Taxing Fatherhood

Ha, yes, divorce.  From the Latin word meaning to rip out a man’s genitals through his wallet.

US comic Robin Williams

Journalist Philip Johnston described 1991 as ‘a vintage year for bad laws’ (Johnston P. , 2010).  Along with the War Crimes Act, the Dangerous Dogs Act and implementation of the Children Act, this was the year of the Child Support Act.  The consequence of wide-scale family breakdown and the exclusion of fathers is a large number of besprizorniki who must somehow be paid for.  The solution adopted by most jurisdictions is the payment forcibly extracted from putative fathers known as child support.  No aspect of the UK family justice system has been overhauled more often than child support, yet it stubbornly refuses to fulfil its purpose.  Political understanding of the system – and hence political intervention – mirrors the understanding of father absence generally – and we saw in Chapter Fourteen how feeble that is – and seldom transcends the observation that it costs a great deal to run and fails to collect the money allegedly owed.

A brief examination of the history of Child Support in the UK demonstrates the difficulties in establishing a fair system.  There is no easy way to arrange financial provision for children after a marriage or cohabitation breaks down; the facts that there are now two households and that either parent may go on to form new relationships and have additional children mean that there is rarely enough money to go around.

In the Middle Ages responsibility for single mothers and their children was taken from the charity of the Church and handed to the Magistrates Courts where it first became secularised and subject to legislation.  Under the Old Poor Law support was administered locally by the parishes which reclaimed their expenses from the children’s fathers; the system was efficient and up to 97% of the cost was recovered.  In 1576 responsibility was transferred directly onto the putative fathers, establishing for the first time a legal and administrative mechanism for the collection of Child Support; from 1609 fathers who did not pay up could be gaoled.  Money recovered went to the parish, not to the mothers.

By the early 19th Century between 25% and 38% of parishes’ budgets was spent supporting lone mothers, though many could also recoup this expenditure, sometimes by allowing fathers to spread repayment beyond the period during which the mother would receive support.  Strongly censorious Christian evangelicalism brought about a change in social attitudes which blamed the condition of single mothers on their presumed promiscuity.  In 1834 the New Poor Law replaced the Old, and sole responsibility for illegitimate children under the age of 16 was transferred to their mothers; if they couldn’t support them they would have to enter the workhouse which aimed to eliminate the problem of fatherless children by making life within as wretched as possible.  Putative fathers were freed of any legal responsibility and could no longer be imprisoned for non-payment, and could thus more easily evade their responsibilities; payments continued to be made to the parish and not to the individual mother.

The reform was so unpopular that within 10 years the Government performed a U-turn, shifting responsibility back onto fathers and allowing mothers to pursue them through the Petty Session Courts.  Thus bastardy proceedings were no longer conducted under the Poor Laws and became civil proceedings between parents.  Those mothers who could not afford legal recourse turned to the parishes, which then were not empowered to recoup their expenditure from putative fathers.  In 1868 the law changed again to restore this power to parishes.

In 1878 the Matrimonial Causes Act gave magistrates jurisdiction in divorce cases via separation orders, and provided a minimum level of maintenance, it also established another complicating layer of jurisdiction.  This measure re-criminalised the non-payment of Child Support, and a father who did not pay could be arrested, summoned or have his assets sold.  Most non-payers were imprisoned for up to 3 months; such punishment, however, cancelled the debt, so mothers remained the losers.  For a mother to prove ‘affiliation’ (i.e. the obligation of a named father to take financial responsibility for a named child) necessitated difficult and costly enquiries in the public courts of the Quarter Sessions.  In 1872 a father could pay a maximum of 5 shillings a week under an affiliation order; this rose to 10s in 1918 and to £1 in 1925, and did not change again until 1952 by which time it was worth about £20 in today’s terms.  In 1914 collection officers were appointed, but the onus for collection and enforcement remained with mothers who could only bring actions – if they could afford to – after the child’s birth, and so were often impoverished during the crucial time before.

From 1935 a man could be imprisoned only if he had the means to pay, and the numbers imprisoned fell.  Most men, particularly if they had a second family, simply could not afford to pay, and punishment worked in no one’s interest, least of all the state’s which then had to pay for both parents’ upkeep.

The Beveridge report of 1941 led to the formation of the Welfare State which was intended to eliminate the ‘five giants’ of want, ignorance, squalor, idleness and disease.  Beveridge had requested evidence from women’s organisations on the issue of single parenthood, but none responded; he recommended state support, but Atlee’s Government rejected this on the grounds of cost.  The state treated widows and divorcees more sympathetically than unmarried mothers; widows were eligible for benefits not available to unmarried mothers who could depend only on Supplementary Benefit and charity if they did not receive maintenance.  As recorded in Chapter Three, the Government introduced the Family Allowance payment in 1945 following campaigning by early feminists such as Eleanor Rathbone.  This has now become the central injustice of family law, acting as a gateway which demands that mothers care while fathers provide, and establishing the central gender inequality from which all others stem.  It bolsters the residence/contact pattern of post-separation parenting and ensures that mothers retain the power in the relationship: receipt of Child Benefit determines who is the ‘primary carer’.

The Second World War was followed by a sharp rise in divorce.  In 1948 the National Assistance Act gave husbands and wives equal liability for supporting each other and their children; the Maintenance Orders Act of 1958 sought to find an alternative to prison by enabling deductions from earnings; legal aid for affiliation actions was introduced, and in 1968 authority for collection was handed to the Supplementary Benefits Commission and the liability limit on affiliation orders was removed, but assessments remained low to increase the likelihood of fathers at least paying something.  1968 also saw publication of the Finer Report on One-Parent Families, the first time the condition of lone parents had properly been examined.  Its aim was to reduce the number of lone parents receiving Supplementary Benefit, which by 1972 had reached 238,000.  The authors recognised the difficulty of combining child care and work, and

established beyond a doubt that most one-parent families could not subsist on the proceeds of the maintenance orders, or on any amount to which it would be possible to increase them while permitting the liable relative himself to subsist without assistance.

They recommended, as Beveridge had done, that the state rather than fathers should support single mothers, and proposed transferring responsibility for assessing and collecting maintenance from the Magistrates’ Courts to the Supplementary Benefits Commission and a single benefit for lone parents which would support the mother as well as the child, to be collected from the father.  Although the report was rejected due to the cost of implementation – estimated at £190 million a year – it had a significant impact on future thinking.

The 1986 Social Security Act mandated that both men and women were liable to maintain their children to the age of 19, even if they were divorced, separated or the child was illegitimate.  If a person for whom another was liable was claiming benefits, the liable person could be ordered to pay an ‘appropriate sum’.  The Family Law Reform Act of 1987 abolished affiliation proceedings, and the legal distinction between legitimate and illegitimate children.  Unmarried fathers were encouraged to take responsibility by being accorded ‘rights’.

By the late 1980s only 7% of the cost to the taxpayer of supporting lone parents was being recovered from ‘liable relatives’ (Davies, 1998).  Sixty per cent of single mothers claimed benefits but only a third received maintenance payments.  Lone parent numbers had grown to 770,000 and benefit payments had increased from £1.4 billion in 1981/2 to £4.3 billion in 1990/1 (Nutt, 2006); the cost of child support had risen to £6.6 billion because it was easier and more attractive for mothers to rely on the state than on their children’s fathers.  This situation was driven by increasing family breakdown: divorces involving children more than doubled after 1970; two thirds of these were initiated by wives, and fathers were being excluded from their children’s lives at an alarming rate thereafter.  In the same period the proportion of children born outside marriage rose from 8% to 30%.

Thatcher’s government feared this growing ‘dependency culture’ and, as serial monogamy replaced traditional marriage, sought to restore time-honoured values through its ill-fated ‘back to basics’ campaign.  In 1990 the Social Security Advisory Committee, set up to resolve the funding problem, noted that while the number of lone parents claiming benefits was increasing, the amount of maintenance paid by non-custodial parents had remained static.  A White Paper in October, Children come first, was succeeded by the Child Support Act the following year which in turn enabled the establishment in 1993 of the Child Support Agency (CSA) with responsibility for assessment, collection and enforcement, something recommended originally in the 1974 Finer Report.

Essentially the system was an off-the-shelf copy of the American one; the US and UK faced similar problems over the enforcement of Child Support and the Reagan and Thatcher governments adopted similar ideologies.  The Child Support Act 1991 was a fudge, hastily and inadequately debated and executed, a Treasury-led scheme to reduce benefits payments to single mothers; implementation was rushed and there was no pilot scheme; staff were recruited from the inefficient and ineffective predecessor of the CSA, the ‘liable relatives unit’ of the DSS, or from the private sector with no experience of public sector working.  Whereas child support had hitherto been assessed according to the financial cost of supporting a child, with those costs recovered from the father, this Act redefined child support as a percentage of the father’s income.  Lord Haughton summarised,

This bill is not a child support bill; it is a taxing bill… it is a middle class approach to continuing obligations of men towards their children  (Hansard, 1991).

Under the Act the ‘welfare of the child’ promoted by the 1989 Children Act was reduced to a legally enforceable financial contract, government aimed to change the prevailing consensus that a father’s primary responsibility was to any second family he might have while the state would take care of his first, expressing the vain hope that he should have no more children than he could afford.  The result of this legislation is that 95.3% of parents designated ‘absent’ are fathers.  The Act introduced a rigid and complicated formula for the calculation of maintenance, replacing a system which had been discretionary and elastic, but inconsistent.  Responsibility for assessment, collection and enforcement was handed to a new body, the Child Support Agency (CSA).  The measure has not been a success: in July 2007 the divorce barrister Nicholas Mostyn (now a judge) said of it,

The performance of the CSA has been the greatest failure of public administration in the history of this country.  The figures are simply mind-boggling.  In its history, it has assessed about £8bn in child maintenance, and managed to collect about £4bn at a cost of £3bn.  You might as well just pay them out of taxes (Barber, 2007).

The Child Support Act 1991 was predicated on the traditional lone parent model in which a child lives exclusively with his mother, while the father is absent and only contributes financially.  The Act did originally allow for shared, equal care, but the system was designed to be a tax-collecting one: it was imperative that an assessment be made in all cases so that money could be siphoned off to the Treasury.  A further piece of legislation was accordingly tacked on in 1992 to deal with so-called ‘special cases’ before the CSA went live (Regulation 20 of the Child Support (Maintenance and Special Cases) 1992 No. 1815), demanding that where there were two ‘persons with care’ one of them must perversely and perfidiously be regarded as absent.  This division was inflexible: one parent had to be absent, existing arrangements of shared or equal parenting were effectively outlawed, and the de-scription of absent parent became pre-scriptive.  Despite three waves of child support reform this essential feature has not been changed.  The formula for child support took no account of a father’s ability to support two families on one income; many fathers were assessed for such large sums, and were harried to such an extent, that they took their own lives.  A number of organisations upholding fathers’ rights began to campaign for lower assessments and for the Government to encourage lone mothers to return to work.  Lord Sims said of the formula itself,

 It is just as incomprehensible as the ancient Egyptian hieroglyphics must have been to an illiterate peasant in the Nile delta (Hansard, 1991).

Child support assessment is a two stage process.  The first stage is to identify which parent has care and which is absent; this is simple and based on the collection of only one piece of information: which parent looks after the child for the greatest number of nights per week, averaged over a year.  The second stage is to work out how much the parent designated absent must pay; calculation of that is more complicated and based on a larger number of data.  Where care is shared equally one parent must still be designated ‘absent’, and is defined as ‘the parent who is not in receipt of child benefit for the child in question’.  Payment of Child Benefit is in turn determined by the Social Security Contributions and Benefits Act 1992 which specifies that ‘between a husband and wife residing together the wife shall be entitled’ and that ‘between two persons residing together who are parents of the child but not husband and wife, the mother shall be entitled’.  Karen Woodall writes,

The residence and contact model of support is, of course, the critical point at which power and control over children is established when a family separates.  Tying it neatly into the receipt of Child Benefit was a tactically brilliant way of ensuring that mothers had first dibs on who has power because that benefit is still paid overwhelmingly to the mother (Woodall, 2012b),

Stage two of the assessment allows a deduction for each night that the absent parent looks after the child.  Contact in excess of 175 nights per year reduces the amount paid by half.  Thus, if care is shared nearly equally, the total maintenance assessment is reduced by 50% and the remaining 50% still has to be paid to the PWC even though there is no reciprocal requirement for her to contribute to the NRP’s costs when the child is with him, notwithstanding the fact that, all other things being equal, his housing and care expenses are the same.  Under the new Child Maintenance Service which applies to new claims for 4 children or more from December 2012, for 2 children or more from July 2013 and for all claims from November, the rules at long last make allowance for shared care and no maintenance is payable, but only where care is shared absolutely equally.  It is likely this will dissuade resident parents from agreeing shared care so that they can continue to receive maintenance.

In addition to Child Support, a separated mother will receive Child Benefit and can qualify for Child Tax Credits, housing benefit and Income Support.  Fathers normally cannot receive these benefits, and thus find themselves in a Catch 22 situation: while mothers receive considerable financial support to bring up their children, separated fathers who share the care of their children generally receive none.  If they are unable to afford appropriate accommodation for their children the family courts will not award fathers overnight staying contact.  Coalition changes to housing benefit rules made this situation worse by ensuring that parents not in receipt of Child Benefit were not allowed bedrooms for their children.  If there are distances between fathers and mothers – and fathers usually bear the costs of travel – this can mean that fathers end up with little or no contact with their children because they simply can’t afford it.

Some fathers have sought to challenge this discrimination; in 2002 Kevin Barber claimed the rules breached Article 14 of the Convention on Human Rights (R (on the application of Barber) v Secretary of State for Work and Pensions , 2002); Article 14, however, only comes into play if a person’s rights under another Article have been breached.  Barber claimed that for the mother to receive Child Benefit while the father had been forced to make an additional claim was indirect discrimination, but there is no such provision in Article 14.  The judge, Sir Richard Tucker, pointed out that in employment law claims of sexual discrimination depend on substantial statistical evidence, and the father and his team in this case had provided none – the judge was not therefore in a position to make an assessment;  Tucker concluded:

The system must be kept simple and the costs of administering it must be kept low.  So far these aims have been achieved.  I am told that only 1.9% of the total sum involved goes to the cost of administration.  If the payment for each child were to be split, the administration of such claims would become complex and expensive.

I find that the present system works well and offers an efficient service at a relatively low cost.  A cornerstone of that system is contained in Section 144 of the Act whereby only one person is entitled to child benefit in respect of the same child.  In my judgment there is no justification for a change in that system.

On 21st December 2004 and after a 7 year legal battle Eugen Hockenjos obtained a ruling  (Hockenjos v Secretary of State for Work & Pensions, 2004) that he could receive the full amount of Dependent Children’s Allowance in respect of his two daughters, Heidi and Alisha.  The Court of Appeal, acknowledging the increasing awareness of the role of fathers in the care of children, held that the link between Child Benefit and receipt of other benefits was discriminatory, as was the regulation that only one parent could be responsible for a child.  Hockenjos argued his case under Directive 79/7/EEC of the European Community legislation, which states there can be no discrimination, either directly or indirectly, in regard to statutory schemes which provide protection against unemployment.  Their lordships rejected the Secretary of State’s argument that this sex discrimination could be justified; the court commented that to allow a father nothing for the maintenance of a child for whom he shares care virtually equally is so unfair that no reasonable Secretary of State could countenance it.  Alan Ward observed,

To be forced to treat only one [parent] as responsible where there is a shared residence order in force and in operation is grotesque.  It is degrading to fathers who actually – and lovingly – tend to their children.  A law so framed is so far removed from reality that it brings the law into disrepute and justifiably fuels the passions of protesting fathers.

The court recommended the Government redraft the legislation to incorporate a greater degree of fairness, but instead the Government took the case to the House of Lords.  The Dependent Children’s Allowance was replaced by Child Tax Credits in which the test for eligibility was not who is in receipt of Child Benefit but with whom the child normally lives.  Eugen Hockenjos’ superhuman efforts were thus annulled by a Government determined to continue ‘grotesque’ discrimination against fathers.

In 2012 the father of two children challenged the rule that unlike Child Benefit, which can be split where there are two or more children, Child Tax Credits cannot be shared between separated parents.  Under Regulation 3(1) of the Child Tax Credit Regulations 2002 Credits are paid to the parent who has ‘main responsibility’.  Mr Humphreys had substantial contact, but was not the primary carer; his case was that as a parent dependent on income support, incapacity benefit and disability living allowance, and responsible for the care of his children 3 days a week he had no funds with which to meet his children’s needs when they were with him.  The issue was not that the regulations were discriminatory, which the HMRC could not dispute, but whether the discrimination was justified.  In the Supreme Court Brenda Hale ruled (citing Hockenjos) that the CTC scheme had been introduced to tackle child poverty which is measured according to household income; Government targets on poverty would be easier to meet if financial support were given to single households and not split.  The household of a father without ‘main responsibility’ is not included in the measurement of child poverty; how the state distributes support is a separate issue from how children’s time is divided between their parents.  Prior to the CSA a court could have balanced the injustice by ordering the mother to make a payment to the father,

Unfortunately, the advent of the child support scheme has removed the possibility of doing justice from the courts.  To restore it would obviously be the more rational solution to the problem under discussion (Humphreys v The Commissioners for Her Majesty’s Revenue and Customs, 2012).

Child support policy disrupts the relationships between children and their non-resident parents, forcing fathers to become ‘McDads’, meeting their children for a couple of hours every other weekend in a fast food restaurant, or causing children to lose a parent.  Not merely non-payment, but even child support liability are considered ‘gender crimes’ by a system which won’t discriminate between fathers who shirk their responsibilities and those who accept them, and so the CSA treats all fathers as criminals, relentlessly hounding those who pay, and failing to pursue those who don’t.  It thus manages to earn the equal contempt of both fathers and mothers, combining an unprecedentedly invasive state machine with unparalleled managerial incompetence.  After 1993, a series of amendments to the Child Support Act 1991 was enabled.  Many of these changes came about through public pressure and most benefited fathers to some extent.  When Labour came to power in 1997, however, it was clear the system was still not working and required radical overhaul; the complexity of the calculations had far exceeded the capacity of the computer system and compliance was low.  Labour immediately replaced the chief executive of the CSA and appointed Patricia Hollis to oversee reform.

In July 1998 the CSA Reform Green Paper announced a new formula to replace the old scheme under which a father could pay up to half his income to the agency (Child Support Agency, 1998).  It cited two items of research, The Costs of Children and the Welfare state (Dickens, Fry, & Pashardes, 1996), and Small Fortunes: Spending on children, childhood poverty and parental sacrifice (Middleton, Ashworth, & Braithwaite, 1997); it stated, ‘Overall, there are indications that the cost of a child represents between 20 per cent and 30 per cent of the budget of a family with one child’.  The new formula took half of the maximum – 15% – as the NRP’s contribution for a single child, and then set arbitrary values of 20% for two children and 25% for three or more; there was no evidence on which this was based, and it is obvious that a first child doesn’t cost three times as much as a second or third.

In July 1999 the CSA Reform White Paper was issued (Child Support Agency, 1999); it didn’t refer to The Costs of Children, only to Small Fortunes, but Small Fortunes never actually identified a formula for expenditure based on percentages of income.  The White Paper attributed the research to the wrong source.  The research was misinterpreted; the actual figures which had been reported in the Costs of Children were 10% for a younger child and 15% for an older child.  So as well as attributing the research to the wrong source, the White Paper doubled the percentages.  Furthermore, the formula assumed that 15% of the NRP’s income, plus 15% of the PWC’s income, equalled 30% of their joint income.  By sheer good fortune these two schoolboy howlers cancelled out, so that Hollis was able to say, ‘On average about a third of a couple’s income tends to go on the support of their children, so 15 per cent from one parent in a separated family seemed about right’ (Hollis, 1998).

Works Cited

R (on the application of Barber) v Secretary of State for Work and Pensions , [2002] EWHC 1915 (Admin) (High Court 2002).

Hockenjos v Secretary of State for Work & Pensions, [2004] EWCA Civ 1749 (Court of Appeal 2004).

Humphreys v The Commissioners for Her Majesty’s Revenue and Customs, [2012] UKSC 18 (Supreme Court May 16, 2012).

Barber, L. (2007, July 15). The Observer.

Child Support Agency. (1998). Children First: a new approach to child support, Cm 3992.

Child Support Agency. (1999). A new contract for welfare: children’s rights and parents responsibilities, Cm 4349.

Davies, G. (1998). Child Support in Action. Hart Publishing.

Dickens, R., Fry, V., & Pashardes, P. (1996). The Costs of Children and the Welfare state: An Empirical Analysis based on Consumer Behaviour, Discussion paper series no 466. Department of Economics University of Essex.

Hansard. (1991, February 25).

Hollis, P. (1998). Evidence given. Social Security Select Committee.

Johnston, P. (2010). Bad Laws: an explosive analysis of Britain’s petty rules, health and safety lunacies and madcap laws. London: Constable & Robinson Ltd.

Middleton, S., Ashworth, K., & Braithwaite, I. (1997). Small Fortunes: Spending on children, childhood poverty and parental sacrifice. Joseph Rowntree Foundation.

Nutt, T. (2006). The Child Support Agency and the Old Poor Law,. Cambridge.

Woodall, K. (2012b, June 29). Alienation, education and obfuscation: a report from a House of Commons Seminar, 27 June 2012. Retrieved from http://karenwoodall.wordpress.com/.

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