A key concern regarding child support
A key concern regarding child support is on whom the burden of support for children primarily fall. Ultimately, is the state responsible for the financial support of children (although the state can recover the money from parents) or are the parents responsible (although the state can intervene to support children if the parents fail)? In other words, is it the state's primary role to enforce parental responsibility to pay child support, or to give guaranteed support itself for the child?
Krause suggests that the obligation is divided between society and the parents: ‘children have a right to a decent start in life. This right is the obligation of the father and equally of the mother, and in recognition of a primary and direct responsibility, equally the obligation of society.'
Looking at the matter from another perspective, it is possible to regard the question as one of children's rights. If it is accepted that children should have rights then it seems obvious that children have a right to the financial support necessary so that they can, at least, be fed and clothed. Article 27(4) of the United Nations Convention on the Rights of the Child declares: ‘State parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad...' Considering the state is a more dependable supporter than the parent, it is in the child's interests that the state should have the primary obligation to ensure children receive adequate support, but how the state's responsibility is satisfied may vary from one family to another.
The Government's White Paper, Children's Rights and Parents' Responsibilities regards the burden of child support as evidently on the parents, and considers the Government's role as ‘helping' parents to satisfy their responsibility. The issue is made even more complex in that the state's approach to child support may seek to pursue a variety of claims. As well as ensuring that the child is adequately provided for, a scheme may also attempt to discourage births out of marriage, to punish unmarried fathers, or to reduce the legal aid costs associated with relationship breakdown.
The arrangement in England and Wales is that the financial support for children is provided by the state for low-income and unemployed parents, and by parents for better-off households. However, the state does identify some obligation to all children by supplying child benefit payments to all parents immaterial of wealth. There are two main aspects of the Government's response to poverty among children. On the one hand, there is the ‘New Deal' for single parents, which is meant to encourage them to seek employment. On the other hand, there is the Child Support Agency, designed to collect money from non-residential parents.
A recent Government document on child support states: ‘Parents, whether they live together or not, have a clear moral as well as legal responsibility to maintain their children. Relationships end. Responsibilities do not. Government and society as a whole have a clear interest in making sure these responsibilities are honoured.'
In R (on the application of Denson) v Child Support Agency, Munby J rejected an argument that the Child Support Act 1991 was incompatible with the non-resident parent's rights under the ECHR. Munby J held that the Act attained a proportionate response between the non-resident parent's rights under Articles 8 and 1 of the first protocol, the non-resident parent's responsibilities towards his or her children, the need for a system that delivered fair and consistent results, and the interests of taxpayers in being relieved of the support of parents with care of the children.
Sheldon, by contrast, is not convinced that the present law adequately protects children's interests. She argues: ‘Leaving children dependent on the economic means of their parents has contributed significantly to the widespread poverty of women and children and, in countries where the wealth to rectify this situation exists, this should be cause for national shame.' She, therefore, argues that the state should be deemed as primarily responsible for the financial support of children. This view has also received support from Bainham who rejects an argument that men who have a ‘one night stand' should be taken to accept responsibility for the resulting child. Kapp seems to be in agreement with this too.
Conversely, the burden of raising children in low-income households most commonly falls on women. To refute that fathers are financially responsible and render single mothers dependent on the state for financial support is likely to raise poverty among women unless there is a big change in political attitudes towards lone parents.
Scott has argued that parents can be said to be liable to pay child support because they have wronged the child by allowing their relationship to become discontented. The enforcement of child support reprimands this wrong and discourages such behaviour. It also forces people to consider carefully about having children if they are insecure in their relationship. To some, this argument will appear to be an expression of moral disapproval for sexual behaviour outside committed relationships, which is inappropriate in a pluralistic society.
The law continues to embrace the view that, in the event of separation and divorce, is it up to the individual parents to decide for themselves how to allocate their resources between them. As Eekelaar and Maclean have observed:
‘Western countries have been tenacious in retaining the ideology that a child should look first to its parents for the retention of its living standards, even after the collapse of the family unit. The state, it is true, has been ready to move in as an ultimate guarantor against an unacceptable level of poverty, but even in this situation assistance has frequently been conditional on the instigation of legal machinery by the child's caregiver to extract support from the other parent.”
With the exception of a parent who is dependent on income support, it is up to the parents themselves to undertake this responsibility, if and when they consider it to be necessary. In other words, the law trusts parents to put their children's interests first when conferring division of their assets and will not check whether the settlement reached will provide the children with an appropriate standard of living.
The titles to the papers specifying the government's proposals for the child support system, using phrases such as ‘Children Come First' and ‘A new contract for welfare: Children's Rights...' might imply a real concern to enhance children's financial support, perhaps by supplementing their provision with state subsidies, as visualised by the Finer Committee in the early 1970s.
The introduction of the CSA 1991 was intended ‘to ensure that parents honour their legal and moral responsibility to maintain their own children whenever they can afford to do so'. As Lewis notes, the introduction of the child support legislation mirrored the Conservative government's wish to lessen public expenditure and its belief that state benefits were actually facilitating the creation of one-parent families. The idea of lowering the benefits paid to lone mothers through increasing their income from other sources was attractive.
It was largely the government's intolerance with the courts for generating inconsistent maintenance orders, often for impracticable amounts, and often lower than could be afforded by ‘absent parents', which led to a new administrative system being established. The CSA 1991 created a single government agency to take over from the courts the job of assessing and then collecting maintenance payments from non-resident parents.
The aim of the new legislation was to emphasise to fathers their responsibility for maintaining their biological offspring. Indeed, as Lewis highlighted, it reflected the philosophy of the Children Act 1989; it was as much about stressing to parents that it was they, and not the state, who had a responsibility for their children, as about enforcing their responsibility for their children.
The underlying motive of emphasising parental responsibility was, of course, to reduce state support. Fathers were classified in their traditional role, as a source of income. There was definitely no intention to develop the relationship between the father and child. For example, there was no mention of the Finer Committee's recommendation that single-parent families should obtain an additional state subsidy, a Guaranteed Maintenance Allowance, proposed to give single parents a real choice between staying at home and going to work.
It's easy to dispute that the parents who created the child should each have an equal responsibility for supporting him or her. It is acknowledged though that, in reality, applying this principle is not so clear-cut. For instance, the nature of the relationship between the parents might influence the principle of financial responsibility, especially where the man did not consent to have the child in the first place. Women can exert control over certain contraception and decisions about termination ultimately lie with them. Some may feel that if the woman chose to continue with the pregnancy despite the lack of an ongoing relationship with the father, or where the father did not consent to having the child, he should not be held responsible for supporting it. On the other hand, one may argue that men do have choices about contraception and so they should have to face up to the consequences of their actions.
Another issue surrounding financial support is where the non-resident parent has little, or no, contact with the child(ren). Various arguments may be made on this issue, depending on the different circumstances. For instance, in cases where contact is viewed as ‘unreasonably' denied by the parent with care, for example as a means of ‘punishing' the non-resident parent, some may feel that responsibility for supporting the child should rest entirely with the parent with care. Equally, you could argue that both parents ought to be financially responsible for looking after the child, regardless of contact. Personally, I feel that contact with children can, and should, be pursued separately through the courts. It should also be considered that if contact has been denied as a result of violence, this may create an even greater obligation on the non-resident parent to contribute to the child's upbringing.
Another concern regarding parental responsibility is whether step-parents should also be expected to support their partner's child from a previous relationship. One view may be that if the parent with care has a new partner then the new partner should assume some responsibility for supporting their new family. An alternative view, however, may be that responsibility for supporting children ultimately lies with the biological parents and that while step-parents may offer to support step-children, they shouldn't necessarily be expected to do so.
Still, the state is also perceived as having a role to play in financially supporting the children of separated or divorced parents. The ‘safety net' of the welfare state was regarded as the key to ensuring that children do not suffer significantly because of the absence of a parent, be it through bereavement, relationship breakdown or the choices of their parents. Indeed, children of single parents must be looked after both because they may be a particularly vulnerable group and because they represent the future of the nation.
While accepting the fundamental principle of parental responsibility for their children, it is also recognised that there are circumstances in which parents cannot sufficiently support their children without state aid. This may be the case where one or both parents are unemployed or have low-paid jobs, for example. In such circumstances, it may be argued that while both parents should contribute to the support of their children, they are entitled to state aid.
The role of the state in securing child support payments from non-resident parents has been discussed above. It has been considered though that the CSA may intervene in previously harmonious arrangements and cause hostility between the parents and, potentially, further distress to the children, as opposed to providing relief. Thus, I feel that the CSA's involvement, hence state intervention, should probably be restricted to situations in which agreeable child support arrangements are non-existent or break down. In conclusion, it is clear that the principles on the matter are murky and, ultimately, depend on the facts of the individual case.
Department for Social Security (DSS), Children Come First, Vols I and II, Cm 1264 (1990) HMSO
Department for Social Security (DSS), White Paper Children First: a new approach to child support Cm 3992 (1998 b) The Stationery Office
Department for Social Security (DSS), A new contract for welfare: Children's Rights and Parents' Responsibilities Cm 4349 (1999)
Department for Health and Social Security (DHSS), Report of the Committee on One-Parent Families Cm 5629 (1974) HMSO
Eekelaar J and Maclean M, Maintenance after Divorce (1986) OUP
Lewis J, ‘Family Policy in the Post-war Period' in S Katz, J Eekelaar and M Maclean (eds) Cross Currents: Family Law and Policy in the US and England (2000) OUP