Old Wine In New Bottles
The Recent Child Maintenance Reforms Have Been Described As A Case Of ‘Old Wine In New Bottles' (Parkinson).
Discuss With Reference To The Child Maintenance And Other Payments Act 2008
In order to assess whether the recent child reforms are a case of “old wine in new bottles”(Parkinson a2007 p.814), it is necessary to explore the origin of the Child Support system, the reasons behind its lambent failure, and then consider whether the most recent reform; the Child Maintenance and Other Payments Act 2008, represents a “clean break” (Henshaw 2007) as envisaged or whether this legislation represents yet another missed opportunity (Jones & Perrin 2009) which is simply re-branding the Child Support System as the Child Maintenance Enforcement Commission.
The Child Support Act 1991 was enacted as it was considered that the courts were failing at fairly and consistently assessing and enforcing the payment of child maintenance. As a result, the cost of maintaining these children fell upon the taxpayer not the liable non-resident parent.
The Child Support Agency established pursuant to the CSA 1991 has been an embarrassing failure described as the “greatest public administration disaster of recent times”(Leigh 2007). Its underlying objective was to recoup money for the treasury (Wallbank 2007).The original scheme under CSA 1991; “Mark one” applies an inflexible, strict formula when assessing maintenance payable. “Departures” to this formula were made available by the enactment of the CSA 1995. The scheme proved unsuccessful, a result of complicated formula, lack of incentive for the non-resident parent (NRP), problems with the IT systems processing the cases and lack of enforcement powers available to the agency.
In a bid to reform the failing CSA the Child Support, Pensions and Social Security Act 2000 was passed. A new scheme was implemented as of March 2003; Mark 2, with all cases after that date being calculated on a new “simpler formula”, it allowed for parents with care (PWC) on benefits to keep £10 of the maintenance received “the maintenance bonus”, whereas under Mark one the maintenance recovered was off-set against benefit entitlement; reducing the parent with care PWC's benefit entitlement pound for pound. It further provided the agency with new enforcement powers against the recalcitrant NRP. The provisions have not succeeded in turning around the failing Child Support Agency; figures published in 2007 showed 66% full case compliance in the Mark one scheme and only 49% in the Mark two scheme (DWP 2007). Lack of utilising the enforcement powers meant the non-paying NRP's rarely faced sanctions. Further serious problems with the IT systems resulted in only about half of the Mark one cases transferring to the Mark two scheme. Further the aim of recouping expenditure for the treasury can be seen to be a complete failure; the CSA has momentous debt which stood in 2007 at £3.5billion, with £2.1 billion thought to be uncollectable (DWP 2007).
It is noted that further reform has been implemented by way of the 3-year Operational Improvement Plan which began in 2006; costing a further £320 million to tax-payers. Its core aims were to “get it right...keep it right...put it right...and get the best from the organisation”(Child Support Agency; Operational Improvement Plan 2006), and provide a better platform for the most recent reform.
It is this reform to which attention will now turn; The Child Maintenance and Other Payments Act 2008. It is not completely fresh legislation; it repeals and adds further amendments to the CSA 1991 and further does not make the welfare of the “qualifying child” the paramount nor a consideration when child maintenance is calculated. This is strange considering the welfare of the child is the paramount consideration in the Children Act 1989.
S.1 CMOPA 2008 provides for the establishment of Child Maintenance Enforcement Commission, C-MEC; a non-departmental agency which has taken over responsibility from the Child Support Agency for calculating, collecting and enforcing child maintenance. Those who are employed to work in the commission are those that were employed by the CSA, and to this extent the reform is most definitely a case of “old wine in new bottles”. However, inspection of the changes which the Act makes to the maintenance system must be explored to conclude whether or not this description extends to (Mark three); the new child maintenance system as a whole.
The commissions main objective s.2(1) is of “...maximising the number of those children who live apart from one of both of their parents for whom effective maintenance arrangements are in place”. The Act does not define what “effective maintenance arrangements” are; are they to be assessed on amount or frequency of payments made?(Wiekely 2007)
The subsidiary objectives s.2(2)(a) “to encourage and support the making and keeping by parents of appropriate voluntary maintenance arrangements for their children” and 2(2)(b) is to “support the making of applications for child maintenance under the CSA 1991 and to secure compliance when appropriate with parental obligations under that Act” . Emphasis has been placed on encouraging private agreements.(Wiekely 2007)However, the enforcement weapons available to the Commission and which will be later discussed are not exercisable in enforcing private arrangements. Only where the PWC is a client of C-MEC will the Commission be able to utilise its “weapons”.
Of course where there has been breach of a consent order of the court enforcement mechanisms are available, but court orders for child support are only effective for 1 year; there is risk that after a year the non-resident parent may go to C-MEC regardless of the arrangement in place. Litigation is expensive and as legal aid will not available consent orders may not be a viable option for many separated parents.
Therefore C-MEC needs to be and be seen as a viable effective secondary option, giving the PWC the power and belief that their private arrangement does not work out they can say to the NRP “ if you don't comply I will go to C-MEC”. If it is not there is a “major risk of re-enforcing any existing power imbalance between separated parents, this would be detrimental to the child” (Wiekely 2007).
The Act places a statutory duty on CMEC to “promote the principle of child maintenance and provide information and guidance as it thinks appropriate”; s.5 CMOPA 2008. The establishement of Child Maintenance Options is one way which C-MEC has sought to fulfil this duty; a website giving parents impartial advice. However advice is mainly telephone based and has been considered to be more of a signpost (Jones & Perrin 2009) than an advice agency; it mainly directs parents to other advice centres and websites. (Wiekeley 2007) ; It remains to be seen whether this agency is successful in helping separated parents chose the right route with regard to maintenance arrangements.
The first major amendment is the repeal of s. 6 and s.46 CSA 1991 by s.15(a)-(b) (respectively) CMOPA 2008; PWC on benefits are no longer compelled to use the (CSA/C-MEC), and will no longer have their benefit entitlement reduced by virtue of maintenance payment; child maintenance will be fully disregarded for the purposes of calculating all out-of-work benefits by 12thApril 2010. This is a dramatic alternation and can be considered entirely new provisions, and will in effect abandon one of the CSA's 1991 original core functions; recouping money for the treasury. It is hoped that the repeal of this section will result in more money reaching those families who are most in need and that the NRP will see a greater incentive in complying with maintenance arrangements as the money they pay will be seen by their child. The abolishment of the requirement that PWC on benefits to use the system will potentially increase the number of private arrangements being made, and therefore reduce the caseload for CMEC; considering that 70% of the cases dealt which were dealt with by the CSA were benefit cases.(DWP 2006) .
Calculations will now be made by reference to the NRP's gross income of the previous year's earnings not the present net income and further amends the formula used to calculate maintenance payments, (Schedule 4 CMOPA 2008). However the applicable formula again fails to give effect to research which clearly shows the cost to maintain a teenager is more than that of a young child (Parkinson 2007). It is noted that the commission has been given access to Her Majesty's Revenue and Customs data schedule 6 para 2, rather than having to rely on the NRP to provide payslips. It is hoped that in doing so will speed up the process and avoid the delay caused by non-compliant NRP's . Although this may increase effectiveness in some cases, the fact that HMRC's data is contained on 12 different data bases around the UK means that the income of those NRP's with more than one job will still be time-consuming (Wiekely 2007). Furthermore there continues to be a problem with those NRP's who are self-employed who do not disclose their true earnings.
It is acknowledged that the CMOPA 2008 has equipped the Commission with improved collection methods and tougher enforcement powers. The use of Deduction form Earning Orders are to be used as the standard form of collection; s.20 CMOPA, this is likely to remove the delay of waiting for NRP to pay maintenance, and should increase case compliance. Furthermore the Commission has jurisdiction to use Regular Deduction Orders, s.22 CMOPA 208 enabling CMEC by administrative action to issue an order on a defaulting NRPS bank to make regular deductions, no longer requiring an order from the court. It is submitted that this two provisions could prove very effective.
Furthermore liability orders can now be made by the Commission's own volition when it is satisfied that a person has failed to pay an amount of chid support maintenance, S.25 CMOPA. There is no longer a requirement that an application be made to the Court, which has been considered time-consuming and causes delays.
It is noted that the 2008 legislation has further equipped the Commission with various high level sanctions which can be used where all other enforcement methods have been tried; s. 27; disqualification of for holding or obtaining travel authorisation and s.28 curfew orders; in addition to the previously available disqualification from driving and committal to prison. It is noted that the Welfare Reform Act 2009 to which Part 3 relates to child maintenance has further extended the powers of the commission in this respect, the Commission may confiscate passport and driving licenses by their own volition; S. 53 Welfare Reform Act 2009. It is noted however, that these provisions are yet to be implemented. Will these new enforcement provisions be used? If they are not they are just “an empty threat”, and NRP's will be no more likely to pay than they were before. One will have to see whether the additional methods are in fact used by the agency. It is further noted that the Welfare Reform Act 2009 also includes a provision which compels joint birth registration, it is submitted that when this comes into force this will aid Commission in identifying and locating NRP.
The child maintenance reforms have all purported to simplify the formula and increase enforcement powers. It is true that the CMOPA has in addition to these made significant changes, repealing the sections compelling PWC on benefits to use the child support system and taking maintenance payments into account when calculating benefit entitlement. To this extent this reform is not a case of “old wine in new bottles” but its success is dependant on a number of factors; whether the Commission is provided with the funds they require to fully implement this reform (which have not been guaranteed (Work & Pensions Committee 2009), whether the new “off the shelf” (HOC Work & Pensions Committee 2009) systems they intend to use to process and calculate maintenance is effective, whether parents are provided with the proper support and advice they need to make appropriate arrangements, whether the enforcement provisions are utilised in compelling NRP's to pay and whether a significant change is made to peoples perception to the idea that child maintenance is a normal obligation of parenthood norm regarding child maintenance for such to be regarded as the norm. If these are not successful then there is a major risk of returning to the pre-2003 days (House of Commons Work & Pensions Committee 2009). The Commission is under huge pressure, by 2011 it will be running three different schemes and there is real potential that this reform could undo any progress the CSA has recently made.
There was a genuine chance for completely new legislation to be enacted, provisions could have guaranteed maintenance as is the case in the Australian system and the child could have been made the paramount consideration when calculating maintenance liabilities. It is these provisions which would have undoubtedly proved to be effective in meeting the Government's 2020 poverty targets, but once again the governments apprehension of the cost such would incur has prevented this reform form truly making a “clean break” from the failings of the previous system (Parkinson 2007).
Wikeley, N. (2007) Child support reform - throwing the baby out with the bathwater? Child and Family Law Quarterly Vol 9/Issue 4 pp 434-451.
Jones, J & Perrin, C.L (2009) Third Time Lucky/ The third child support reforms replace the Child Support Agency with a new C-MEC. Journal of Social Welfare and Family Law Vol 31 No 3 pp 333-342.
Parkinson, P (2007) Reengineering the Child Support Scheme: An Australian Perspecitve on the British government's Proposals. Modern Law Review Vol 70 Issue 5 pp 812-836.
Walker, K (2009) family: On guard! New Law Journal Vol 159 Issue 7393 pp 1569…..
Wikeley, N (2008) Child Support; The Brave New World. Family Law Journal Vol 38 pp1024….
Wikeley, N (2008) Child Support: Carrots and Sticks. Family law Journal Vol 38 pp 1102…
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House of Commons Work and Pensions Committee Child Support Reform Fourth Report of Session 2006-07
House of Commons Work and Pensions Committee The Child Maintenance and Enforcement Commission and the Child Support Agency's Operational Improvement Plan Third Report of Session 2009-10 page22 at para 75
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