The vilified child support agency faces abolition, but its proposed replacements could leave parents without proper legal advice. Jon Robins investigates


‘I am frightened for non-resident parents. It is not a great time to be a separated father,’ reflects Stephen Lawson, a partner at Warrington firm Forshaw. Currently, the Child Maintenance and Other Payments Bill, which will abolish the Child Support Agency (CSA) and deal with the perceived menace of ‘deadbeat dads’, is having its final reading in the House of Lords and is expected to receive royal assent in the spring.



The sprawling bill contains a package of reforms designed to put the wind up recalcitrant fathers, such as the use of deduction from earnings orders to collect maintenance directly from wages, powers to confiscate passports and driving licences, and even curfews. Lawson, a litigator who cut his teeth in personal injury work, is one of a small band of practitioners who deals with the discredited CSA on behalf of single mothers and, increasingly, non-resident parents (95% of whom are fathers).



Lawson has long called on the profession to get to grips with this complex area of law because of the huge unmet legal demand. The CSA affects the lives of around 2.8 million parents and 1.4 million children, but the staple response from his professional colleagues is, he says: ‘That’s the CSA – we don't do that’.



So why are lawyers so reluctant to take on an agency when it apparently causes clients such abject misery? ‘My hunch is that solicitors fear they will get their fingers burnt,’ says Lawson. ‘The issues are complicated, the size of some of the files can be huge and you need to be very careful that you are paid.’



But Lawson also points out that there are ‘cultural issues’ explaining why lawyers generally do not touch the CSA. ‘At the outset it was designed to be a straightforward system in which lawyers would have no place,’ he says. ‘They were deliberately excluded by the government, with no legal aid for tribunals. My experience is that you shouldn’t be deterred.’



James Pirrie, a partner at London firm Family Law in Partnership and a member of family lawyers group Resolution’s CSA committee, agrees. ‘Lawyers are unwilling to treat the CSA as an integral part of their divorce and finance work and, because of that, they are going to make mistakes left right and centre,’ he says. ‘I think a huge number of mistakes aren’t even spotted.’



Resolution is concerned that the new regime, which will introduce the Child Maintenance and Enforcement Commission (CMEC) to replace the CSA, could mean that parents will be increasingly left without proper legal advice. The reason for this is that the new legislation will effectively do away with the obligation on benefit claimants to go through CMEC, driving many ex-couples to sort out their own finances post-split. ‘The objective of CMEC is to get both parents to be financially responsible. That was never the job of the CSA,’ explains Kim Fellowes, a partner at the Newcastle firm Dickinson Dees who heads up Resolution’s child support committee. ‘The remit of the CSA was to get as many fathers to pay the [equivalent of] state benefit to the wives, rather than the state having to pay it. It was all about the benefits.’



The proposed legislation is ‘very much about focusing people towards voluntary arrangements’, Fellowes argues. ‘Clearly, what they want in the future is a streamlined service with a much smaller caseload,’ she says. ‘The difficulty for them has always been that they can’t actually cope with the mammoth number of cases coming through the system. The caseload as it currently stands is 1.4 million, and about 70% of that caseload is benefits-based. They are hoping that, by removing the “benefits compulsion”, a considerable proportion of the workload will just fall away.’



Fellowes reckons this is ‘a very naive and simplistic’ view to take. Bear in mind, she says, ‘what a vilified and hated organisation the CSA is’, and that the resentment and anger of those affected is not going to disappear overnight. ‘Up until now, parents with care have had the shoulder of the CSA to lean on - albeit to a pretty limited and rather unsatisfactory extent,’ continues Fellowes. ‘But now the CSA is going to fall away. What are the parents with care for children going to do? Unless proper advice is made readily available, the big worry is that organisations like Citizens Advice and One Parent Families won’t be able to cope with the demand.’ Support groups, including the newly merged One Parent Families/Gingerbread and Child Poverty Action Group, are calling upon the government to clarify its plans for support and advice for parents.



Informal deals are likely to work well for those parents where the break-up has been amicable, acknowledges One Parent Families/Gingerbread. ‘Sadly, this applies in only a minority of cases,’ stresses Janet Allbeson, the group’s policy adviser.



The government is targeting a 40% increase in voluntary arrangements and a drop of 400,000 in the number of cases that CMEC will have to undertake, saving an estimated £200 million in administration costs in the process. ‘Throughout the passage of the bill, we have made clear that CMEC will not push people into making any unsuitable arrangements, whether these are voluntary or statutory,’ says a spokesman for the Department for Work and Pensions. ‘Research shows that many parents would prefer to put in place a voluntary arrangement between themselves, and that parents with voluntary arrangements have found these better reflect their needs and the needs of their families.’ He adds that CMEC will launch a new service nationally later in 2008 to provide parents with impartial information and support to help them put in place the maintenance arrangements they choose. These will include ‘financial calculators and tools to help both parents work out and manage their monthly budget’. ‘We are working closely with the voluntary sector to ensure that the information we are providing to parents is both accurate and up-to-date,’ the DWP’s spokesman adds.



Resolution argues that the likelihood of dispute between parties is unlikely to diminish, because the government has decided to preserve the so-called ‘12-month rule’. Under this rule, one year after parents have come to their own arrangements, either party can end the arrangement and make an application to the CSA.



Resolution surveyed its members in January 2008 and found widespread support for the abolition of the rule on the grounds that non-resident parents had cottoned on to its usefulness in negotiating down payments after one year was up – leaving mothers feeling obliged to take less favourable deals or else be dragged down the CSA route. One practitioner wrote: ‘It is difficult to see that the 12-month rule benefits anyone beyond a non-resident parent who is alert to the inadequacies of the CSA and the child support formula, and who is motivated to take advantage of these inadequacies’. Fellowes puts it more succinctly: ‘What’s the point of any parent sitting down to try and reach an agreement when after 12 months either party can rip it apart?’



Bristol-based sole practitioner David Burrows specialises in child support cases, in particular judicially reviewing the CSA. ‘This system is terribly, terribly cumbersome,’ he says. Burrows reckons that as much as 40% of his workload is CSA-related. ‘Suppose you are a non-resident parent and you get a letter from the CSA asking for £10,000, and you argue that the assessment is nonsense and that you owe £2,000. The only way to challenge that figure is not under the scheme at all but by judicial review.’ He argues that this issue has not been dealt with at all in the new bill, leaving judicial review the main way of challenging decisions of the CSA and its successor body. Burrows recently acted for the barrister Michael Cox, who was jailed for 42 days after he refused to pay £365 a month to the CSA. He had argued his three children spent half the time living with him and so he was not an absent parent. The court rejected this contention.



Lawson has spent time arguing in the courts that, under the law of negligence, the CSA owes a duty of care to parents it has failed. In 2006, he acted for ‘Martin’ (who cannot be identified for legal reasons), a father of two who tried to force the CSA to sell the house of his former wife to recover £52,000 in outstanding arrears. The previous year, the CSA agreed payments of £10 a week from the estranged mother of a boy (12) and girl (10). ‘It would have taken at least 200 years to have paid off what the CSA had deemed fair at that rate,’ said ‘Martin’. In that case, the mother cut all contact with her two boys after her four-year marriage fell apart. ‘Martin’ decided to take legal action when the CSA refused to enforce a charging order over the property of the mother, who had paid less than £100 in maintenance since the marriage broke down in 1996. The case settled a couple of weeks before going to trial.



Last year Lawson represented in the Court of Appeal Denise Rowley, a 51-year-old mother from Leeds, arguing that the CSA owed her a duty for its failure to enforce maintenance payments. She had been awarded just £16 a week, and contended the assessment was incorrect, causing her financial hardship. Resolution, which intervened in the test case, called the judgment ‘a major blow to those families who have fallen foul of the inadequacies of the CSA’.



‘The failings of the CSA are legendary and it is astonishing, therefore, that the government has thus far been silent on its plans to recompense those failed by it,’ it said.



As for the proposed enforcement measures against non-paying fathers, the support group Families Need Fathers describes them as ‘punitive, Draconian and internally contradictory’. The perceived contradiction is that the proposed powers to take away passports could be wielded by CMEC, but a court order is needed to confiscate a driving licence; the group points out both measures can ‘damage someone’s livelihood and thereby their ability to pay child maintenance’.



Lawson is concerned that the powers under the legislation will allow CMEC to make deduction of earnings administratively, ‘which is taking away the right to judicial scrutiny’.



‘What worries me is the erosion of rights in relation to non-resident parents, where the government is taking away people’s right to go to court. I am worried as to the amount of discretion to be exercised, particularly in relation to arrears in the deduction of earnings awards. It is totally discretionary as to whether they take 1% or 40%, and the temptation is to say in every case they’ll go for 40% irrespective of who’s at fault or how the arrears arose in the first place. It might well be the CSA’s fault.’



The huge issue that overshadows reform of the child support system is historic debt. ‘In my view, politicians have not addressed the problems of the past,’ says Lawson. ‘We are not starting with a clean sheet. We are starting with a history of £3.7 billion maintenance arrears outstanding.’ Of that sum it has been estimated that only around £1.5 billion is potentially collectable. ‘The CSA already has an enormous armoury of enforcement weapons at its disposal that it has failed to apply with sufficient rigour,’ says One Parent Families/Gingerbread. ‘The problem in the past hasn’t been a lack of tools. It is that debt collection and enforcement have had a lower priority within the CSA, playing second fiddle to processing applications, initiating arrangements and ensuring ongoing compliance.’



Janet Allbeson argues that the CMEC needs to come to a realistic compromise with its predecessor body about what is achievable. ‘There is a lot of old debt and a lot of it is not collectable,’ she says. ‘In a sense, I think they need to own up, if that’s the case, and they need to own up to those parents concerned.’



Jon Robins is a freelance journalist