A plea for a simpler child maintenance system

family law

Or maybe just return to the old system…

I’ve often argued here against the child support maintenance system, and in favour of the return to the old court-based system of determining child maintenance. My main reasons for this are the unfairness of a rigid formula-based system and the staggering inefficiency of the child support system, which has failed to recover some £3 billion over the years. However, there is another reason: the sheer complexity of the child support system.

This thought comes to me every time I read the report of a child support decision, usually by the Upper Tribunal, and thus came to me again last week when I glanced at three recent such decisions. I’m not going to talk about those decisions, save to say that, like all child support decisions, they involve quite complex law, including statute, cases and a huge amount of secondary legislation, making them difficult to read and understand even for most lawyers, and surely virtually impenetrable for non-lawyers. If you want to see what I mean, have a quick look at the cases here, here and here. Remember that a large proportion of parties appearing in these cases have to do so without the benefit of a lawyer advising them. Quite how they are able to follow the arcane intricacies of what is going on is beyond me.

But of course an administrative formula-based system, as against a court-based discretionary system, has to be like this. Virtually everything has to be carefully defined by the rules, so that the system can as far as possible work ‘automatically’ on its own, without recourse to such uncertainties as judicial discretion. And when you stop and think of all of the possible complications that could arise in connection with a decision as to how much child support a non-resident parent (NRP) should pay (take it from me: you will only be able to come up with a tiny fraction of the possible complications), it is easy to see why the rules are so voluminous and complex. I don’t know how many statutory instruments there have been dealing with child support, but it is quite a few, and most of them are pretty long.

On the other hand, the old court-based system of deciding child maintenance, which still exists to deal with those cases falling out of the remit of the child support system, is essentially contained in just a couple of paragraphs of the relevant statute. For example, in Schedule 1 of the Children Act you have one paragraph which gives the court the power to make child maintenance orders, and another paragraph which sets out the matters to which the court is to have regard when making such orders. And that is about it. The rest is left to the discretion of the judge or magistrates dealing with the case. No need to delve into reams of secondary legislation to find an answer to a point, assuming there is one.

And then there is the tricky question of interpreting all of that legislation. How many times have I seen cases in which the Upper Tribunal has found that the First-tier Tribunal wrongly interpreted legislation? And if the tribunal judges can’t get it right, what chance all those parents with care and NRPs, trying to hack a path through the legislative jungle without the benefit of a lawyer?

The child support system was supposed to make things simpler. We would have a formula that would be used to quickly and easily work out what every NRP should pay. But it just hasn’t worked out that way. It has made things far more complicated, and at a time when fewer people than ever can access the assistance of a lawyer.

Could the system be simplified? I really don’t see how it could. As I said earlier, a non-discretionary system has to have virtually everything carefully defined, and that inevitably leads to complexity. And I haven’t even mentioned the complexities arising out of the fact that the child support system is separate from the courts and therefore has to have its own procedural rules.

There is, of course, an obvious answer: scrap the whole thing and return to a court-based system for everyone. Or is that just too simple?

Photo by Will Jackson 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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24 comments

Ian PItt - January 9, 2018 at 4:10pm

What actual value did this article bring to my life, sadly none. The issues isn’t necessarily with the way maintenance is calculated, its more systemic than that.

Default for 50/50 joint residency then there would be little need for maintenance payments in the first place. Fix the gate before the horse bolts!

Andrew - January 9, 2018 at 4:13pm

Family Courts are already at breaking point and, as you say, fewer and fewer people can afford lawyers.

I think your suggestion is a good one (in part). Scrap the CMS and all associated legislation. Government should not be involved…

Spike Robinson - January 9, 2018 at 4:56pm

While I agree the rigid formulas are badly flawed, I am more optimistic the formulas could be greatly improved without too much difficulty, preserving the intention of a simple system that can be operated inexpensively, without lawyers, and is easy for all involved to clearly understand. First of all a few things the current system is doing right:

– strict no nonsense enforcement for non compliance (though unfairly this is almost entirely lacking for non compliance with actual child arrangements)

– respecting the terms of a child arrangement order over actual child contact, when a PWC is obstructing contact under that order

– pushing parents towards private arrangements for payment and for amounts to be paid. (Unfortunately though the bad formulas set precedents that strongly influence private arrangements)

The rest of what is wrong with the formulaic approach comes down to its design assumptions. It’s perfectly clear that the formulas are designed for the stereotyped scenario “deadbeat dad, martyr mum”. For that scenario they work as well as could be expected. However those scenarios are the minority. In the remaining majority of cases, parents are forced into the same mold, inappropriately, with very bad outcomes for children and parents. Not least, perverse incentives for PWCs to obstruct children’s involvement with NRPs, and great and unnecessary increase in inter-parental conflict, one of the proven strongest negative factors affecting child welfare and development outcomes.

A few simple measures that would greatly improve the current rigid formulaic approach:

– work from a baseline of nil maintenance in 50/50 care
– calculate payments based on difference in income, rather than just the income of the NRP, which leads to the unfairness of a poorer NRP paying to a PWC richer than them, the same as they would pay to a poorer or no-income PWC
– consider the NRP’s basic need to live and to host the children – exactly as the courts are obliged to do, but which the CMS utterly disregard, leading to lack of contact, homelessness, even suicide
– as the beginnings of a system to bring child arrangements enforcement towards the same standard as child maintenance enforcement, allow the withholding of maintenance to the PWC in direct proportion that the PWC is obstructing ordered contact
– perhaps attach the same sanctions (loss of drivers license, etc) to non compliance with child arrangements, as are currently used to enforce non compliance with child maintenance
– strongly consider basing payments on the actual costs of child raising – as is done in almost all jurisdictions apart from the UK – rather than a punitive, moralising “bad dad tax” based on income. No other group in the UK is under such a heavy tax burden as separated dads. No other dads are forced by law to spend a high and fixed proportion of their income on their children. Or more accurately, to hand it over to ex partners to spend as they wish, entirely regardless of how high an income those ex partners may have.
– let the amount owing vary immediately at any time based on proven actual earnings. The delays and in particular the onerous 25% threshold for changes are guaranteed to adversely affect either one parent or the other. Immediate recalculation is fairest to all.
– calculate payments based on actual overnights instead of banding everything into only 3 bands (in effect only 1-2 bands), which creates enormous financial consequences and hence enormous conflict over as little as a single night of staying contact. All of which unecessary grief, entirely caused by the CMS itself and its rigid formulas, could be totally avoided if legislators were willing to accept that parents and CMS staff had the competence to use a calculator and divide by 365!
– treat all children as equal, regardless of who they are living with. If there is to be an income based dad tax, divide it between all the (NRP’s) children, equally, those that live with him/her and those that don’t. Rather than just a derisory pittance of a discount for children living with the NRP.

Above all the system needs to recognise that not all dads – sorry NRPs – are dodgy thieving deadbeat scroungers, and not all mums – sorry PWCs – are poverty-stricken struggling virtuous martyrs. It needs to understand that putting money in mum’s pocket is *not* always identical with “the best interests of the children” – another hidden but foundational assumption of CMS law. In many cases, this is far from the truth and opposite to the truth.

joseph lee - January 10, 2018 at 10:15am

It wants scrapping or going back to the old system as I am getting punished for haveing a high paid job. None of my living expenses gets takin into account one advisor said to me we don’t care if you loose your house or don’t pay your council tax as long as you pay this I think that is disgusting.

Stitchedup - January 10, 2018 at 1:54pm

“one advisor said to me we don’t care if you loose your house or don’t pay your council tax as long as you pay this”….. this is the absurdity of everything to do with family law and related criminal law. There’s no genuine attempt to maintain a meaningful and maintainable relationship between children and fathers.
Fathers are simply viewed as cash cows and if they don’t pay up and make their emotions known they’re driven into the gutter, cut off from their kids, driven over the edge and quite possibly convicted for something absurdly petty. That’s if they haven’t already taken their own life!!!

David BURROWS - January 10, 2018 at 12:44pm

That’s got teh comments coming in….

I think it is quite simple:

(1) An assessment based (ie administrative) system – if it was wanted – could be retained as the starting point for maintenance. Most cases would end there.

(2) Appeals (entirely discretio-based) could go to the family courts (ie district judges as now) who would have full discretion to decide the case according to the family concerned; and to any other child and family based issues also involved.

(3) Enforcement would be a matter for the civil courts (ie nothing to do with the absurdly complex (and 4-court based) system teh CS scheme now demands.

With Mervyn Murch I proposed a scheme akin to this in 1975 (long before any child support scheme had been deamed of). We called the civl servant at (1) a ‘family finance officer’: aaah…

David BURROWS - January 10, 2018 at 12:45pm

… sorry so many typos in that

M Ditchfield - January 15, 2018 at 10:59am

From the position of one who pays through direct payment to my Ex for the needs of the children, based on the CMA calculation, I fully support the view that parents should contribute towards their children’s needs when they are not living with them. I do however, have particular concern over the lack of any prerequisite for the recipient parent to account for how the money is spent on the children. Paying over £1k per month and struggling to see the children see more than nominally benefit from that contribution at the same time as the ex has multiple holidays a year makes me question who’s life is benefiting.

Considering the children are with me for the majority of weekends and 80% of the school holidays, I would welcome some requirement for the funds sent to be spent to meet the needs of the children and an opportunity to challenge where this is not apparent.

The current system, paints fathers as the negligent party for ‘abandoning’ their family regardless of the circumstances and provides little or no support for those of us doing the right thing.

At least there is some solace in the fact that there is a cap on payments.

BRIAN GILMORE - February 6, 2018 at 7:18pm

Can someone please explain to me how no factual evidence is sought by the CMO regarding the number of nights a child spends with the NRP.
None. Verbal evidence is all they require.

The PWC can dishonestly declare that the child only stays with the NRP for 1 night each week and inflicts a Band A grade upon the NRP falsely.
It is then left for the NRP to finance Mediation and a Court Order to attempt to get the correct banding implemented. This process costs in excess of £2000 and is an avoidable expense if the CMO sought evidence rather than accept verbal statements from those being financially rewarded to lie.

Spike Robinson - February 7, 2018 at 7:30pm

> if the CMO sought evidence rather than accept verbal statements from those being financially rewarded to lie.

Lying to the CMO for financial gain is the easy option. If caught out lying to the CMO, the PWC’s financial incentive then is deny the children any contact with the children. They will be richly rewarded, as will be the lawyers that the NRP will need to employ at his own expense over the 1-2 years it’s likely to take before a court will make an order that the children be allowed to see him again.

Spike Robinson - February 7, 2018 at 7:32pm

> deny the children any contact with – the children’s father, that should say of course.

This site would benefit from an ‘edit post’ feature. 🙂

Jo Archer - February 9, 2018 at 5:18am

Clearly the government’s ‘family arrangements’ idea is a flop. Pay what you can, willingly and the taxpayer won’t have to get involved!

Spike Robinson - February 9, 2018 at 12:40pm

I don’t understand that point? The taxpayer isn’t involved. The CMS runs at a profit as a quasi private enterprise. That was the point of setting it up and was the intention of the CSA too. The taxpayer has no responsibility for children of divorce. Unless you mean running the court system? But that’s not involved in child support, except due to pathologies like spurious harassment claims, DV allegations, NMOs, PSOs and CAOs being abused to squeeze extra child support payments from NRPs/fathers

Jo Archer - February 9, 2018 at 3:47pm

So, the government is not planning to write off £3.7bn-worth of debt? And who do you think is looking after your family, if you aren’t?

Spike Robinson - February 9, 2018 at 4:16pm

The debt write off is a write off debt that is fictitious and generated by years of systematic CSA error, as determined by the National Audit Office.

You seem to buy into a lot of myths. The myth that every PWC is struggling and on state benefits. My ex has a good job. The myth that a PWC would, or could, only apply for CMS because the NRP has refused to pay the going rate voluntarily. All these myths, and more, or wrong, in the general case and in my case. Yet the law is founded on these myths and justified on the basis of them. It’s a shame that you take an active interest in this topic but you haven’t educated yourself on the reality behind the myths. A reality that means unfit for purpose laws are doing incalculable harm to divorced and seperated children and families every single day in this country, on a vast scale. Please educate yourself so you can become part of the solution rather than part of the problem.

Jo Archer - February 9, 2018 at 8:54pm

Call them myths, if you like, but I have made no such assumptions. However, I have DEDUCED from the governments own figures that 880,000 women (predominently) will be affected by the government’s proposal to write off £3.7bn of unpaid chilld maintenance arrears. Given the well-documented incompetence of the CMS, there are sure to be many under and over calculations, but I cannot imagine ANYONE in their right mind would apply to the CSA if they didn’t ABSOLUTELY need to. Indeed, hundreds of thousands are NOT applying to the CMS for that very reason – and their children are going without any financial support from their deadbeat dads.

I know nothing about your PERSONAL circumstances – but it isn’t very safe (statistically) to extrapolate from them

Spike Robinson - February 12, 2018 at 11:29am

Jo, how exactly have you “DEDUCED” that 880,000 women would be affected by the write down? You must be “ASSUMING” that that money is actually owed to those women – to ALL of them in fact – despite the National Audit Office finding those debts are fictitious – which is why it’s being proposed to write them off. Even today the CMO admits that its concept of arrears is meaningless and every arrears statement it prints, every day, is pure fiction. This alone causes huge conflict between parents when the PWC wrongly interprets the CMS statement of “arrears” as being an actual debt to her, instead of a pure fiction of the bizarre CMS accounting practices. The CMS claims it is even today totally unable to stop its computer system issuing these fictitious arrears statements every single day, even though the staff know and admit that they are false and meaningless.

Jo - February 18, 2018 at 9:20am

My calculations come directly from the government’s own recent public consultation on its proposal to write-off the debt. Where does the NAO show that most of the debt is ‘fictitious’? I am owed £35,000 following a second tribunal decision (in Feb 2016) that the NRP is ‘diverting’ his income (after the first tribunal in 2012, he owed £20,000) and the Upper Tribunal has just confirmed that. So the debt to ME certainly isn’t ‘fictitious’. Nevertheless, the latest CMS ‘decisions’ are already in appeal to a third tribunal and while he is ‘voluntarily’ paying off his existing arrears at a rate of £500 per month, he is simultaneously running up further arrears at a rate of £200 per week. So for over a decade, my son has effectively loaned his father tens of thousands of pounds, interest-free….while he will happily pay £254,000 cash for a luxury yacht which the CSA, in its infinite wisdom, deemed a good reason for reducing our income as he claimed that he had liquidated an asset that DID come into the rubric in order to purchase the yacht that did not! Now, before you lay into me ask yourself why the HELL I have to put up with this….would YOU?

Spike Robinson - February 9, 2018 at 12:49pm

The family arrangements idea is a good idea that has flopped for a number of other reasons. One is that the PWC/mother can elect out of family arrangements and the costs of doing so fall disproportionately on the father/NRP – 4 times greater, regardless of whether the mother has more income than the father. This allows the threat of Direct Pay to be used as a weapon by the PWC. This was flagged up by the government’s own focus group work – by women as much as men – but the government ignored it’s own consultation. The penalties needs to apply equally and only to a party who is refusing an FBA, not to the party offering it!

Another factor is the numerous financial incentives and control incentives for a woman/PWC to portray the man/NRP as abusive, all of which are undermined if an amicable FBA is agreed.

It would also help if an FBA could not be repudiated at any time by the PWC (only!) without penalty.

Spike Robinson - February 9, 2018 at 12:52pm

> Pay what you can, willingly and the taxpayer won’t have to get involved!

You are perhaps labouring under the illusion that a mother/PWC would have to accept a voluntary payment at the CSA rate or above. In fact as in my case and many others, a PWC can and will initiate a CMS case for enforcement without showing any cause whatsoever, even when voluntary payments at or above CSA rates are demonstrably being made and made on time.

Andrew - February 11, 2018 at 10:05am

CM should be time-barred – like any other debt. On bankruptcy it should be capitalised by a formula (not difficult when it is apparent when it will end) and proved as a debt and discharged – like any other debt.
.
Likewise SM, and unpaid lump sums, except that they should be postponed for dividend behind all other debts – but still discharged.
.
If that is wrong, why is it wrong?

Jo Archer - February 18, 2018 at 9:09am

It is wrong, Andrew, because any other debt attracts interest and the debtee can assign it to a third party or apply directly to the courts for a liability order and get a charge on immovable property, whereas the PWC has to rely on the CSA/CMS who have not even used the powers Parlaiment has already given them!

Yvie - February 12, 2018 at 10:08am

Also the majority of fathers on low incomes are usually in jobs that pay statutory sick pay only. This does not seem to matter to the CSA who still require the same amount from the father even though he may not have earned it. Only after 12 weeks does the CSA take sickness pay get taken into account. For the first 12 weeks the amount owed but not earned builds up as arrears.

Spike Robinson - February 12, 2018 at 11:13am

Yes the CMS is absolutely brutal towards fathers. By law it is not allowed to take any consideration of their basic needs or ability to pay. By law it accepts unevidenced hearsay to the detriment of fathers and children. By law it ignores factual evidence and actual reality to the detriment of mothers, fathers, and children alike. Time and again the needless and pointless conflict generated by the blind brutality of the CMS prevents relationships from normalising after divorce and that is causing lasting damage to children, every day. The CMS is damaging children, every day. It MUST be reformed or replaced by a fairer system that is genuinely gender equal, fair to both parents, prioritising the interests of the children and not naively assuming that equals giving draconian powers to the mother to demand money for herself.

So yes John’s suggestion of returning the process to the court would be a huge improvement. Judges are much more likely to see the bigger picture and incorporate the circumstances and legitimate needs of all parties. I imagine most judges would look in horror on the decisions that the CMS enforces on a daily basis without any qualms.

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