So Far Removed from Reality

 

 

To be forced to treat only one (parent) as responsible where there is a shared residence order 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.

Lord Justice Ward (Hockenjos v Secretary of State for Work & Pensions, 2004)

 

 

The new system of child maintenance assessment was introduced in 2003, capped at 30% of the NRP’s income and designed to be simpler than the old and to consider only 4 basic variables and about 30 constants, whereas the old system had required 100 individual pieces of data.  No radical thinking was involved; it was simply designed to be administratively easier, leading to quicker assessment, greater accuracy, greater predictability and greater compliance – aims which were never achieved.  It sacrificed flexibility and fairness.  Presentational tweaks included the replacement of the terms ‘absent parent’, ‘assessment’ and ‘departure’ respectively with ‘non-resident parent’ (NRP), ‘calculation’ and ‘variation’.  The new legislation also made a huge break with the past, entirely unannounced and unjustified in any of the parliamentary process which preceded it.  Previously, an NRP had been presumed to be responsible for the entire financial contribution to the child; under the 2003 formula that responsibility was to be shared equally between the NRP and PWC, though whether this was intentional, or a product of the feeble arithmetic is anyone’s guess.  Despite the agenda to end child poverty, this was still a tax measure, and the CSA remained a Treasury tool.  The number of suicides declined, but so did the proportion of money recovered, resulting in a net cost to the taxpayer of about £200 million a year just to run the Agency (Henshaw, 2006).

Within a few years it was clear the revised scheme wasn’t working.  In November 2004 the chief executive, Doug Smith, resigned; in an interview with the BBC Sir Archy Kirkwood, chairman of the Work and Pensions Committee, described ‘a systemic, chronic failure of management right across the totality of the agency’.  The time for a case to be cleared had increased from an average of 18 days to 287 and the accuracy of assessments had fallen (Child Support Agency, 2005).  A report by the National Audit Office found that although the reforms had cost £539 million they had not improved customer-service or administrative efficiency: complaints, arrears and the backlog remained unacceptably high (National Audit Office, 2006).  A further £321 million improvement plan launched in April 2006 had minimal effect; £107 million of it went on the IT system.

In February 2006 Work and Pensions Secretary John Hutton asked former Liverpool City Council CEO, Sir David Henshaw, to redesign the system, though within tightly circumscribed parameters.  Hutton’s foreword to the Government’s White Paper A New System of Child Maintenance referred to ‘root and branch reform,’ a ‘new system,’ and a ‘fresh start’ (Department for Work and Pensions, 2006).  He picked up on one aspect of the current failure of the system: that compulsory CSA involvement often disrupted pre-existing, working arrangements, and used that as his basis for reform.  Where these private arrangements didn’t work there would be ‘strong, effective state support,’ and ‘new enforcement powers’ to tackle parents who consistently failed to pay.

A New System was a dishonest and self-deluding document: the Executive Summary began with the acknowledgement that the CSA had not delivered, but crucially offered no explanation.  A ‘clean start’ was deemed necessary but no justification was offered.  It described ‘new arrangements’, a ‘more effective process’, and a ‘new organisation’, but no account was given of why the existing arrangements, process and organisation had failed after only 3 years.  The scale of the administrative failure was vast: 250,000 cases backlog, 150,000 cases with no payment schedule in place, 127,000 cases where no payment had been made in 3 months.  The Government wanted to use child support as a means of ‘lifting children out of poverty’, but the White Paper recognised addressing child poverty had never been one of the aims of the 1991 Act: ‘its foremost aim was to reduce the cost to the taxpayer’.  The best way to alleviate child poverty is to ensure parents don’t separate in the first place and, if they do, to safeguard children’s rights to grow up with their fathers.  Henshaw observed, ‘Having multiple objectives makes it more difficult to deliver any one goal’ (National Audit Office, 2006).  Much of the evidence shows that child support systems are ineffective at lessening mothers’ poverty: child support merely redistributes poverty; Henshaw showed that the CSA came a poor third, behind private and legally imposed arrangements, in securing the receipt of maintenance.

From November 2008 Henshaw’s revised system was gradually introduced.  The CSA was to come under the aegis of the Child Maintenance and Enforcement Commission (CMEC).  This move was dishonestly presented as the complete disbanding of the CSA and its replacement with a new body.  CMEC inherited the crisis-ridden IT system, which was likely to remain until at least 2014, and continued to employ the old CSA staff.  In January 2008 the Secretary of State for Work and Pensions, Peter Hain, announced to nobody’s surprise that Stephen Geraghty, Chief Executive of the Child Support Agency, would remain in his job: he became the Commissioner of the new Commission.  In his report Henshaw recommended a clean break with the past and the Government responded by identifying four main principles: that parents take financial responsibility for their children; that CMEC involvement should no longer be compulsory in benefits cases; that benefit recipients should get the full CMEC amount and that CMEC should provide a more professional service (Henshaw, 2006).  These were claimed to refocus emphasis on the needs of the child, and to establish ‘rights and responsibilities – the right of a person to make a claim and the resulting responsibility of the non-resident parent to pay’.  But this was nothing new; it was a reiteration of the 1991 position that there must be a caring parent and an absent parent, a position which was obsolete then and remained so, and which effectively outlawed shared parenting.

The White Paper made the observation – one of its key points – that forcing parents to enter the child support system, even when they had an arrangement which was working well, because the PWC had claimed benefits, was needless and counterproductive, and that children suffered from the ensuing increase in conflict, so the first substantial proposal of the new system was to encourage parents to make their own arrangements.  The second was to remove the rule which deducted benefits paid from the child support received.  This ‘disregard’ was first introduced into the 2003 scheme enabling PWCs claiming benefit to keep £10 of any maintenance paid.  In October 2008 it was increased to £20 and in April 2010 it was extended to all maintenance received.  Labour still sought to present this measure as part of its war on poverty, claiming the move would ‘benefit some 350,000 children’ and as a result lift ‘around 50,000 children’ out of poverty, but this was true only if payments increased from zero to £40 or more per week, an unlikely scenario.

The CMEC assessment simplified the formula further than the 2003 reform, and aimed to make the process faster and more accurate, but it also allowed fewer variations to the basic formula and failed to take into account differences between parents’ circumstances.  Following Sir David Henshaw’s recommendations, Labour proposed to derive the information about a liable parent’s income directly from HM Revenue and Customs rather than approach the parent for details; many beneficiaries of child support wanted the Government to go further and use the Revenue as the collection agency.

If voluntary agreements could not be made the scheme made a deduction from earnings order the basic method of payment.  Assessments were based on gross rather than net income, rendering calculations of tax and National Insurance superfluous, and so new rates were introduced.  The system was designed to speed up applications, simplify calculations, prevent non-resident parents from withholding information by processing only three pieces of data, and make non-compliance more difficult.  It continued, however, to be unfair and failed to take into account many payers’ financial commitments and circumstances.  It was no new system, merely a variation on the old.

The problem with the CSA was always seen as a simple failure to enforce.  Non-payment was explained in unsophisticated terms as the refusal by ‘deadbeat dads’ to accept responsibility for their children.  No other possible reason for non-payment was considered; non-payment would simply not be tolerated.  This stance politicised non-payment and turned it into a ‘gender crime’.  If a parent did not pay what he was assessed to owe there was a variety of options available to persuade him.  While courts hesitate to punish obstruction of contact because it can negatively affect children, they have no such compunctions about punishing non-payment of child support and the range of sanctions is far wider.  Previously, the CSA had to obtain a Liability Order from the Magistrates’ Court before pursuing parents through the courts; this requirement was removed, and Enforcement Orders replaced Liability Orders.  This eliminated the need for the CSA to prove liability, and the child support system became another area of enforcement which specifically targeted and criminalised men and denied them the protection of due process, declaring them guilty without evidence or trial.  Additional powers introduced in 2009 enabled the CSA to impose the equivalent of Charging Orders by which debts could be recovered from the sale of a parent’s home.  Other options included the plundering of share and property portfolios, leading to warnings from lawyers that fathers would challenge such moves on human rights grounds (Oakeshott, 2008).

These powers usurped the authority of the court and handed it to an unproven agency whose predecessor had been uniquely incompetent and untrustworthy.  The National Audit Office, which had refused to approve the CSA accounts for many years, reported that ‘65 per cent of the cases where a liability order was sought were inaccurate’ (National Audit Office, 2006).  The CSA claimed that accuracy had been improved, but they had changed the way in which it was measured.

It was also possible to have liable parents searched, and any money found on them taken in payment.  These same powers were used to recover outstanding debts, aided by private sector debt-collectors.  Where NRPs had died the debt was recovered from their estates.  A final strategy was the much publicised one of placing the names of NRPs who were successfully prosecuted on the CSA website: ‘naming-and-shaming’ – this was implemented early, but proved ineffective and was abandoned in a U-turn deeply humiliating to the Government.

An NAO report in December 2009 showed the backlog had been reduced and new applications were being cleared more rapidly; accuracy had increased and complaints had reduced (National Audit Office, 2009).  The NAO stated, however, that it would have expected greater improvements in accuracy and compliance than the modest ones achieved.  The IT problems which had always plagued the organisation had not been resolved and the number of cases calculated manually had increased from 19,000 to 75,000.  No further upgrades were planned for the computer system, which was scheduled to be replaced entirely in 2014; by then the total cost of the system would have been close to £1 billion.

In January 2011 the Conservative/Liberal Coalition came up with further proposals which exhibited some innovative thinking and finally recognised the sense of a system which enabled parents to make their own arrangements – albeit with support from the state – and which integrated child support with other post-separation arrangements such as residence and contact.  As far as possible parents would be encouraged to make their own arrangements with free support from a statutory scheme available where necessary; they would also be encouraged to pay directly even where the state had calculated the assessment.

Controversially, parents who chose to use the system were to be charged a £100 application fee (resident parents could evade this by self-evaluating for domestic violence).  Both parents would be asked for a ‘collection charge’ to ‘reinforce’ this and ‘ensure better value for money for the taxpayer’; NRPs were to pay an additional 20% on top of their assessments and resident parents were to surrender up to 12% of what they received, potentially giving the Government 27% of the total.  Where the system was obliged to take enforcement action against a non-resident parent further charges would be imposed to encourage compliance.  These plans were condemned equally by groups representing liable parents and those representing recipients.  At a time when families are most vulnerable and experiencing increased costs (running two households, paying legal fees, etc.) the new scheme would take money out of families and impoverish children.  Arguably, the proposal had merit – there is no reason why the taxpayer should have to subsidise couples who cannot agree between themselves; no one has to make the payments: they only do so if they choose to use the state system.  What was disappointing was that the plan did not incorporate a new scheme for calculation.  As long as the assessment is unfair and disproportionately favours the resident parent, it undermines any effort by parents to reach agreement themselves.

Child support began as a means to ensure the financial security of a child who had lost a father through death or desertion; it was designed to support the needy and destitute within relationships which rarely progressed to marriage.  Today child support has become something quite different: it incentivises and subsidises divorce and family breakdown.  In China it is the practice when a man is condemned to death that his family must pay for the bullet that kills him; the CSA employs the same principle.  If a mother has no income of her own the fatherless lifestyle is possible only with financial assistance from the father himself or the state.  Extorting money from the father enables a mother to raise children without him; it is unreasonable, therefore, to expect fathers to contribute towards the breakdown of their own families and to be complicit in the theft of their children.

Recent child support reform in the UK has done little more than boost enforcement.  This is expensive and isn’t cost-effective; it would be cheaper to the taxpayer to ditch the CSA and pay maintenance out of general taxation.  Worldwide, child support is pursued far more ruthlessly than any other debt, and defaulting parents often have no recourse to the law if the assessment of their liability is wrong.  The stereotype of the ‘deadbeat dad’ has become so ascendant that non-resident mothers (4.7% of the total (Department for Work & Pensions, 2013)) are never considered and it is rare for anyone to ask why fathers don’t pay.  Those who fail to pay do so for a variety of reasons, some of which were revealed by a report commissioned into non-payment from Bristol University (Atkinson & McKay, 2005).  The report noted the schizophrenic nature of the system: on the one hand it applies a purely legal obligation, similar to paying income tax, but on the other it expresses this in moral terms, exhorting fathers to ‘take responsibility’ for their children.  Excluded fathers who would be only too happy to be responsible resent this; for them the CSA was founded on entirely negative stereotypes of fathers, it is a system devised to punish and criminalise them for being ‘non-resident’.  They perceive the CSA to have been set up to pursue ‘absent’ fathers, and they don’t consider themselves absent.

In February 2007 the Conservative Party leader, David Cameron, demonstrated the confusion between the legal and moral aspects of child support by making a series of ill-informed remarks on the issues of fatherlessness and crime.  He said, ‘We urgently need to reform the law, and the rules around child maintenance, to compel men to stand by their families’.  In a radio interview he combined the twin false stereotypes of the feckless father and the violent husband, ‘if there’s violence then obviously the kids and the mum are better off if the dad is thrown out of the house… But I want all fathers to stand by their responsibilities and that means hunting down absent dads and making sure they’re paying their child maintenance, and if they’re not, deducting it from their earnings or their benefit’ (Cameron, 2007).

Shamefully, fathers who seek contact are often accused of only trying to reduce their child support payments.  There is no evidence whatsoever for this allegation (Maccoby & Mnookin, 1992) (Braver & O’Connell, 1998).  Because of the unfairness built into the child support system a father’s payments reduce at only half the rate at which his costs rise: there is thus no financial incentive for him to use child care as a way of reducing payments.  Fathers able to spend more time with their children are more likely to pay what child support they do owe in full and on time (Amato & Booth, 2006); fathers who have plenty of time with their children actually spend more money on them, not less, paying for computers, sports, school trips and enrichment activities (Nielsen, 2010); they also pay more for further education (Fabricius, 2003).  The clearest reason fathers do not willingly make child support contributions is simple: they are prevented by their former partners and by the family courts from having proper contact with their children and from playing an equal role in their care and upbringing, which cannot be fulfilled simply by signing a monthly cheque.

The refusal to consider child support and contact as in any way related has been one of the fundamental failures of child support legislation.  In an important paperfrom the University of Essex John Ermisch demonstrated the two are inextricably related (Ermisch, 2006); if reform ‘is successful in improving enforcement, then it is likely to reduce the frequency of fathers’ contact with their children for many fathers’.  This is because poorly enforced child support provides an incentive to mothers to allow contact,

This should be profoundly worrying for any politician who thinks fathers should take more responsibility for their children.  The new powers given to the new body will make it far more difficult to avoid payment, and that will inexorably lead to a reduction in contact.

Ermisch continued, ‘These connections between policies affecting child support payments and the frequency of fathers’ contact with their children have been overlooked because of an inadequate theoretical foundation for the analysis of child support and contact’.  In analyses by Del Boca and Ribero, mothers trade contact time between non-resident fathers and their children for child support payments (Del Boca & Ribero, 1999) (Del Boca & Ribero, 2001) (Ribero & Del Boca, 2003).  The higher the payments, the more contact time; it is more cost-effective for an NRP wanting more contact to pay more child support than to go to court, but as contact increases so the price is raised.

There has been scant research into the problems facing non-resident fathers in the UK, most studies concentrate on single mothers.  A 1998 study by Jonathan Bradshaw of York University found a higher level of contact than was usually reported by single mothers with half of fathers seeing their children every week, and only a fifth who had not seen their children in the last year (Bradshaw, 1998).  Sixty percent were paying child support; again, a higher level than mothers report, and of those who were not paying, 63% could not because they were unemployed or on income support.  Only 15% of non-payers had clear potential to pay.  The report concluded,

But a much more pervasive picture that emerges from this research is that of men struggling to be the fathers of non-resident children.  Non-resident fathers want close, intimate and fulfilling relationship with their children.  The majority want to fulfil all their parental obligations, social, emotional and financial but it seems that one is unsatisfactory without the others.  The lesson for policy is that financial obligations cannot be imposed.  They have to be negotiated in the context of other issues – contact, property, capital – that have to be settled on relationship breakdown… There is no need to enforce parental obligations – they exist and are accepted already.  But there is a need to facilitate them through an increased understanding of the emotional and moral turmoil that follows in the wake of family separation or cohabitation breakdown or following a non-marital birth.

A Newcastle University study in 1997 looked at the barriers encountered by young men who want to be involved in their children’s lives (Speak, Cameron, & Gilroy, 1997).  They found they were proud of their new roles as parents and wanted to be good fathers; many had not been entered on the birth certificates by mothers who often considered them to be superfluous and they felt excluded.  They were often surprised to find they had no legal rights: some believed, erroneously, that if they paid child support that would confer parental responsibility; they resented the deduction of their financial contributions from the mother’s income support.  Due to unemployment and lack of money they were unable to provide independent homes for their children, and felt unable to access support from the few existing fathers’ groups; they did not feel welcome at general family support groups or support groups established for young mothers, they found no professional support available to help them with child care.  When able, young men are more inclined to pay maintenance if the child, rather than the state or the mother, is the beneficiary.  Greater recognition of other forms of non-financial support would encourage a father’s involvement.  Low self-esteem and negative self-image are widely recognised to be key factors contributing to other types of delinquent behaviour, but there is little acknowledgement among policy-makers that this might play a part in the absence of some fathers.

A Glasgow University study looking at existing literature found a strong link between joint legal custody and the continued involvement of both separated parents in child-rearing (Wilson, Gillies, & Mayes, 2006).  They also found links with employment, greater levels of education, proximity to the mother and children and lower levels of conflict,

Non-resident fathers themselves are generally distressed by the loss of their children and want more contact.  They frequently attribute parental conflict to recriminations over the break-up, and perceive the resident mother as intractable, antagonistic and exerting control over contact.  They tend to feel relatively powerless as parents, and may be either resigned or resentful.

The theoretical foundation continues to be inadequate: a more recent study by Barnado’s (Cundy, 2012) showed that Government still collects no statistics on young fathers and LAs have no figures on fathers still at school.  It revealed the obstacles encountered by young fathers at every point of interaction with state and local authority services and confirmed that young fathers are particularly vulnerable to exclusion; it expressed concern that,

Too often services see the father through the prism of his relationship with the mother and not his relationship with the child.  Fathers need to be encouraged to see their relationship with their baby as something to nurture, separate to their relationship with the mother.

This prism is the same we saw employed by Sturge and Glaser: through it the child appears inseparable from the mother – a mere appendage.  What these studies reveal is the folly of a system which separates child support from contact; and seeks to enforce child support while neglecting inadequate contact; the two are associated in the minds of fathers and with good reason: where contact is thwarted and relationships suffer, fathers feel justified in withdrawing financial support, particularly when any financial contribution they make doesn’t benefit the child.  Even when their contributions go to the mother, there is often deep suspicion about how they are being spent.

Evidence shows that contact and financial matters including child support need to be considered together: ‘all-issues’ mediation results in a significantly higher rate of agreement than mediation on child-related issues only (Walker, McCarthy, & Timms, 1994).  Couples using all-issues mediation were more likely to feel that the process had been helpful in improving communication, reducing tension, aiding negotiation and clarifying areas of disagreement.  A three year follow-up confirmed the advantages of all-issues mediation over single-issue mediation.

The CSA was founded in the fundamental principle that individuals require the state to administer things for them, and yet it is far healthier if people are left to make these arrangements themselves, perhaps with help.  It was also designed around the stereotype of the single mother living on benefits, and is far from ideal for other types of family.  Subsequent changes have not offered new ways of looking at child support; they are just variations on the old ones.  Proper integration with child contact has never been considered; nor have the circumstances of non-compliance.  Child support is not an isolated issue: nor one solved simply through more effective enforcement, but is intimately bound up with other matters such as contact and residence.

 

Works Cited

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

Amato, P., & Booth, A. (2006). Alone together: How marriage in America is changing. Cambridge, MA: Harvard University Press.

Atkinson, A., & McKay, S. (2005). Investigating the Compliance of Child Support Agency Clients. Bristol: School of Geographical Sciences, University of Bristol.

Bradshaw, J. (1998). Non-Resident Fathers in Britain, Economic and Social Research Council (ESRC) Population and Household Change Research Programme. University of York.

Braver, S., & O’Connell, D. (1998). Divorced Dads. Tarcher.

Cameron, D. (2007, February 20). You and Yours. BBC. Radio 4.

Child Support Agency. (2005). Quarterly Summary of Statistics, December.

Cundy, J. (2012). Are we nearly there yet, Dad? Supporting young dads’ journeys through fatherhood. Ilford: Barnardo’s.

Del Boca, D., & Ribero, R. (1999). Visitations and Transfers in Non-Intact Households, Working Papers 99-18, C.V. New York: Starr Center for Applied Economics, New York University.

Del Boca, D., & Ribero, R. (2001, May). The Effect of Child-Support Policies on Visitations and Transfers. American Economic Review, 91(2), 130-134.

Department for Work & Pensions. (2013). Child Support Agency Quarterly Summary of Statistics for Great Britain March 2013. London: Stationery Office.

Department for Work and Pensions. (2006). A new system of child maintenance, Cm 6979.

Ermisch, J. (2006). Child Support and Non-Resident Fathers’ Contact with their Children, ISER Working Paper 2006-14. Colchester: University of Essex.

Fabricius, W. (2003). Listening to children of divorce. Family Relations, 52, 385-396.

Henshaw, D. (2006). Recovering child support: routes to responsibility.

Maccoby, E., & Mnookin, R. (1992). Dividing the child. Cambridge, Massachusetts: Harvard University Press.

National Audit Office. (2006). Child Support Agency – Implementation of the Child Support Reforms, HC 1174.

National Audit Office. (2009). Memorandum for the House of Commons Work and Pensions Committee: Performance of the Child Maintenance and Enforcement Commission.

Nielsen, L. (2010). Shared parenting: a review of the supporting research. Wake Forest University, North Carolina.

Oakeshott, I. (2008, May 11). Absent fathers risk raid on shares. Sunday Times.

Ribero, R., & Del Boca, D. (2003). The Interaction Between Visitations And Child Support Transfers In Non-Intact Household, Documentos Cede 003608. Universidad de Los Andes-Cede.

Speak, S., Cameron, S., & Gilroy, R. (1997). Young single fathers: Participation in fatherhood – bridges and barriers. Newcastle: University of Newcastle.

Walker, J., McCarthy, P., & Timms, N. (1994). Mediation: the making and remaking of cooperative relationships. Relate Centre for Family Studies, Newcastle University.

Wilson, G. B., Gillies, J. B., & Mayes, G. M. (2006). Fathers as Co-Parents: How Non-Resident Fathers Construe Family Situations. Glasgow: Department of Psychology, University of Glasgow.

 

 

 

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