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Child Maintenance and Other Payments Act 2008: An Introduction

David Burrows summarises the key changes to child maintenance introduced by the Child Maintenance & Other Payments Act 2008, which received Royal Assent in June 2008

iamge of David Burrows

David Burrows, Solicitor Advocate

The Child Maintenance and Other Payments Act 2008 (the ‘2008 Act’) received Royal Assent on 5 June 2008.Unlike most previous child support legislation after Child Support Act 1991 (the ‘1991 Act’) the 2008 Act creates a series of free-standing provisions (Parts 1 and 2). It also extensively amends the 1991 Act. By way of note the ‘other payments’ relate to diffuse mesothelioma (Part 4, ss 46-54), and bears no relationship to child maintenance so will not be considered no further here.

The 2008 Act sets up a new Commission - the Child Maintenance and Enforcement Commission (‘CMEC’) - to do the job formerly done by the Child Support Agency. The extensive amendments to the 1991 Act are to the calculation process, and (mostly) on enforcement. The 1991 Act (already extensively amended) will be doubled in length; and the already cumbersome regulations will doubtless be proportionately extended. A number of extensions on enforcement are already heralded.

The child support scheme consists, essentially, of three components:

The first of these has been tinkered with. The third has been massively extended. The second, and in some ways the most extensive and baffling for those who encounter it, has not been altered at all and this will be the topic of a separate article.

Child Maintenance and Enforcement Commission: a semantic exercise?
The reforming aspects of the Act, save in relation to enforcement, are relatively light. First there is a semantic change, though it may have important administrative undertones. The ‘Child Support Agency’ will go. The Agency did not have a separate statutory existence: everything in the 1991 Act was done in the name of the Secretary of State for Work and Pensions. Rather as the Legal Services Commission replaced the Legal Aid Board, CMEC will be set up (s 1 and Sch 1); and it will have transferred to it all the functions of the Secretary of State under the existing scheme (ss 3(1) and 13). Indeed many of the provisions for the new Commission in the 2008 Act are very similar to those setting up the LSC in the Access to Justice Act 1999.

The Secretary of State remains very much in control of the operation of the new Commission (eg as to its ‘direction and guidance’: s 10); and his is the lead department for the framing of regulations. It remains to be seen how this will alter matters in terms of Carltona principles (Carltona Ltd v Commissioners of Works [1943] 2 AllER 560: departmental responsibility for exercise of discretion) and of liability for negligence by the Commission (as compared with the present position under Rowley and ors v Secretary of State for DWP [2007] EWCA Civ 598).

The main object of the Commission is prescribed by s 2(1) and relates to ‘effective maintenance arrangements’ which is a new term under the 2008 Act but not defined there. Its object is ‘to maximise the number of those children who live apart from one or both of their parents for whom effective maintenance arrangements are in place’. This is supported by the encouragement and support for parents in making ‘voluntary maintenance arrangements’ for children, and to support the making of applications under the scheme (s 2(2)). This provision sits alongside and supplements the duty to maintain provision of s 1 of the 1991 Act: ‘each parent of a qualifying child is responsible for maintaining him’ which is done by a non-resident parent making maintenance payments under the Act.

Underlying reforms
The emphasis on ‘effective maintenance arrangements’ refers to one important strand in the new scheme: that voluntary arrangements are to be encouraged (s 2(2)(a)). An ‘effective … arrangement’ may be said to be one which is either voluntary or statutory by calculation under s 11 of the 1991 Act.

Under the new scheme there is no compulsion on benefits claimants to authorise the Secretary of State to collect child support maintenance (ss 6 and 46 are repealed by s 15 of the new Act). The logic of making this scheme a DWP responsibility therefore goes with it. The original scheme gained much of its impetus from Mrs Thatcher’s discovery that the father of a child whose mother was receiving income support was getting away without paying maintenance. The tax-payer paid instead, she was told. The 1993 scheme was modelled closely on existing state benefits administration: income support rates defined the new assessment rates; appeals were (and still are) to the existing Social Security Tribunals and Commissioners; liability orders were lifted from the new poll-tax scheme; and administrative law lay down awkwardly with family law concepts. The then Lord Chancellor sponsored the bill which led to the Child Support Act 1991 but operation of the scheme went to the then DSS.

The link with state benefits and the DWP goes with repeal of s 6. Operation of the scheme could therefore be transferred to the Ministry of Justice, which is responsible for all other forms of family proceedings, and with that could come the exercise of judicial discretion, easily understood by family lawyers but so foreign to the mind of the civil servant and the administrative lawyer. Perhaps then the rougher edges of the sinister enforcement schemes outlined below could be softened.

Change from ‘net’ to ‘gross’ income
The other main amendment to the existing scheme is to the basis of calculation of child support maintenance: instead of 15%, 20% and 25% of net earned income for one, two and three or more children, it is now provided (s 16 and Sch 4) that calculation shall always be based on ‘gross weekly income’ (Sch 4 para 3) This was partly to counteract the effects of Smith v Secretary of State for Work and Pensions [2006] UKHL 35 and the treatment of capital allowances. Any reference to ‘net’ income is replaced by ‘gross’ (para 2). Thus:

Debt Management and Arrears
Sections 31-34 of the 2008 Act incorporate ss 41C-41E and 49A into the 1991 Act to enable the Commission to manage some of the debt which has mounted over the years. Some say the figure is as high as £3bn under the present scheme but that figure has to be treated with scepticism given the Agency’s frequently inaccurate bases for calculation of arrears. Sections 41C-41E are heavily dependent on delegated legislation controlled by the Secretary of State, so their full effect is difficult to gauge at this stage. The Commission can

These provisions do nothing to determine the period over which arrears may run. Under other long-standing family law provisions a maintenance debt more than a year old can only be enforced with permission from the court (for example the Matrimonial Causes Act 1973 s 29 and Children Act 1989 Sch 1). Even civil debt and most other court claims expire after six years. Not so child support debt which, in regulations unsupported by primary legislation, can extend to all payments due since 20 July 2000 (Collection and Enforcement Regs 1992 reg 28(2)). Silence here will still leave child support law, civil law and family law a long way adrift from each other.

Further the law remains as Mrs Kehoe found it when she went to the House of Lords: her refusal of relief there (and more recently in the ECtHR) will remain the same (R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48). She has, and will continue to have, only very limited means, other than by judicial review, for compelling a prevaricating Commission to enforce arrears. It was the Secretary of State (for which read under the new Act, the Commission) who can enforce child support arrears and a similar position will extend under the new Act to the power to set off or write off arrears (ss 41C and 41E).

Miscellaneous
Miscellaneous provisions are added:

A new s 55 (meaning of ‘child’) is substituted which takes childhood under the Act to a twentieth birthday, but in circumstances which are to be developed only in regulations – presumably by careful definition of what is advanced and other education or training. The cross-over between these provisions and the relevant provisions of Matrimonial Causes Act 1973 and Children Act 1989 Sch 1 will need to be taken carefully into account.

Enforcement
The main thrust of the Act comes in the amendments to the enforcement provisions of the 1991 Act.

To the existing thirteen sections on enforcement, twenty-four more are incorporated (some apply only to Scotland): ss 32A-32N and 39B-39Q have been added.; and there are extensive amendments to existing sections in the 1991 Act. Crucially, the almost meaningless, as presently applied, ‘liability order’ under s 33 goes. The order re-emerges as an administrative ‘liability order’ (ss 32M and 32N of the 1991 Act). The issues raised in the Lords in Farley v Secretary of State for Work and Pensions [2006] UKHL 31 goes; and any challenge to arrears goes to the appeal tribunals (see below).

As under the existing scheme enforcement is in two categories: powers which are freestanding – by administrative order only of CMEC - and those which depend upon the existence of the new liability order. Thus to the existing deduction from earnings order (s 31: ‘DEO’) can be added two further administrative orders which can be imposed:

The new administrative liability order (s 32M) emerges alongside a number of new forms of enforcement (added to levy by distress (s 35), charging order etc in the county court (s 36) and committal/driving licence removal (s 39A)):

Appeals against enforcement orders
Under the existing scheme there are,  at least in theory, cross-checks built into the system for the oppressed parent to appeal to the courts. Administrative ‘orders’ are now limited to the DEO. Court checks on the activities of the Commission and any bailiffs to which they entrust or sell off (‘transfer’ under s 49A) arrears, will be subject to less supervision by the courts under the new enforcement provisions. The already hard-pressed Administrative Court will see an increase in work under this Act.

Court involvement under the new scheme goes in the case of liability orders. The rights of appeal against the administrative orders are limited to those prescribed by the Secretary of State (yet to be defined: ss 32C(4) and 32J(5). If the limited bases for appeals against a deduction from earnings order are anything to go by  this will not open any litigation floodgates (Collection and Enforcement Regulations 1992 reg 22).

A liability order can now be the subject of appeal to an appeal tribunal (s 32M; and see amendments to s 20 of the 1991 Act in Sch 7 paras 1(2)-(6)). The extent to which an appeal tribunal can question arrears has been clarified as the new s 20(5A)(b) makes the amount of the arrears as against the liability order a specific ground for appeal.

Once a liability order is made the Commission must apply to the magistrates’ court to:

At this stage the court cannot question the amount of the liability order nor the basis of the maintenance calculation (ss 39B(7), 39H(4), 40(2D) and 40B(A5): echoes of the old s 33(4); and see Farley (above)).

Summary
Calculation of an amount of child support maintenance has been altered a little. Enforcement, the third component of a child support scheme, has been extended substantially. But the third component, court or judicial involvement is, if anything, more complex than ever. Unquestionably, the proliferation of court processes, references here have been to the Administrative Court, the appeal tribunal system, the magistrates’ court and the county court, will abound, as now, under the new scheme. But that is a matter for another day…

DAVID BURROWS
david.burrows@dbfamilylaw.co.uk

David Burrows is a solicitor advocate from Bristol and is, with Roger Bird, author of Child Maintenance 2008 (Jordans, forthcoming)

You can download the full text of the Act on the Office for Public Sector Information website