Family lawyers have slammed the child support agency for the way that it deals with the financial fall-out from divorce and separation. Paula Rohan asks whether the Courts are better placed to assess and enforce orders


Somewhere in the UK there is a multi-billionaire lounging in his mansion sipping champagne – while his ex-partner is left to bring up his child on just £20 a week. Family law solicitor Vanessa Lloyd Platt, who is acting for the mother, is furious, especially as her client had to wait 18 months even to get that amount.



Along with other solicitors in the field, Ms Lloyd Platt, a partner at north London firm Lloyd Platt & Co, blames the beleaguered Child Support Agency (CSA) for such ‘scandalous situations’, and describes the agency as her ‘bête noire’. Ms Lloyd Platt says: ‘It is outrageous that the people who need the money most are being deprived of it. The CSA makes so many daft, insane decisions and has caused so much misery to so many people – dealing with it is like attending a mad hatter’s tea party.’



Christina Blacklaws, chairwoman of the Law Society's family law committee, is equally infuriated. ‘Everyone knows that the CSA had been an unmitigated disaster, letting down children and their parents with its inefficiency and inflexibility,’ she says. ‘I know of many cases where this has caused not only great distress, but also hardship for families.’



The CSA was set up in 1993 following the passing of the Child Support Act 1991. Its role is to track down absent parents, set rates of payment, collect payments and enforce its own orders if necessary. It received 280,000 applications last year and deals with some 30% of child maintenance matters. In 2003, amid concerns that it was not performing as well as intended, it underwent a series of changes, including an operational overhaul and a new IT system.



However, the agency has not been enjoying a good time recently, coming under fire from the National Audit Office (NAO) for showing little for the £539 million spent on reforms in 2003. They were ‘a final but, in the event, unsuccessful attempt to deliver the policy behind the creation of the CSA’, said NAO head Sir John Bourn.



The NAO said that although the CSA had recouped some £5 billion from absent parents since 2003 – and benefited a number of the poorest parents and children – it was unsatisfactory that one in four cases had not been solved three years after applications had been made, with 333,000 cases still waiting, involving £3.7 billion. Furthermore, the CSA is spending 70p for each pound that it recoups.



Then last week the House of Lords heard a case involving a self-employed father, in which the mother had received 33 different assessments from the CSA over a five-year period. While the decision in Smith v Smith 2006 UK HL 35 focused on the issue of self-employed absent parents and whether capital allowances should be deducted from payments (the court decided they should not), the Lords were not pleased with the current regulations overall.



Lord Rodger of Earlsferry said: ‘The state of the regulations is obviously far from satisfactory. Mr Smith’s counsel assured the committee that the secretary of state was well aware of the problem. It is, therefore, to be hoped that, in the course of the current review of the child support system, appropriate changes will be made as a matter of urgency.’



As far as family lawyers are concerned, the Smith case is a classic instance of the shoddy administration of cases by the agency. Andrew Greensmith, chairman of family lawyers’ association Resolution, argues it is ‘yet another example of the havoc and misery that the CSA has brought to the lives of ordinary people; cases like this could be sorted quickly and easily by the courts’.



All this comes in light of the government-commissioned review of the agency, scheduled to report later this month, which is being undertaken by trouble-shooter Sir David Henshaw. He has admitted he has been presented with ‘a significant challenge’, saying, as he launched the review: ‘I am aware of the importance for millions of children and their parents of getting child support arrangements right. Of the seven million households with dependent children in Great Britain, around 2.4 million have a living non-resident parent. The CSA already handles around 1.5 million such cases – involving over two million children – but there are clear and well-documented issues around the current system.’



But although the likes of the Law Society and Resolution have put in lengthy and detailed submissions over how the nitty-gritty of the situation should be changed, they are singing from the same hymn sheet when it comes to the basics – that those running the show should simply take a sensible approach. They maintain that courts should be allowed to make decisions on child maintenance, and that stringent time limits should be put into play and enforced when it comes to making payments.



The Law Society is particularly concerned about regulations that see the CSA step in where the couple has already reached agreement on child support payments. ‘The Law Society considers that this was a most unfortunate and counter-productive amendment, which has significantly reduced the ability of parties to reach for their own arrangements,’ says its policy on CSA reform, which was sent to Sir David (see 2006 Gazette, 6 July, 8). ‘It has significantly reduced agreements whereby, for example, the party with the children will agree to a clean break.’



Ms Blacklaws insists: ‘Divorcing couples need to have the flexibility to make their own decisions about child maintenance. The new CSA regulations don’t allow for this, going against every other government policy of encouraging parents to make their own decisions about their children.



‘If parents can’t agree, we want to see child maintenance cases being dealt with by the family court, as it is usually only one piece of the financial jigsaw. The trained and experienced judges dealing with these cases have the whole financial picture so they can make fairer, informed decisions that reflect children’s best interests.’



Mr Greensmith agrees with Chancery Lane, saying family law solicitors witness the ‘horrific outcome’ of CSA decisions on a daily basis. ‘What we need is a formula for the calculation of CSA payments that can be incorporated into court orders, so that when it is dealing with the assets it can consider child maintenance as well,’ he insists, adding that he would like to see the CSA becoming more focused on the welfare of the children involved rather than the finances. He is particularly concerned about payments being based on the number of nights a child resides with the parent. Resolution argues that this makes little difference to the parties in terms of money but makes the child into a ‘weapon in a financial fight between parents’.



But Ms Lloyd Platt predicts a hard job ahead for Sir David. ‘This is a bureaucratic nightmare,’ she warns, maintaining that the way forward is to have special courts created for the calculation and enforcement of maintenance, considering that splitting the finance decisions between courts and the CSA has caused nothing but confusion and red tape. She adds: ‘Two separate entities dealing with maintenance only causes extra stress for the couple involved.’



Peter Watson-Lee, a former chairman of the Law Society’s family law committee, agrees that the courts should be put back in charge of the overall financial fall-out of divorce and separation. ‘Where cases are going before the courts, they should have the power to look at child maintenance at the same time, rather than just considering the mother‘s maintenance and finances,’ he argues, echoing the Law Society’s policy.



Like Ms Lloyd Platt, he is also frustrated by delays and backlogs in the current system. Mr Watson-Lee says he has seen ‘very wealthy’ partners play the system to delay or ultimately cut payments – although he has also seen fathers suffer. ‘The dad might not pay any maintenance for six months, and then payments are backdated and they are suddenly landed with a £10,000 bill,’ he explains.



‘The CSA is so behind now,’ he adds. ‘If you’ve got a mother with children and a seriously destructive dad, he just says, “Take me to the CSA then”, because he knows it will take nine months for them even to calculate maintenance. It’s terrible to see some mothers end up on benefits – it’s the whole injustice of the situation.’



Mr Greensmith agrees that there is currently little justice in the system, but he is optimistic that if the government listens to solicitors at the coal-face, the CSA can pull itself out of the hole it is in. He disputes the idea that the CSA should be abolished altogether. ‘The agency has a valid role – it’s the way it is administered that is the problem,’ he says.



Paula Rohan is a freelance journalist