A bad advert for the child support system

family law

I have been around long enough to remember how child maintenance was dealt with by the courts prior to the advent of the child support system. I recall, in particular, walking down to the local magistrates’ court most Thursday mornings to argue the issue on behalf of mothers and fathers.

That court-based system was certainly not perfect. There could, for example, be large discrepancies between how much different courts, or just different magistrates/judges, ordered respondents (‘non-resident parents’, to use the jargon of the child support system) to pay. There was, of course, no formula for the courts to use to decide the amount of the maintenance – the cases were dealt with on the basis of what the court felt was a reasonable sum for the respondent to pay, having regard to the facts of the case, in particular the means of the parties. Such a discretionary system inevitably meant that different judges would have different views as to what was reasonable, given the same facts.

However, imperfect though the old system was, it had nothing on the imperfections of the child support system (in its various guises) that succeeded it, administered by the Child Support Agency (CSA), and now by the Child Maintenance Service. Take, for example, the recent case PS v Secretary of State for Work and Pensions and LM (CSM) (Child support : other), decided by Judge of the Upper Tribunal Stewart Wright on 5 October last. The case, which involved an appeal by a parent with care father against a decision of the First-tier Tribunal, was a catalogue of errors that led Judge Wright to say that it was:

“…not, however, an appeal that provides a good advert for the workings or administration of the CSA, as the history below shows.”

Now, at this point I would like to set out a list of the errors that that history shows, but I am a little hesitant to go into details, not because the history is complex (it is), but because the case is continuing, and the full facts have not yet been established, by being determined by a court or tribunal. Accordingly, what follows is a little limited, and subject to the proviso that I have tried to give a fair and balanced view on the following points.

Subject to that, the case clearly throws up a number of points of concern, which include:

  1. The father originally applied for child support maintenance in January 2001. Once that application was received, the CSA should have sent a ‘maintenance enquiry form’ (MEF) to the mother. Now, one would expect that the CSA would have kept a clear record of this important step in the procedure, and that it would therefore be inarguable that the step had been properly taken. However, the records that have been kept are such that to this day it is still in dispute as to whether the MEF was sent to the mother, at her then correct address.
  2. Whatever, the CSA clearly believed that the mother had received the MEF. It was then the duty of the mother to complete the form with details of her means, and return it to the CSA, so that the CSA could carry out a maintenance assessment. The MEF was not returned, but the CSA took no action.
  3. In fact, no further action was taken by the CSA until August 2008, when “a decision was made to cancel the case from 01/06/07”. It was not properly recorded why the CSA decided to cancel the case and, indeed, it appears that they had no legal grounds for doing so. It was also not clear whether the father had been notified of the decision.
  4. In 2012 the father made enquiries about his application, only to be told that the case had been closed in 2007. Following an investigation the Secretary of State concluded that the case had been closed in error and should be reopened. In October 2013 the Secretary of State found the mother to be liable to pay child support maintenance at a variety of rates from 9 July 2001 until 3 September 2012, when the case was finally closed, as the child had by then reached the age of 16 and had ceased to be a “qualifying child”.
  5. The mother appealed against this decision, arguing that the case had been closed since 2007. Tellingly, in his response to the mother’s appeal the Secretary of State claimed (in fact wrongly, in the view of Judge Wright) that the case suffered from a “paucity of information”.

I’m not going to go any further, save to say that the mother’s appeal was allowed in part, partly because the tribunal found that no MEF had been issued in 2001. The father then appealed against that decision, and Judge Wright found that the tribunal had failed to have regard to evidence “which at the very least arguably shows that a maintenance enquiry form had been issued by the Secretary of State … to the mother in 2001.” Accordingly, the father’s appeal was allowed, and the matter will go back to be re-decided afresh, by a differently constituted First-tier Tribunal. Thus, it would appear that the case will not finally be decided at least until next year, sixteen years after the application was first made, and more than four years after the child no longer qualified for child support.

Now, I can’t recall any child maintenance case that the courts dealt with that involved such a catalogue of errors, delay and mismanagement. On the other hand, I have read many reports of such cases dealt with under the child support system. As I said earlier, the courts did not achieve perfection, but they got a lot closer to that goal than the child support system, which has, quite simply, never been fit for purpose.

If you really want to, you can read the report of PS v Secretary of State for Work and Pensions and LM here.

Image by Nick Webb via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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17 comments

JamesB - November 2, 2016 at 6:03pm

Thanks for that. Interesting.

With re to a perfect system, the Philippines is the place to look to. Ban divorce. Failing that, not sure.

Is court CM better than CSA? Seems a bit of a strange question. Death by shooting or hanging? Not much of a question.

I remember after a nice hearing when the nice Judge was putting a nice attachment to earnings order against me the nice respondent because the nice applicant wasn’t happy I couldn’t quite make the full amount, he nicely said he was putting a protection of earnings in place for me. Which I thought sounded nice, as he smiled at me as if he were giving me something, so I asked him what he was on about and it was that my net income after tax and deductions (excluding pension payments) should not be less than £300 per month, i.e. £300 a month to live on. What a load of s&%t.

JamesB - November 2, 2016 at 6:04pm

Not much of a question or choice and I reject the premise of the question and underpinning assumption (that government has the right to interfere in the family).

Andy - November 3, 2016 at 6:45am

I find it difficult to make comment because this has a multitude of admins strive errors,judgemental errors and end result errors.
Yet again the JOKE CMS and its function have a volatile effect on the NRP who was right to appeal and in this case the CMS,CSA same incompetent agency have made a fool of themselves.and supprisingly no one took the blame or admitted to but the judges comments show that it was not the agency at fault just working practices and procedures that had gone wrong..How can a judge condem the CSA when it’s function is to rob the NRP of all finances and was put in place for such actions by courts and backed up by government intervention..and of course don’t forget if the judge was to severe in his comments about the CSA CMS he would be criticised for his view…

So in all just showed that even if the CMS,CSA have done wrong they get away with it…
Isn’t that called making the rules up as you go along…

Andrew - November 3, 2016 at 9:35am

Courts exercised some degree of common sense on my experience. It’s no use saying that the second family does not count – the later children are human beings with mouths to feed and bodies to clothe too. You cannot ignore their needs.

Oh and banning divorce is just silly talk – many of the children concerned are not born in wedlock!

Not that o have a solution either!

JamesB - November 3, 2016 at 10:40am

The point is Andrew, maybe it is better to leave people alone rather than intervening and making things worse.

JamesB - November 3, 2016 at 10:41am

I raised the subject of my second family with the Judge, his face was a picture, he didn’t want to know and we sat there in silence for a while before he changed the subject.

JamesB - November 3, 2016 at 10:43am

The only people who believe in court ordered or csa child maintenance orders are those who have never had to pay it.

JamesB - November 3, 2016 at 10:55am

Plus not all those people agree with it either.

Really hoping my eldest son will change school and come and live with me soon as he is getting older and showing signs of seeing my ex’s madness.

Just trying to facilitate that without upsetting their relationship or that with his younger sister. Perhaps we may try mediation or even a pub visit. Things have calmed a bit, no thanks to the court or csa, probably despite them.

JamesB - November 3, 2016 at 10:58am

Probably because people are realising that I am not the monster that non resident parents are displayed as in court with society, csa, mothers meetings etc. The narrative of good mothers and bad fathers needs to change as it is not fair.

JamesB - November 3, 2016 at 11:32am

How did the enlightenment happen without family courts or the CSA or telling us how to live our lives? A rhetorical question.

Did Henry viii give financial settlements to his divorced ex wives because he was ordered to or because it was the right thing to do? Not a rhetorical question, I like to think because he wanted to rather than he was ordered to.

JamesB - November 3, 2016 at 11:33am

If anyone knows the answer to that last question I would be interested please. I expect he was ordered to, but he told the Judge what to say, which amount to not being ordered to, lawyers.

JamesB - November 3, 2016 at 11:34am

I bet he told the Judge what to order, that’s how it should be the man head of the family, not the government.

JamesB - November 3, 2016 at 11:59am

Being serious now. May be last point for a while. Thinking about it.

If it is a choice of CSA or similar, or Judge or similar, or nothing at whim of families involved or similar, which I think is the choice.

I vote for option 2. Judge or similar . Have said so before and say so here, at least that way Judges can go more according to fairness and be guided by if people are marrying or not and society and many more factors which makes it fairer than options 1 and 3. Also, married people should get more child maintenance and spousal maintenance upon separation than unmarried (although subject to pre nups) like they do in Russia. If anyone is still reading. Speaking as someone who’s mother was an orphan and brought up in an orphanage and who’s father didn’t treat her well and would have nowhere to go under option 3 and that is not right either. I do also think and will say this to each of my 2 daughters to try not to have children out of wedlock.

JamesB - November 3, 2016 at 12:58pm

I have been of the same opinion on this for 20 years and have said so on here and other places also, so I am not being flippant and perhaps there is a place for lawyers. I do know about Russia as I have a Russian friend and Denmark and Australia and Scotland and Philippines other places systems on this and those in order of preference are 1. Russia. 2. Denmark. 3. USA. 4. Philippines. 5. England and Wales. 6. Australia (although I like their family centres, they pander to feminism and their csa is worst of all).

JamesB - November 3, 2016 at 1:09pm

With re to Sharia law I regard that as better than England and Wales family law. With regards to Israeli law I probably rank that the same as the US and perhaps very similar to it and New Zealand and all like that in joint 3rd and better than E and Wales which needs replacing.
Thinking about it in summary I agree with John on his post here which I read. I agree with him on very Little else though perhaps.

JamesB - November 3, 2016 at 1:15pm

Worth looking up but the Danish system sets a small amount all must pay which is topped up by state and voluntary contributions. I would prefer the Russian system which I explained earlier, or the Danish system in second or the US system below that I would campaign against as csa at high level is amoral and immoral as is relying on the church or families as in the Philippines for the reasons I gave earlier. So we need to go backwards to go forwards I agree with John, change the law please. Also no article 50 please, just act unilaterally and make certain countries (e.g. Poland) apply for visas and don’t let those who don’t in, or limit percentage immigration to same level each country as we have three time EU migration over France (France in dictionary EU not), limit it. I’m off to do some work and live with the family now.

JamesB - November 3, 2016 at 1:24pm

Clarification on Article 50. Better to negotiate Brexit (its in the dictionary now) from within than from the outside of the EU with animosity which we would be if we submit Article 50. Canada took 6 years with good will. I voted Brexit but don’t want article 50 submitted.

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