|OBSERVATIONS ON THE NEW CSA DEC 2006 onwards|
Our Ref: PD/MEG/ 16 January 2007
F.A.O: Sarah Davies
As a Child Support Practitioner of some 10 years standing, I have found myself acting for many clients of all genders, races and creeds.
I am able to say that there has been no single overriding satisfactory comment made by any section within my client bank towards any system of Child Support Maintenance that has been put forward since 1993.
In general, I am able to say that the non-resident parent, who may be considered to be compliant in isolation to the bulk who it is felt are not compliant, feel that both the two systems that are running today pitch the maintenance at too high a level.
We have never been able to move away from the feeling that the non-resident parent's feel that the money goes to their ex partners or wives and not to the children and one overbearing comment that I have always received is thus:
It takes an inordinate length of my time explain that this was never really possible under the court system let alone possible under any system derived by any politician or political party to impose payments to be taken or made from the non-resident parent for the benefit of the separated family.
I use the word 'separated family' advisedly because it must be a tenant that cannot separate the support of children from that of support of the mother and this has never been a tenant that society has operated upon for many
many years, if indeed ever at all.
NON RESIDENT PARENTS MOST COMMON COMPLAINTS
1) The amount they have to pay is too high.
2) It does not benefit the children, it benefits their ex wife/partner.
3) It does not do anything for the standard of living because she's on benefit and doesn't receive any of it.
4) It is no more than a tax gathering exercise.
5) I cannot pay it to my child and it is unfair.
At this point I am deliberately avoiding the impact on businesses, small or large and I will come to the proposal for removing the payments from gross pay later.
Now I turn to resident parent because one might think that they should not have any complaints at all but that is far from the truth, as we all know.
The resident parents that I deal with are indeed just as aggrieved at the actions of the Agency but from a totally different prospective.
RESIDENT PARENTS MOST COMMON COMPLAINTS:
1) The Agency does not have enough investigative powers
2) He has not declared his true status
3) He has not declared his true earnings
4) He is self-employed, what chance do I stand?
5) The Agency have had my application for 12 months and lost it
6) The Agency have had my application and they have done nothing with it
These are just a few of the comments of the non-resident parent and indeed following interaction with another practitioner and where I have been acting for the mother and he has been acting for the father, in circumstances the non-resident parent has put in wage details, which are patently incorrect and that situation has latterly been corrected with the Agency on behalf of the mother by myself. In adversity we have reached agreement for payment.
But at what cost? To the adults, complete and utter stress and for the child, well the child in this case was too young to know what was happening.
It is certain that we cannot get away from any system that is designed to ensure payments are made for the benefit of children from non-resident parents but noting the above, the conflict in these circumstances is legion.
It is proposed that consent orders should not be permanent because this would 'place too much stress on the court system'.
It is with respect to legislation in this country that is purported to be put in place upon a 'holistic basis' that we are falling down. Whilst we are giving certainty in legislative proposals, 'the workability' of such proposals have been poorly thought out and poorly put in place.
We would not be in the situation we are now with Child Support having expended so much money and having caused so much public outcry, if there had been on day one a 'holistic thought' regarding the whole of matrimonial law the whole thorny subject of Child Support and a more comprehensive trial of any system that was proposed within the country.
If we note above that fathers feel that the two systems that we already have in place CSCS and CS2 have produced payments that are too high, then what are they going to say when they find out that it is proposed that we base an assessment on their gross earnings?
Following brief consultation with my client bank and in the main I have to say from parents with care, they are horrified that their ex partners and husbands would be assessed on their gross earnings. This is a total unnecessary anathema. Any man who has paid tax, national insurance and pension, who is then assessed at a lower rate has now proposed, being 10, 15 and 20% for 1,2 or 3 children out of his gross pay will not then feel that he is being fairly treated.
Those parents that I have dealt with within the Australian Child Support Agency, certainly feel that this is an anathema and with respect to the provision of information on an historical basis in the Australian CSA, it has proven to be an extremely an unfortunate organisation to deal with.
If it is felt that there is no system in place in this country that can capture all of the basic cases, then surely with respect the standard earner on an employed basis, it is sufficient to ask the employer to provide his earnings details tax, NI and pension as we already have been able to do and should continue to do.
With the self-employed it is different, we have a situation with the self-employed, where even the Inland Revenue, VAT and the conclusion of Child Support Agency has been no different, that they are a very difficult group of people to administer and to obtain information from.
Therefore, a proposal we have to able to investigate credit reference agencies and financial services for the provision of information concerning bank accounts, investments etc. should be treated with a great degree of circumspection. Anyone who has nothing to fear should and would not be subject to such an investigation. However, for those who deliberately evade, they should.
The problem here is that we adopt a global solution, which is addressed only to illicit information from a small minority and once more, we would then give rise to public hostility and an adverse reaction.
Whilst I appreciate that an awful lot of the provision of information must rest with the resident parent, I also feel that to put in place a legislative body with an overbearing and completely blanket solution would be wrong. It seems to me that we are proposing a system, which in its operation would be seen to be so draconian and would in fact produce the same reaction but from a different point of view that the first two systems have produced.
In an endeavour to alleviate child poverty, we do seem to be moving towards evermore exotic and draconian methods rather than considering the best way, the fairest way, and the most acceptable way.
Now one of the things that has been discussed consistently amongst some clients is why does the money have to go the state, why cannot my ex partner or wife keep some of it?
If we think back I understand that the American system when CSCS was considered way back in 89/90/91/92 and 93, one of the things that was said was "do not where State Support is in payment, put all the money back in to the treasury".
We face this question today with one heartfelt comment, that "why cannot mom keep more of the money?"
Following discussions in general about this point, the one thing that has come to light is as follows:
"Why should they?"
"Does not the tax payer have a say?"
"Why should we continue to work to support them?"
This is going to be a fine line in consideration, together with the thoughts that anyone may have regarding working tax credit and it's impact in these circumstances, together with the impact on income support that allowing the non-resident parent to keep more money would have together with the tax credit system and the minimum wage in this country as a whole, could produce most horrendous results and backlash in this country, that we have not seen for many a year.
To have a sound bite of alleviating more children with respect to lifting them out of poverty but when we come to the detailed consideration of how we go about this, then we do begin to see I believe that this is a potential mine field.
My client bank feelings are echoed in this entire email and whilst I must admit that as a professional operating in the field of Child Support Agency advice, it is only those clients who can afford the necessary fees and of cause my views will not be the same as those that come from the National Council for One Parent Families and that come from the Citizens Advise Bureau and any other charitable advisor that I do believe, that will be on a par in sentiment with any comment that is made.
It is too dangerous to take any one simplistic point of view and implement it in this system and to that end I now enclose a press release from one of the firms of solicitors that I deal with. This is entitled 'press release 13.12.06 Child Support – Getting It Right First'.
I think you will find its content self-explanatory, at Lawson-West being one of the largest firms in Leicester
TO SUM UP:
1) I agree with the removal of compulsion for separating couples to have to use C-MEC except in the most un-compliant cases.
2) I believe that placing both names, of the 'biological parents' of the child on the birth certificate is correct.
3) The role of the courts? If you wish to foster both certainty and agreement then an order of the court must be seen clearly and unequivocally to fulfil both of the above and thus place within the general publics mind assurances that what they do is lasting
4) The use of historic tax-income is 'close enough to the current financial position of most non-resident parents'. This is simply a corruption of the Australian system, which is also at this time under a 'holistic review' I understand simply to reduce the percentages for each child in return for this purported simplification is not equitable.
I am not in agreement with a variation percentage of 25% in the gross pay before a change of circumstances can be bought about.
5) If charging for the use of C-MEC is brought in then both parties should be charged a fee. On divorce where 'assets' are concerned, neither party can claim costs off the other in normal circumstances. If as you mention on page 42, Para 2.47 'non the less, the Government is still determined to develop a culture in which the welfare of children is paramount and people are clear that fatherhood, as well as motherhood, always comes with both rights and responsibilities', then as with placing both names on the birth certificate, the costs should be shared to agenda the above.
6) To start a fresh or to enable clients of the previous two systems to apply to C-MEC. I would have thought by now that it can be clearly seen that one of the greatest problems arising with the introduction of CS2 was that everyone in CSCS thought that they would be rolled into CS2 on day one. This is a political decision and not one that should be floored again as per above.
7) The legacy of debt. Would it not be better to enable people to reduce the 'penalty assessments' to full maintenance assessments on an actual basis within the law? Whilst I understand the re-valuation of the debt from 1.3 billion pounds to 0.5 billion is a quick fix I do not agree that this will serve the mothers well.
8) Parting couples with one child each, by agreement should be allowed to have a private agreement underlined by legislation, which precludes them from going to C-MEC.
9) On page 66, Para 4.28, I am somewhat perturbed at the lack of joined up thinking when a 'child' can at age 17 drive a car, and at 17/18 join the armed forces and fight for this country and get married at 16, that we now want to re-define the definition of 'a qualifying child' for C-MEC purposes only, to include '19 year olds in full-time non-advanced education'.
10) On page 76, table 5.1, 'sanctions imposed on non resident parents'. I would pose the question, that are we really proposing the suggestions within the white paper for tougher enforcement for such a small number of individuals as highlighted on that page. I find the proposals for short-circuiting, charging orders and liability orders to be very un-satisfactory. I do understand that the above table is just the tip of the current ice berg, and that the self-employed are difficult to deal with, however if the system was seen to be fair and clear in its interpretation, then I am sure it would be more acceptable by the above individuals.
11) Is it always to be assumed; that in practice the sole responsibility of the father is to pay the mother for the up bringing of the child/children? Should we not for the benefit of society try to foster a morally based acceptance of joint moral and financial responsibility of both biological parents for the benefit of the child/children?
Paul Doxey BSC Hons FPC III
FURTHER INFORMATION CAN BE OBTAINED FROM THE DEPARTMENT FOR WORK AND PENSIONS website
Two North West lawyers have won a major human rights battle at the Court of Appeal to protect parents from being unjustly jailed by the Child Support Agency (CSA).
Cheshire solicitor Stephen Lawson, a child support specialist and partner at Quality Solicitors Forshaws Davies Ridgway, and Liverpool barrister Matthew Stockwell, from St Johns Buildings Chamber, worked with QC Richard Gordon to bring two test cases before the Court of Appeal five months ago. The Judgment issued today by three judges, Lord Justices Ward, Richards and Patten directs the Child Support Agency to review "as a matter of urgency" its current legal procedures for making applications to send parents to prison when they fail to keep up maintenance payments. In the judgement, Lord Justice Ward condemned the lack of robustness and confusion in the current legal practices as "obnoxious" and "unreasonable" and stated: "the procedures adopted do not comply with the rights to a fair trial and were flawed." The ruling also recommends suspended sentences should now be limited to a maximum of two years. This means two fathers, Mr Kambiz Karoonian, on appeal from the Liverpool Family Court, and Mr Christopher Gibbons, on appeal from the Manchester Family Court, have now had the threat of prison quashed, although they both still owe child maintenance arrears. Mr Lawson wife is based. in Frodsham, and is delighted with the judgement. He said: "This case was always about fairness and justice. I hope this ruling will now end the unjust practice of non-resident parents, usually fathers, being jailed or threatened with jail without the opportunity to defend themselves properly. It is outrageous this has been happening in Britain in the 21st Century. "Parents may have heard nothing from the CSA for many years and then suddenly out of the blue they receive a demand for thousands of pounds. Many are simply unable to pay and are met with an application to put them in prison or disqualify them from driving.
"In another recent case, a father was arrested, taken to court and sent to prison all on the same day, with no opportunity to challenge the evidence against him. The CSA has been sending summons notices through the post, often to an old address, so this has led to some parents being tracked down and arrested, knowing nothing of the court proceedings. And the onus has been on the parent to prove why he shouldn't be sent to prison, which reversed the traditional burden of proof. "'The ruling means the burden of proof, the serving of summons notices and disclosure of documents will now be improved to a level similar to criminal proceedings - which is only fair if people are threatened with the ultimate sanction of imprisonment." The appeal centred on the case of two fathers. Mr Gibbons was appealing against a prison sentence of 21 days, suspended for 11 years, for non-payment of £2,895, issued on 3 August 2011, and Mr Karoonian was appealing against a suspended prison sentence of 42 days for non-payment of £10,959.21 - an amount he still disputes. Mr Karoonian, claimed the CSA harassed him and his current family so much, the stress led to his current marriage breaking down - a tragedy for his two small sons, aged four and six. He believes he is a responsible father and says he is in regular contact with his three daughters aged 19, 16 and 14, from two previous relationships. But after years of being unemployed or in low paid jobs he disputed the CSA's interim assessments and firmly refutes he owes this level of arrears. "The CSA were phoning every day, saying you are not a good father, demanding me to pay all the time. It felt like harassment. On the phone they were not professional - they were like loan sharks demanding their money. The stress caused by the CSA was the main reason why my wife and I separated," he said.
The Department of Work and Pensions may apply for leave to appeal to the Supreme Court.
For more information, contact Stephen Lawson at Quality Solicitors Forshaws
Davies Ridgway on 01928 739300 or email Stephen.email@example.com.
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