The birth of the CSA: regulations, damn regulations

CSA

Back in the early 1990s I was appointed to chair appeals to a Child Support Agency (CSA) tribunal. The CSA has of course since metamorphosed into the Child Maintenance Service. I was excited and positive about the setting up of the CSA at that time because I thought an administrative process  might circumvent expensive arguments about the relatively low amount of child maintenance that one parent should pay the other. Such arguments would be resolved quickly and without great cost I thought.

I couldn’t have been more wrong – and it didn’t take long to find this out.

I began to have real doubts about the CSA’s potential efficacy when I embarked on the training course and realised as I stared at the course material I didn’t even understand the formula and wouldn’t ever be able to apply it without a computer. It was truly mind boggling. I also realised pretty quickly that I would have no ability to correct all the errors that were bound to be made, given the complexity of the formula and the ease with which anyone could disguise their true financial position. Why? Because I would be hide-bound by all the regulations that were coming into force at the same time. These were just as complex as the formula itself: in fact even more so because there were so many of them.

But I still gave it a go and as appeals came before me all I could do was remit them for a recalculation, but I did so knowing that each one would be bogged down for much too long, and that the swift, commercial justice I had anticipated was just a pipe dream. I became increasingly concerned and was relieved to be appointed Chief Assessor of the Law Society’s Family Law Panel later in the 90s, allowing me to retire from the tribunal gracefully.  I thought then and still think now, that the CSA was the biggest disaster, on an almost nuclear scale, in relation to the administration of family law I have ever seen. Its abolition remains long, long overdue. I would close it down tomorrow, and run off its existing cases.

A case which appeared today on Bailii only reinforces my views. The CMS is an administration of well-meaning but unqualified people trying to do a legal job which requires forensic skills, a job which many family lawyers, in fact, do every day. The CMS also remains hidebound within those mind-boggling regulations which allow for no discretion and create huge injustice.

Dickson v Rennie is a case in which an extremely wealthy married father once accepted the jurisdiction of the court to make a maintenance order for his child but is now playing the child support card for all its worth. His capital was assessed by the court in the original proceedings in 2007 at about £8.5million and his net income at £130k per annum. The court noted how he indulged his passion for “cars boats and planes” but similarly criticised the mother for profligacy because of expenditure on a kitchen.  His liability for child support was set, by the court, at £3400 per month. He tried to reduce it via the court but failed. Then he must have read up on the CSA – or the CMS as it now called.

The earlier assessment did not prevent the father from applying to the CMS for a re-assessment of his liability. (Note however, there is a possibility of a ‘Christmas order’ being made, which might prevent this from happening). His gross income was assessed at £20k and his child support payments at £26.43p per week. He then slashed his payments down, and is now paying £1k per month to the mother. Even though resident in Jersey, (which would normally mean he is outside the remit of the CMS) he is paid through a company which he owns and which he argues brings him within the jurisdiction of the CMS. The CMS agree and have accepted jurisdiction, which ousts the court, but the mother has appealed this point to the first tier Appeals Tribunal.

This has, of course, all the potential for dragging on for years and years and in the meantime causing unnecessary havoc to the lives of all concerned.

As Mr Justice Holman remarked:-

“What essentially has happened in this case is that the district judge in 2007 was able to take, and did take, a global view of the worldwide assets and income of the father. Now, however, the father has asserted his right to make this application to the Child Maintenance Service. Under regulations that have, relatively recently, come into force, the Child Maintenance Service take as the data for their assessment of income the contents of United Kingdom tax returns and assessments made by Her Majesty’s Revenue and Customs. The effect has been that a calculation has been made that is based solely upon that relatively small part of the father’s income and assets which is (he says) his remuneration from this company which is undoubtedly registered and located here. The income is the modest sum of about £20,000 gross per annum.”

Perhaps what is needed is a change of heart. Given that so much Government emphasis is placed on avoiding the CMS altogether if possible, parents who are not on benefits should have the option to apply to the court if they wish, without the consent of the other party. In that situation, most importantly, the court application would be given precedence.

After all, is it right for a High Court Judge to conclude his judgement thus?

“I can only conclude this judgment, which may seem hard hitting to the mother and her position, by begging both these parents, and in particular the father, to search their consciences, [and] consider the objective needs of their child.”

Read the judgement here.

Photo by Wolfgang Staudt via Flickr

Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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3 comments

Nordic - December 20, 2014 at 12:08pm

Dear Marilyn,
The CSA/CMS rules are indeed deeply flawed. However, with respect so are the inferences and conclusions you and the judge seem to draw from these flaws. Properly crafted regulations are vastly superior to a legal process which can squander years of maintenance in the blink of an eye, inevitably be acrimonious and create uncertainty for all. Bad regulations need to be fixed, not replaced with something even worse.
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In the case you reference, you suggest that the use of tax data in the CMS income assessment is a problem. This is not correct. The problem arises because the CMS only apply PAYE data in their income assessment. Hence, capital and dividend income is excluded seemingly suggesting that wealthy people who live off capital should not pay child maintenance. This is of course madness and highly discriminatory. CMS should be made to ask the HRMC for the right data which is the total taxable income from all sources. Furthermore, the process needs to remain administrative so that changes in income can be accounted for automatically on a consistent and transparent basis. The last thing we need is parents having to go to court and go through financial disclosure for such routine adjustments. That would only serve to generate more spurious legal fees.
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There are many other things wrong with the CMS system. Most importantly, CMS needs to be completely decoupled from Child Benefits. At present these benefits are automatically assigned to the mother creating a highly uneven playing field at divorce both with respect to residency and child payments. Since child benefits can only be awarded to one parent, the system is also incapable of reflecting shared parenting arrangements fairly. Other parts of the CMS system are crazily complicated. For example, compensation for transport cost involves a massive process which in the end delivers a completely unfair and inappropriate level of compensation. The right process is obviously to require one parent to pick up and the other to deliver. This is the common sense approach applied in Denmark.
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CMS is deeply flawed, discriminatory, overly complex and unnecessarily costly. But answer is definitely not more of the chaos the courts promote. Properly designed, regulations create certainty, consistency and transparency in a way a court never can. In my own divorce, the one thing that was never disputed or subjected to much argument was child payments. Therefore, the answer is to fix the CMS. You could do worse than looking to the Nordics for inspiration.

Anonymous - December 20, 2014 at 10:26pm

Nordic,

Before reading your post, I would have thought that the courts deciding maintenance arrangements could do a much better job than the CSA, which adds so many layers of bureaucracy to the problem as to always get everything it does wrong.

Its saying a lot, I think, when one says that the courts could do better at something, because anyone who has come though them knows just how discriminatory and flawed they are, and just how toxic they are with money and politics. But the CSA is just off the planet with their malice and stupidity, that it really does beg the question whether an institution as mired in scum as this one is could possibly improve in any way.

But you do point to the root of the problem, which is of course Child Benefit.

I think the difficulty with your argument or suggestion is that it assumes that the UK might ever want to promote equality and fairness.

The author of the article above typically presents the CSA as disastrous when it comes to channeling the money from one carsboatsandplanes bimbo to another carsboatsandplanes bimbo. Typically, it leaves out (intentionally or not) how disastrous the CSA is in its heinous treatment of parents who are struggling financially (which tends to be the majority these days). So here we have the typical narrative of the CSA failing to do its job, which usually only has the effect of making the CSA even more pernicious in its treatment of decent low-income fathers.

Anonymous - January 28, 2015 at 9:52am

I think it’s very easy to make sweeping judgements. By the very nature that it was a schedule 1 application the parties were not married. Therefore the mother is highly unlikely to be a ‘carsboatsandplanes bimbo’. Is probably struggling (how is she funding the litigation?) and the poor child moves from one struggling home to the carsboatsandplanes lifestyle – exactly what schedule 1 was designed to protect against!!

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