The author does not wish, in any way, to be tendentious and will use the terminology of the relevant legislation which is Receiving Person (“RP”) or Person with Care (“PwC”) for the recipient of child maintenance and Paying Person (“PP”) or Non-Resident Person (“NRP”) for the payer of maintenance.
It should be recognised that the vast bulk of PP/NRPs are men, and the vast bulk of RP/PwCs are women. While cases which get to court are a relatively small subsection of the total number of child maintenance cases and the author’s experience is not a scientific sample perhaps in 1 in 200 cases is the PP/NRP a woman.
While shared care arrangements are commonplace, (and there are many instances when teenage children mostly live with their fathers), the bulk of the responsibility for looking after children and, as a consequence, the major entitlement to child maintenance, rests with the mothers. One of the key indicators used in assessing both the ongoing entitlement to maintenance and who is to be the recipient is the payment of Child Benefit.
Origin of Child Maintenance Service
In the late 1980s there was a general dissatisfaction with how children of divorced or separated couples, or indeed couples which had never been formally married but were no longer together, were maintained. There was a perception that absent fathers (for it was usually fathers) would leave the family home and refuse to take any financial responsibility for their children.
When the courts were involved there appeared to be a good deal of inconsistency in terms of the orders which were made. Some orders were for trivial amounts, and it was difficult and time-consuming to get orders varied. When substantive orders had been made it was often costly and difficult to enforce them.
It seemed that some mothers were content to collect benefits rather than seek to pursue the fathers for maintenance and some absent fathers would be earning good money but not paying their way. Although there was a unit within the Department for Social Security which was tasked with pursuing such absent fathers its impact was limited. The burden had shifted to the state.
As is so often the case there were stories in the press and media about the situation and there was a general feeling that “something must be done”.
It was against this background that the Child Support Act 1991 (“the Act”) came into being and established the Child Support Agency (“CSA”). It was intended that the CSA would be an independent body who would impartially calculate a fair level of child maintenance which would be acceptable to both the PwC and the NRP. Unfortunately, as those readers who practice in the Family Courts will be only too well aware, some relationship breakdowns do not engender any equanimity or reasonableness.
The nature of the regime established by the act was helpfully characterised by the then LJ Hale in the case of Huxley v Child Support Officer  1 FLR 898, 908 where she said:
“The child support system has elements of private and public law but fundamentally it is a nationalised system for assessing and enforcing an obligation which each parent owes primarily to the child. It replaces the powers of the courts, which can no longer make orders for periodical payments for children save in very limited circumstances. Unless she can secure a voluntary agreement at least as high as that which the CSA would assess, the PwC is expected to look to the Agency to assess her child support according to the formula, whether or not she is on benefit. The fact that it does her no direct good if she is on means-tested benefits, and that much CSA activity so far has been in relation to parents on benefit, does not alter the fundamental characteristics of the scheme.”
When the CSA came into being it seems to have been assumed that absent fathers would be relatively happy to cooperate with it to maintain their children and this was certainly the position for most. Part of the initial focus was in ensuring that mothers claiming benefits, rather than seeking a contribution from the absent father, were compelled to cooperate with the CSA to identify and locate the NRP. This compulsion, pursuant to section 6 of the Act, remained in force until July 2008. There was also provision that in the event that maintenance was recovered from a NRP some of this could be clawed back for the benefit of the Secretary of State.
There have been three substantive sets of rules for the calculation of the maintenance to be paid by the PP/NRP. The initial rules were complex and inflexible and involved consideration of both the PP/PwC’s and the RP/NRP’s income. This lack of flexibility led to delays and some unfair results. Campaigning by organisations such as Fathers for Justice challenged the application of the rules.
It also became clear that some NRPs were not going to cooperate with the CSA and the reforms needed to be introduced to compel such individuals to pay the maintenance due. Over the last 30 years there has been a consistent trend to increase the powers of the CSA and its successor organisations to access information from other bodies, both governmental and non-governmental and to increase its powers to recover maintenance due.
There has also been a trend to try and simplify the methodology for calculating the maintenance due. When the legislation was originally introduced it was hoped that this would result in a saving to taxpayers however the costs of operating the system both in respect of the performance of maintenance calculations and the collection thereof means that the hoped-for savings do not appear to have been realised. The most recent trend is now to encourage PP/NRPs and RP/PwCs to use CMS/CSA to calculate the maintenance due but to have the payments made by the PP/NRP directly to the RP/PwC without the CMS/CSA becoming an intermediary (so-called “Direct Pay”). Of course, there are a number of cases where the PP/NRP is reluctant to make payment and in those circumstances CMS/CSA continues to be involved in recovering money from the PP/NRP and paying it to the RP/PwC (“Collect and Pay” in the jargon).
The Covid pandemic had a significant impact on the operation of the CMS. The need to process a huge increase in the claims for universal credit and other state support led to the redeployment of staff from CMS/CSA to processing benefit claims.
This meant that there was a 6 to 9-month period where there was a virtual standstill in the processing of CMS/CSA cases be it in making maintenance calculations or taking enforcement action.
Staff have now been returned to their original duties and efforts are being made to clear the backlog of cases.
CMS / CSA role and individual parental rights
One of the features of CMS/CSA being an independent body is that it becomes the “prosecuting authority”. RP/PwCs have no power or standing to take any actions to compel the PP/NRP to comply with the child maintenance obligations pursuant to the Act. (There are some circumstances when there are residual rights of action which are outwith the framework of the Act, these usually relate to cases where the income / wealth of the PP/NRP is above the upper threshold used in maintenance calculations). The Act confers no right of recovery or enforcement on the RP/PwC. This was definitively determined in the case of Regina v. Secretary of State for Work and Pensions (Respondent) ex parte Kehoe  UKHL 48. Lord Hope of Craighead made this clear in paragraph 35 where he said:
“I would conclude that the 1991 Act has deliberately avoided conferring a right on the person with care to enforce a child maintenance assessment against the absent parent. Enforcement is exclusively a matter for the Secretary of State.”
The consequence of this is that the RP/PwC is dependent on CMS/CSA to assess and secure any child maintenance due.
Readers may be slightly surprised that reference is made to the child maintenance regime as it operated in the late 1990s and early 2000s. It might very reasonably be assumed that monies owed from so long ago would not be recoverable as a result of the provisions of the Limitation Act 1980. However, child support debt occupies a very particular place in English law as, save for debt rising prior to 12 July 2000, the Limitation Act has been disapplied.
Similarly, child support debt, is not extinguished by a bankruptcy or other insolvency proceeding. This means that somebody can still be pursued through the courts, and otherwise, in respect of a child support debt that arose more than 20 years ago, notwithstanding the fact that they may have been made bankrupt several times in the interim.