Engendering confidence in the child maintenance system

Child maintenance continues to be one of the largest thorns in the side of the family justice system, plagued by issues over historical debt, enforcement, and structural inefficiencies.

In the face of austerity measures, the Child Maintenance Service (CMS) now operates a scheme available to those willing to pay, with the government continuing to keep the problem at arm’s length, heavily promoting ‘family-based arrangements’ (wherein parents reach their own child maintenance agreement without relying upon the CMS).

In a 2013 report, the Department for Work and Pensions (DWP) accepted the practical difficulties in collecting maintenance arrears and indicated that just 12 per cent of arrears were ever likely to be recovered. Stating that collecting arrears was ‘expensive and managing it requires today’s taxpayer to fund past inefficiencies’, the DWP confirmed that the focus in the future would be to concentrate on cases who will ‘benefit from regular ongoing maintenance payments today’.In short, the government had hoped for a child support renaissance with the conversion from the Child Support Agency (CSA) to the CMS schemes, quietly seeking to draw a line under legacy issues from the old system. However, the current CMS scheme has recently come under criticism from Mr Justice Mostyn, who commented on the ‘extraordinary state of affairs’ of the child support system in Green v Adams [2017] EWFC 24.

This related to a schedule 1 application by the mother, forming part of 14 years of near constant litigation, including the mother’s previous tribunal appeal in November 2016, seeking an ‘assets’ variation under regulation 18 of the Child Support (Variations) Regulations 2000, with the father having been assessed as holding £830,000 of qualifying assets under those regulations.Mostyn J decried a ‘scandalous’ situation that had seen a multi-millionaire father pay just £3,819.40 in child maintenance from April 2009 to April 2014. The father, aged 65, was a non-resident parent in receipt of the state pension, with personal assets exceeding £5m, who was now paying only £7 per week maintenance for his son.

The judge criticised changes to the child maintenance scheme, bemoaning that judges previously had the power to order a low-earning, non-resident parent to pay greater maintenance if their assets allowed. The latest tranche of legislative changes implemented by the Child Maintenance and Other Payments Act 2008 has removed this ability.In concluding his judgment, Mostyn J stated that the government needed to review the matter ‘urgently’.The timing of the comments was apropos to a Work and Pensions Committee interim report, which reviewed the history of child maintenance together with the CMS scheme’s performance thus far.In a wide-ranging series of recommendations, the committee acknowledged that there were a significant number of receiving parents who had been failed by their former partners and by the system. The committee recommended that those on means-tested benefits should not be required to pay the CMS application fee and a greater level of training and awareness should be given to understand issues of domestic violence and abuse, supporting some of the most vulnerable parents in society.

In addition, the committee recommended the reinstatement of provisions to allow parents to challenge child maintenance awards on the grounds of a paying parent’s assets and lifestyle, which may appear inconsistent with their disclosed income.Successive governments have failed to satisfactorily grapple with child maintenance and there is no real suggestion of imminent change to the status quo. The government has arguably still failed to address the core issue affecting receiving parents: confidence in the system.In these times of ongoing austerity, the government has shifted a financial burden and onerous obligations on to a receiving parent, asking them in effect whether they have the funds, patience, and tenacity to pursue child maintenance, rather than satisfactorily commanding the paying parent to comply with their statutory obligations to pay.

Furthermore, in tinkering with regulations, the government has restricted two of the most commonly utilised variation routes, restricting a receiving parent’s scope to challenge perceived injustices in child maintenance payments.As we move inevitably toward an online justice system, reforms to the scheme that seek to rely on technology and attempt to minimise the administrative burden on the state must be embraced. It is imperative that changes engender the confidence of the receiving parents, assured with the greatest degree of certainty possible that payments will be received and that any maintenance agency is not merely a paper tiger, lacking the teeth to robustly enforce calculated payments against those who avoid paying a sum of maintenance that appropriately supports children.

Philip Hunter is a partner at Hunter and Uro @HunterUro

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