SCHEDULE 1 AND STATUTORY CHILD SUPPORT: A DOUBLE ACT?
This legislation is, as I have said, the Cinderella of the family jurisdiction. Often passed over and underused I seek to explain here its origins and objectives. It was of course the warmup act for the Child Support Act 1991 but it can be so much more than the big-name headline went on to achieve. The two statutes have a shared history and connection. Schedule 1 can assist in many cases where the CMS has not been enough.
In 1989, only 20 years after a revolution in divorce law, the Children Act 1989 was passed by Parliament. It was not just the concepts of residence and contact, parental responsibility and the voice of the child which were so enlightened but also the concept of codifying financial support for unmarried parents before the Child Support Act 1991 introduced state collection of child maintenance.
If you looked back at recent history when schedule 1 was being drafted, what was there to see? The Children Act 1989 was passed only 20 years after the Divorce Reform Act 1969 which introduced the concept of divorce based upon “irretrievable breakdown of marriage”. Consideration of this also ground-breaking legislation paints a clear picture of the recent past in the family law of the time. Before the Divorce Reform Act 1969 came into effect in 1971, divorce could only be granted to a woman on the basis that she had proved, through her oral evidence, adultery, drunkenness, incurable insanity or desertion on the part of her husband. The husband had more options at his disposal, but divorce was still a matter of contentious litigation demanding evidence and proof. Readers of John Mortimor may remember the stories he told of his blind barrister father on the train, listening intently to his wife read out the contents of various salacious divorce statements: the responding party would book a hotel and the petitioner would send an agent to report upon the presumed adultery as “Mr and Mrs Smith” booked in for the night. The agent would duly report back to the petitioner who could then present the confected evidence in support of the petition to end the unhappy marriage. The parties often had to work in concert if they were to achieve a divorce. The unfairness needed to be addressed. After the Second World War, society had begun to change quickly. Marriages struggled under the weight of emotional baggage following war time experiences and periods of separation and independence. There had been a Royal Commission on the issue of reform in the 1950s but it had struggled to make recommendations. In the 1960s the Archbishop of Canterbury took up the challenge and convened a group which came to support the concept of no-fault divorce. After long years of discussion and debate about the effect upon us as a society, finally the law was changed. The 1969 Act was a major piece of social legislation, eventually passed by the second Wilson government. It took persistence, politics and planning. For the first time it allowed parties to divorce by consent after 2 years of separation, or without consent, on the application of one party alone, after 5 years of separation. It removed the need to prove fault.
Then came the 1970s, a time of dramatic social change and huge economic instability. It was not until 1987 that the Bastardy Acts were repealed, which had codified the different treatment and recognition of children born out of wedlock. It had taken 69 years of campaigning to secure this step towards equality for the children of different unions.
As I sit typing this, the commencement of the Children Act 1989 is 28 years ago and its drafting more than 30 years ago. It was conceived and honed in a time which for me holds memories of the rah-rah skirt and electric blue eyeliner, a Saturday treat 7” vinyl single and hair-sprayed new romantic pop bands whose posters were stuck on my wardrobe door. The alternative comedy scene was highly political and most people were engaged in or by politics. Our families were different, as well as our dress sense. Our Grandparents had lived through the Second World War and our parents had grown up in a time when the teenager and young adult was struggling to assert itself as a singular but recognisable stage of life. Children of the eighties still heard epithets such as “children should be seen and not heard” and “spare the rod and spoil the child”. Corporal punishment was used enthusiastically in most schools. Few families yet broke out of the gender stereotypes and children’s books confirmed the bias. LGBTQI+ acceptance was in the minority and gay parents were viewed with suspicion and a widespread lack of understanding. However, social change was starting to shout about itself. The dungarees, bovver boots and short hair marked out the gay pride campaigners who were determined to support the largely conservative welsh miners during the pit closures and many of the Tops of the Pops appearances challenged the understanding of the generations above us as to the parameters of sexuality and gender. In the cities, brick-sized mobile telephones were being brandished by Yuppies, excitedly celebrating the Stock Exchange’s Big Bang and share ownership for everyone as the utility companies floated. Sloane Rangers in velvet Alice bands and designer clothes appeared in magazines and acquisition became an aspiration. North Sea oil money continued to flow.
At the other end of the economic spectrum, welfare spending was escalating and the Thatcher government was keen to pursue a managed “housekeeping” budget. In 1989 it was said that 70% of lone parents were in receipt of Income Support and the cost of meeting the bill for welfare benefits had tripled during the nineteen eighties. There was a caricature in certain parts of the press of the benefit dependant, lone parent who was more take than give. The demographic may have been changing but lone parenthood, a burden usually carried by mothers, was still treated with a level of stigma in many parts of society. There was far less childcare provision, far fewer nurseries and no free childcare vouchers. Child minders were available but they were not regulated. There was no working and child tax credit yet, only child benefit and part time working was often not financially viable or available around school holidays.
The thinking behind state collected child support
There are figures which suggest that only 30% of all lone parents and 22% of lone parents claiming benefit at that time were in receipt of child support. The government was committed to shrinking the state and needed to think of ways to reduce the perceived benefit dependency and simplify the means of collection of child support. Child support was ordered by the Courts at that time, so there was little consistency, and even less accessibility and it was enforced by the Department of Social Security. Legal Aid was of course still available for parents to issue court proceedings but that involved further government funding. Often the sums involved were mediocre compared to the cost of securing them and the cost/benefit analysis showed that this was not economically viable in the longer term. The intention of those legislating was to empower resident parents to take action themselves, to reduce child poverty and, with the support of the state for enforcement, for the non-resident parent to do the right thing and pay, so relieving the taxpayer of that burden.
A different system
I learned from one case I advised on that in Norway the government will step in and pay child support if a non-resident parent does not. In that case the non-resident parent was a British citizen living in England and the child and resident parent were Norwegian, living in Norway. When the child attained 18 years of age the state totted up the entire child maintenance bill it had paid to the resident parent over the years, added some interest and registered it in the local English magistrates court. The non-resident parent (who had never met the child) got a surprising summons for an even more surprising amount to their local Court. That is an example of a different approach.
The start of the Child Support Act 1991 legislation
Back in the UK in 1990 the government issued a white paper called Children Come First which proposed a system of centralised child support collection based upon a statutory formula and the removal of the Court process, save in unusual cases. This gave rise to the Child Support Act of 1991 which in turn gave birth to the Child Support Agency which opened its doors and turned on its computers in 1993. It attracted much criticism from an early stage. Its remit was to calculate what a non-resident parent ought to pay, to collect that money and then to transfer it to the resident parent. There were strict rules set out in the Child Support Act 1991 about the circumstances in which the child support agency could and could not make an assessment.
Child support formulae and the 3 systems
The Child Support Agency had 2 sets of formulae and criteria it applied: cases from 1993, cases from 2003 and then the Child Maintenance Service applied a 3rd set of criteria and a different formula again for cases from 2012.The Independent Case Examiner’s Office was set up in 1997 as an independent body to deal with complaints about the child support agency. The main complaints were delay, error and lack of action but it also had serious problems with poor communication, bad management and poor outcomes for payer and payee. The complaints came from both the payer and the payee. Despite the child support agency opening in 1993, the 1990s saw little change in that figure of only 30% of unmarried lone parents receiving any financial support from the non-resident parent. A Joseph Rowntree study in 1996 looked at 53 low income lone parent families. Not one had been assisted by the legislation and a quarter of those families had suffered a negative impact upon its relationship due to problems caused by using the service.
In 1997 the Labour government began to reform the system and the Child Support, Pensions and Social Security Act 2000 was passed. These new reforms went live in March 2003 along with a new method of assessment. By 2006 a government policy evaluation found that of 670,000 cases where the non-resident parent had been assessed as having a liability, only 400,000 could show money being paid which then reached the resident parent. There was a backlog of 300,000 case and £3bn of uncollected debt. Still only 30% of lone single parents received any child maintenance from the non-resident parent and only 15% of those on Income Support received any maintenance through the child support agency. There was little evidence of changes in the numbers of receiving parents from when the Courts had been seized of the matter back in the 1980s. Eventually the Child Support Agency, and its enforcement arm the Child Maintenance and Enforcement Commission were replaced in 2012 by the Child Maintenance Service and its enforcement arm the Child Maintenance Group, under the coalition government. This led to a third set of collection rules, this time based upon the payer’s gross salary as evidenced by the documents sent to HMRC. Service users were encouraged to move old cases onto the new rules. This took 6 years and the last cases were moved over in late 2018.
The current formula
This is the system now available to users. The basic formula is 12% of the payer’s gross income for one child, 16% for 2 children and 19% for 3 or more children. There are deductions for pension contributions, having children in the payer’s household and the nights the children in question stay with the payer.
How the current system is working
Research from Slater & Gordon solicitors in 2018 found that up to 75% of lone parents received something from the other parent but 1/3rd of them fulfilled the definition of living in poverty, relying on loans and family support and even in 11% of cases using food banks. About 23% of families were lone parent families.
The Children Act 1989 schedule 1 can help, in many cases. It is not for unusual circumstances. It is legislation that was born out of the intention to assist all separated parents in a changing society and it has certainly not been rendered otiose by the child support legislation which was drafted to reduce the state’s welfare bill but which has been singularly unsuccessful in its early years and still struggles to meet the needs of many today.