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The CSA and the Government: the dog is barking and the cat is locked in the study

Olivia Stiles of Hickman & Rose and Byron James of 14 Gray's Inn Square consider the policy issues behind the Government's consultation on child maintenance

Olivia Stiles, Hickman & Rose    Byron James, Barrister, 14 Gray's Inn Square


Olivia Stiles, Hickman & Rose and Byron James, Barrister, 14 Gray's Inn Square

Failure is something to which all of us, some more than others, are well attuned to. It haunts and embitters more than it inspires progression and improvement. For the separated couple who still come across each other in a work environment, there is a dull, in-the-background thuddering of loss, the what-could-have-been's and, more often than not, a passive aggressive resistance to deal with the problem. The Government and the CSA fell out of love a long time ago. They would smile politely and hold hands at dinner parties but it was obvious to everyone watching that, at first, they were sleeping in separate rooms and then, embarrassingly, no longer seemed to talk to each other. The Government would visibly cringe with every alarmingly obvious faux pas that the CSA continually careered into.   

Every so often, following a public examination from the whispering and not-so-whispering media gossips, the Government would stand up for its maligned, limping, flaccid ex. It would make gestures designed to help the CSA out: a new computer system, introductions to seemingly sensible young men to keep them on the straight and narrow and even the denouement of all movings-on: a change of name. Sadly even the trendy new name didn't make it better.

When parents separate, their obligations to their children continue; sometimes, some parents are difficult about being required to meet these obligations. Therefore there needs to be a system whereby their being difficult is not a barrier. Why should the child lose out because their parents no longer go out? It is the parents who are leaving each other; neither leaves the child (in an emotional rather than literal, living together sense). However, the system does not work. The BBC reports government ministers as saying there are over £4 billion of arrears and for every pound of that recouped, it costs 40 pence. The total running costs are £460 million per year. The problem is simple: it is cost-inefficient at being inefficient. 

Maria Miller, Minister in the Department for Works and Pensions, believes that the present system 'drives a wedge between parents'.  There are, apparently, queues of people "who can't come to their own arrangements" under the present system. Cryptically, for those people who can't come to their own arrangements "we will be making sure that the current system, the statutory system, actually works harder and has more depth". Aside from whatever it means for a statutory system to have 'more depth', that seems fine. Separated couples who come to their own arrangements are much happier and the arrangements do last longer (see the entire FDR-Ancillary relief system for proof). Anything that obstructs that is regrettable.

In the large majority of relationship breakdowns people will only seek the help of an outside agency when things are at their very worst. Either people will be able to arrange things themselves or they need help. If they need help, one can assume that there is already something of a wedge between them. Perhaps there are some people who simply wish to formalise their arrangement through a government agency, but those are people whose compliance with the system is unlikely to render the process defective. The headline grabbing problem of the CSA, in whichever identity, has been its inability to deal with those who are deliberately trying to defraud and cheat the system.  The fact that there are lots of people out there happy to come to their own arrangement is really not the issue.

The overemphasis of mediation in all this is so de rigueur.  Mediation is the Government's answer to all family problems these days; it's cheap and allows people to make their own decisions. Maria Miller explains '…we believe that support, such as mediation, can play a greater role in assisting parents to collaborate and reach a family-based arrangement that is in the interest of their children.' It is hard to argue with that but, frankly, bizarrely, the paper goes on to state, '[f]or many this will take the form of emotional support that allows them to understand the needs of their children and the emotional position of their former partner. Through this support they can reach a point where they can talk to their partner and begin to reach an effective agreement on their maintenance arrangements.' What's with all the emotion? Whilst family lawyers just can't get enough of the touch-feely, do we really need to conflagrate a child's emotional needs with their financial needs? There is a dangerous game here. Once one starts tying up the emotional with the financial, one enters the world of emoto-financial blackmail, in which the child is always the loser. The cardinal, always wrong, keystone of this: the darkly covert whispering in the paper of linking maintenance to contact. Goodness, whatever happens: Minister, do not make the mistake of thinking the two should ever be linked. 

Let us turn then to the idea of the system working 'harder'. We accept that we have a failing system. It is inefficient in terms of output and mechanism: what do we do?  Charge the people applying! Charge them all! The very poorest? Those on benefits? Charge them all! According to the BBC, "under the proposals parents unable to agree could be charged about £100 .... those on benefits could pay about £50, £20 of which would be paid up front and the rest in instalments. The charges would not apply in cases where there has been domestic violence."

So, the large number of parents who deliberately decide not to provide for their children, those who constantly move address, change jobs, change their names will now be caught, finally, by the change to the system whereby.... the applicant... not them... pays to apply. If you want to stop a floodgate opening up, if you want to curb the number of people doing something you make it more difficult for people to do that thing. The Government itself does it: don't want people to smoke/drink? Tax cigarettes and alcohol to the hilt. Here, the Government want more people to keep using the child support system, so, they propose to charge them.  It doesn't make sense. Surely, it will either make the number of people applying remain the same (because they look at a cost benefit analysis of what they should  get under the statutory scheme) or will reduce it. It is not going to encourage more to apply or give confidence in the system to those applying. It is to look at a problem and provide a different solution: 'The dog is barking? Don't worry I've locked the cat in the study'.

You might say that the number of applicants is not the problem; it is processing those claims effectively. In that case, nothing that has been proposed so far does anything to actually address what is in fact the real problem. The Government's current response is revenue raising, pure and simple. Take a huge group of people, such as parents who have separated, and charge all of them for a service, such as provision for their children, that ultimately they must take part in. The Government is forcing parents, even the most disadvantaged, to subsidise their own failing system. Remember there were two distinct problems: cost inefficient and inefficient. The present proposal saves the Government money, making it more cost efficient. The other side of the problem: the inefficiency of the system? Oh, well, at least it will not cost the Government as much for the system to be so inefficient.

The bizarre reference to an exemption where there has been domestic violence is, frankly, just odd. The relevance of domestic violence to child support is none. How are the allegations to be tested? Will there be a fact finding every time an application is made? What is domestic violence? Actual violence or just threats? Is not some emotional harm worse than actual physical harm? What about the emotional harm of financial abuse? Does that not mean, ontologically, everyone applying should tick the 'domestic violence' box....?

The Government are presently consulting on changes ( Here is a thought: if after 20 years of trying to make it work in the bureaucratic world of the civil service has not worked, return the matter back to the Court process. Not enough time in Court lists? Well, don't cut so much from the Court system then.