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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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.

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