Work and Pensions is unhappy with the judgement. A spokesman said:

“It is extremely disappointing that parents who have flouted their legal responsibility to financially support their children have invoked the Human Rights Act to seek to continue to do so.”

Perhaps – but if this judgement is correct, hasn’t the CSA flouted its legal responsibilities too?

The spokesman added:

“Regrettably, we need every enforcement measure at our disposal to ensure the minority of irresponsible parents pay for their children.‪ It is important to stress that this judgement does not question the legality of bringing parents who repeatedly refuse to pay for their children to the attention of magistrates, who can then decide whether to send them to prison. We will of course consider any other implications of this judgement carefully and take the appropriate action.”

The department is now thought to be considering an appeal to the Supreme Court.

This result is bound to please fathers’ rights groups as well as many readers of this blog. We receive receive hundreds of enquiries every year about the CSA.

The picture painted by Stephen Lawson is an undeniably unpleasant one. The casual reversal of that most fundamental of legal principles , the burden of proof, suggests that the CSA has occasionally behaved more like the secret police in a dictatorship than the arm of a parliamentary democracy. And clearly the Court of Appeal found the arguments convincing.

Nevertheless, as much as many would like it, we must resist the temptation to paint all non-resident fathers as victims. As any family lawyer will confirm, there is no shortage in this world of fathers who cannot or will not do the right thing by their children, nor of single mothers in need. Some form of government intervention in the child maintenance process is unavoidable.

Ironically, this judgement comes just as the government begins to wind down the CSA and transfer its responsibilities to the new  Child Maintenance Service. It seems the CSA is destined to die as it lived: in the midst of controversy.

Photo by Tawel under a Creative Commons licence

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

View more from this author

205 comments

William T - November 1, 2012 at 12:30am

I would like to know where is the enforcement of Contact Orders?

Mothers get away with murder when flouting contact orders. My ex owes me thousands of hours of contact time, yet there isn’t even a whiff of interest or concern from the ‘authorities’. I have even tried to enforce things through the courts. They couldn’t have been more dismissive, almost laughing in my face with smug comments about ‘cannot touch the mother’.

Yet the hugely discreditable CSA will hunt down a man for every penny they, usually erroneously, think he should owe. A hugely destructive course of conduct ruining businesses, livelihoods and relationships.

The DWP should extract their ill-witted heads from their pompous backsides and wake up to the gross imbalance off justice that they ‘support’ and oversee on a daily basis.

Rosaya - May 6, 2014 at 8:43pm

My ex partner lied to his GP that hes suicidal so that he can sign on and get put on incapacity benefit, and not pay maintenance. He also changed his name. I have not had one penny in 14 yrs, and he refuses to see his only child because she is a girl and he wanted a boy. The crap that we mothers have to put up with because of vindictive, twisted ex partners is horrendous. I should be the one on sickness benefit, he gave me a breakdown. He works cash in hand and has a very good life.

Stitchedup - May 7, 2014 at 9:59am

I wouldn’t be so quick to discount suicidal thoughts. Men are far more likely to contemplate suicide than women. Here’s a link to a guardian article, a left wing feminist publication not known for its fair treatment of men, bit even they recognise it is a gender issue:

http://www.theguardian.com/commentisfree/2013/jan/23/suicide-rates-men-gender-issue

What the Guardian doesn’t appear to recognise is that divorce and separation, losing regular contact with children, losing the majority of your assets and being forced by the courts to start all over again at the age of 40 or 50 is one of the main causes of suicide in men. They talk about the recession causing an increase in the rate of suicides, but we all know that divorce and separation increase during recession as men who were previously good providers are routinely ditched, skipped and cashed-in by their wives and partners; as the saying goes “When poverty comes in at the door, love flies out of the window”.

Here’s a link to a CBS article that gives some more insight. It is an American article put the same issues apply in the UK:

http://www.cbsnews.com/news/men-wear-divorce-badly/

JamesB - May 7, 2014 at 2:53pm

Not only starting over again, but starting over again and paying maintenance at the same time which leaves the ability to obtain a decent life (or property) massively diminished.

Before the CSA at least it was possible to get a clean-break, now lawyers and Judges will glibly advise nrp’s that a clean break is not possible and that they need to give everything up that they have worked for and that it is for the best. Not right or fair I think, maybe if the bloke had done something wrong, but where a woman (or man) is at fault and is tired of the other they shouldn’t be rewarded by the CSA or anyone else, without the consent of the other person. That the law does this isn’t right or fair. Women moving boyfriend in and the father of the kids to pay to be disenfranchised of everything, including his children is bad.

H. Hawks - June 6, 2014 at 11:01am

Why would you want a ‘clean break?’ The parent left with all the child responsibilities & financial responsibilities doesn’t get a clean break! It’s looking like the CSA will only be able to make my ex pay me £7 per week for 2 children?????!!!!!!!! Meanwhile my ex can live a near-batchelor life-style with no responsibilities…..yet I am broke, on benefits & REALLY struggling to make ends meet. When a couple with children separate or divorce ALL essential expenses for the children ( i.e. food, clothing & a percentage of the bills) should be split 50/50. DOES ANYONE AGREE WITH THIS?….THE LAW NEEDS TO BE CHANGED.

Yvie - June 6, 2014 at 3:39pm

I agree that both parents should pay equally towards the upkeep of their children. However, when marriages break down there are usually two homes to support and finances aren’t infinite. Both sets of bills need to be taken into account, not just the mothers.

JamesB - June 6, 2014 at 9:34pm

I will re-write my first sentence again for you to make it clearer.

Not only starting over again, but starting over again with nothing after losing the vast bulk of the assets in divorce, paying off the lawyers, and then paying maintenance on-going on top of that, being ‘punished’ twice and on-going over and over for the same ‘crime’ of wanting a family with a woman they didn’t know would leave them. The ability to obtain a decent life (or property) massively diminished with taking no assets from the settlement and a reduced income after maintenance.

The woman on divorce will get the bulk of the assets with children and that was the clean breaks that used to happen which I was referring to. The man loses everything he has built, but has the opportunity to start again and learn from the experience, under current law he doesn’t have this opportunity as he will have to pay in addition each and every month which gives him difficulty re-building. Hence why there are so many males on the streets.

Ann-Marie - July 8, 2014 at 11:40am

“When a couple with children separate or divorce ALL essential expenses for the children ( i.e. food, clothing & a percentage of the bills) should be split 50/50. DOES ANYONE AGREE WITH THIS?….THE LAW NEEDS TO BE CHANGED”

You cannot possibly be serious in saying this?? How would a NRP be able to afford a place to live if he was paying you 50% of all the expenses you incur??

I am a woman too with an absent father (he does pay but not much) so I am all for fathers paying for their children but seriously, your suggestion is ludicrous!!!

HKDay - June 4, 2014 at 8:30pm

Does anyone know the outcome of this hearing? My partner is being hounded by csa, he lost everything and isn’t allowed to see his daughter and hasn’t done for 3yrs, she took everything and wants more!! I’m a woman but seriously this is such an unfair system on you fathers :/

lewy - July 4, 2014 at 3:51pm

Hi.
Just want to say that it isn’t always the fathers who get away with non payment. I am the father of three daughters and was granted custody of them when my ex wife walked out. My case with CSA is ongoing, has been for 11 years now. She has changed her name and ignores all correspondence. I am owed thousands and yet she is living it up in London somewhere. No one knows of her actual income or whereabouts.. So for now I just keep waiting for CSA to catch her.

Yvie - November 1, 2012 at 8:30am

It’s not about painting all non-resident fathers as victims. The methods used by the CSA are dispictable. Fathers are threatened with prison sentences, bailiffs, loss of driving licence irrespective of whether they have the ability to pay or not. Deduction of earnings notices are imposed on fathers at the drop of a hat. As long as the CSA get the money they do not care how they get it, even if it means putting a father into debt and risking his home. They say that the welfare of children is their paramount concern. Really – that surprises me as they have no means or interest in checking that child maintenance is actually spent on the children. If there was an element of fairness such as taking both incomes into account, there might be less resentment from the fathers who are more then willing to support their children, but less inclined to support their exes lifestyle, particularly when both parents work full time

JamesB - November 1, 2012 at 11:09am

NRPs = Scum.

What a mess.

Can we go back to how it was prior to the CSA please? Didn’t seem so bad. The elephant in the room (in your post) is that it doesn’t criticise women who get pregnant without the man’s consent and then expect hefty maintenance. Having gone through that I think a degree of measuring conduct is inevitable, not USSR type CSA which is doomed. So, think let’s go back to how it was before the CSA. That way this social issue can be taken away and we can get to the more important issue of council houses rather than Feminism, which has dominated politics for far too long in this count. Wow, I really mean that last point, soo strongly.

caroline Taylor - November 1, 2012 at 12:37pm

I found it extremely heartening to read of your interest in the CSA. We have a Tribunal on Tuesday in Cheltenham to prove that we have a long standing history of support & exactly what we have paid to the pwc for the children.The CSA seem to take as ‘gospel ‘anything the pwc says and in an acrimonious situation this is completeIy unfair . I know there are a lot of people who try and use excuses to avoid payment but they seem to get away with it anyway ,for ever ,by never being traced .The NNRP who lives in the same house for years & have children regularly are targeted -often when they are working on ‘figures’ given by the pwc which in retrospect don’t even allow you to take into the consideration of the children who live with you .If the pwc is taking the money into her bank account and doesn’t tell you there is a problem -how on earth are you supposed to get them (your resident children)into the equation? Our MP tried & got the ball rolling for us and despite being very encouraging over our’ longevity & quality of the support to the children of the pwc’ cannot profess to know both sides of the story .Here’s hoping our ‘evidence’ of what we’ve done /paid speaks for itself ! Regards ,Caroline

JamesB - November 1, 2012 at 1:12pm

Far too long in this country that was.

Sola Noah - November 1, 2012 at 1:20pm

William T, please stop wasting your time going to a family court in England; it’s a failed institution.

However, please ensure that your kids are looked after financially. Because we feel mothers use children as weapon we also feel using finance/money as weapon too is appropriate, NO.

Yvie - November 1, 2012 at 1:49pm

It is also possible for mothers to use finance/money as a weapon. Some mothers will attempt to reduce contact between the children and their father because the more contact the father has, the less child maintenance the mother is entitled to.

chris - November 2, 2012 at 4:58pm

I have had the unfortunate experience of being presented to a judge for so called arrears of child support . These arrears never existed as i have met my obligations for child support . the so called arrears accrued because it took the csa 26 months to complete a review . its importanant to emphasise that during this 26 month period i was paying maintenance at my assessed amount calculated by the CSA . when your in court a judge cannot question anything the csa presents even if you have evidence to support your defence . Im pleased that the court of appeal has found that thuman rifghts have been breached by the CSA . Lets see where it goes . i dare say at appeal it will be squashed as before the CSA are drachonian and its money for the treasury not the child . isnt that corret MR Ian Duncan Smith

John - November 2, 2012 at 9:39pm

I hope that this ruling is the first of many, that will bring an end to criminalising NRP’s, through CSA incompetence and herald a class action against the CSA and DWP, for inhumane methods, that deny the accused the right to a fair trial and to be judged by their peers, in a court of law.

I will be seeking legal advice and compensation for CSA incompetence, in their efforts to criminalise me, should a class action take place….and I have been paying what they asked of me!

They should be disbanded and all Child maintenance cases should be firstly dealt with by parental mediation, and if failing to agree, through solicitors and the courts!

chris - November 3, 2012 at 1:57pm

I quite agree that the csa should be held to account for decades of incompetance and maladministartion . they do not have a duty of care to a child however this is now a step in the right direction for those reponsible parents that have met their individual financial obligations not to be tarred with the same brush as those that will not and have no intention of financially supporting their children . Bring on the compensation claims i say .

Observer - November 3, 2012 at 5:38pm

I agree Chris. Organized crime is only legitimate inasmuch as nobody stands up to it.

NACSA CHAIR - November 4, 2012 at 2:00am

We were absolutely delighted to hear the judgement. Whilst we would wholeheartedly support the need for enforcement, and for the need to make non paying parents understand that their actions cannot be tolerated, sadly our help lines are inundated with genuine NRPs paying as they should, but often put into large arrears through no fault of their own. Likewise, we receive many calls from PWCs that genuinely suffer from errant ex partners, and despite years of battling against the system, the Agency simply fail achieve appropriate recovery of debt. The Agency’s enforcement powers are harsh and adequate – but simply not used effectively.

The Other Mike D - November 5, 2012 at 10:49am

“Nevertheless, as much as many would like it, we must resist the temptation to paint all non-resident fathers as victims. As any family lawyer will confirm, there is no shortage in this world of fathers who cannot or will not do the right thing by their children, nor of single mothers in need. Some form of government intervention in the child maintenance process is unavoidable”

While I confess I dont know what the rates are in the UK, in the US, research here has shown that mothers are 66% more likely than fathers to defualt on child support. So I find this comment more that bit sexist. The courts here, like the courts in the UK, are so heavily against the fahters that even those fathers that do the right the right thing are subject to a level of scrutiny that mothers are never subject too. The US is also having its share of child support enforcement agencies being subject to lawsuits exposing Thier heavy handed tactics.

As someone who has experienced it first hand I say its about time.

JamesB - November 5, 2012 at 11:22am

I agree with Mike. I also was upset by the same section that he refers to, as I said in my earlier post. At the risk of getting a bit political, if Obama loses on Tuesday, then it will be more than a little bit due to Government (false) intervention in this area in the US also.

JamesB - November 5, 2012 at 11:25am

P.S. for that issue and if Romney is against this Government intervention into the family, then I would vote for him. It is the main issue upon which I would vote, I’m in the UK.

Jason Wallace - November 5, 2012 at 1:03pm

Hi there

I was delighted to see that the ruling was awarded against The Child Support Agency.

My experience is similar to many others in that I WAS paying a settlement which my ex-wife’s solicitor drew up. The agreement clearly stated that she would use a mediation service and would not use The CSA. The Court Order was very clear indeed.

What has happened is that my ex wife has involved The CSA and has realised that by denying the children the right to see me that she can then claim the right to even more money from me.

So, I complied with a Court Order. My ex wife did not. I work full time to support my families (as does my wife) while my ex wife does not. I am unable to see my children. Then to add to all the punishment the state comes in and makes things even more contentious.

I have repeatedly sought a non-confrontational approach with my ex wife and it has got me nowhere so I am now faced with half my salary being removed by DEO based upon calculations which The CSA will not share with me so I am having to go to tribunal for that.

Folks, while it is important to track down NRPs who actively do not pay child support why does the state have to foul up arrangements which were perfectly good?

GPiskor - November 5, 2012 at 8:28pm

A long overdue ruling with international ripple effects.

It’s staggering that Lord Justice Ward would publicly state it was done with “great reluctance” with the full knowledge that it would “emasculate” CSA’s prosecutorial capability. Amazing! That’s tantamount to saying expediency trumps Rule of law.

Hopefully, Iain Duncan Smith will use this as an opportunity to rework the DWP enforcement bureaucracy to focus on intentional non-payors while establishing humane outcomes for those simply unable to pay.

David - November 7, 2012 at 1:23am

It’s good news… so why do I feel like nothing will change in reality. It’s a shame as a citizen to have no faith in the law of the country you were born and live in.

James D - November 7, 2012 at 1:56pm

<