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Earl Russell: My Lords, the Minister has not fallen into what he described as the trap that I have set him but he has fallen into the one that he set himself. He has fallen into the trap into which all Administrations have fallen since records began -of believing that things are as they appear when Ministers read their papers in their offices. They are not.

If the formula was working as the Minister thinks that it is, his argument would be perfectly reasonable. If there were enough basic income left over to meet all the obligations, or even to create a reasonable chance that, with care, one might meet them, what the Minister says would be perfectly accurate, but he simply is not aware of how small is the proportion of their income over which most people can exercise choice. If the Minister had seen as many payslips and statements arising from the Act as I have from reading my post-bag, he would know perfectly well that for a great many people the reasoning that he has put forward—sound though it might appear in principle and in the abstract—simply will not work because there is not enough money. Governments ought to know what it means not to have enough money - it happens to them often enough. It happens to other people as well.

If one had proposed to increase taxation by the amount that some people's costs have been increased by the increase in child maintenance, those on the Government Benches would have created such an outcry that you would have heard it from here to kingdom come. They really do not know what is going on out there. Some day I hope that they will know. I hope that a certain amount of constituency casework might bring it home to them. I shall not do it tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 36:


Before Clause 18, insert the following new clause:

("Day to day care: amendment of regulation 1 of the Child Support Regulations 1992

.—(1) The definition of "day to day care" contained in regulation 1(2) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (as amended) shall be amended as follows:
(2) For "104 nights", or each occasion where that expression occurs, there shall be substituted "52 nights".

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(3) At the end of the definition there shall be inserted—
"(iii) a person shall be taken to have care of a child where he would have actual care if a court order which is in force were being properly complied with by another person, and a person shall be treated as not having care of a child where she has actual care in consequence of her failure properly to comply with a court order; and for this purpose a court order shall be regarded as properly complied with by a person only if she makes every reasonable effort to give effect to its terms and purposes.").

The noble Earl said: My Lords, this amendment deals with what has become known as the 104 nights rule. It provides that care is to be treated as shared if the child spends 104 nights a year in the care of the allegedly absent parent. That is recognised as creating a situation in which the absent parent becomes, for the time being, a parent with care and the formula is adjusted accordingly.

There is one small defect in the wording of the amendment. If by any remarkable chance the Minister feels inclined to accept it, we shall have to tidy it up later, but since that is an unlikely eventuality, I thought it better not to withdraw it and bring it back on Third Reading in a redrafted form since the principle can perfectly well be debated now.

The insistence in the Act that only one parent can be treated as having care while the other is deemed to be "absent" runs against many recent developments in family law which have tended towards thinking in terms of shared residence and of both parents as being continually involved. When it can work with reasonable harmony - of course, it cannot always - that is very much in the interests of the children and is to be encouraged. The insistence that only one parent is to be treated as having care tends to go against the pressure that the law has rightly been exercising in other fields to try to push the parents to recognise a continuing sharing of care even after divorce. You have to go a certain amount against the grain to get that through to divorced parents. But the legislation pushes them back towards an attitude into which many of them fall too easily anyway—of thinking of only one parent as having care.

It was, I think, the original intention of the rule as now drafted that the 104 nights represented every weekend of the year, so that any care less than every weekend of the year was to be ignored. In Committee the noble Lord, Lord Kilbracken, made the important point that for practical purposes, if you have to be at school on a Monday morning, the weekend is one night even if it may be two days. So in fact every weekend of the year, which was the Government's original intention as I understand it, is represented by 52 nights, not 104.

There is some case for arguing that the amendment is not only good in itself; it is a more accurate representation of the Government's original intention than the bureaucratic, as distinct from imaginative, drafting of the l991 Act succeeded in achieving on its own account. This deserves consideration. There will be more heard of it until something is done about it. At some time the conflict between this and the development of family law will need to be resolved. I beg to move.

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Lord Kilbracken: My Lords, I supported the noble Earl when he put down a comparable amendment in Committee and I have added my name to the new version he has put down today. First, I agree with him very much that it is considered more and more important in our courts that care should be shared by both parents, although of course to talk about care and control nowadays is now no longer appropriate since the Children Act when care and control ceased to exist, and instead we talk about residence orders and access orders. So to talk about a parent with care is inappropriate.

I have objected again and again to the use of the phrase "absent father". Without going into that again, I intend to speak, and always will speak, about the "so-called absent father".

Since Committee I have tried to look with more care at this legislation. I have found out, and realise fully, how extremely complicated it is. I agreed completely with what the noble and learned Lord, Lord Simon, was saying about the complexity of the formulae that are used, which really are incomprehensible without the assistance of an accountant and a solicitor, preferably armed with a very sophisticated computer. It seems to me most unfortunate that in legislation of this kind it should be impossible for those who are personally involved (the father and the mother) to work out either what sums should be payable under the Child Support Act or a great many of the other details in this legislation.

The noble Earl has indicated that there is a slight flaw in our amendment, if I may use the first person plural, in that it refers to:

"For '104 nights', or each occasion where that expression occurs, there shall be substituted '52 nights'".

Unfortunately, on studying the legislation I could not find any occasion on which 104 nights occurred. The phrase instead is "two nights a week". So this should be amended on a later occasion by substituting:


    "For 'two nights' a week 'one night' a week";

that is, on average throughout the year.

What precisely, I ask, is the significance of these two days per week on average throughout the year. I had not fully realised what it meant. What I think I found, but I am sure the Minister will correct me if I am wrong, is that it is laid down in one of the schedules—for heaven's sake do not ask me which of them—that certain of the outgoings of the so-called absent father are claimable 100 per cent. by him as exempt income, but with certain other outgoings only a fraction of them is claimable. That is the same percentage as the percentage of nights a week spent on average over the year with the child. That is presumably because it is recognised that the more time a so-called absent father spends with his children the more compensation he deserves.

It is obvious that it can never happen that the child spends an average of more than three-and-a-half nights a week with his so-called absent father because if he did he would be spending exactly as much time with the father as with the mother. I do not believe that even the Government could then continue to refer to the father as

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being absent. But if the father did spend an average of three-and-a-half nights a week with his child then three-and-a-half sevenths, or 50 per cent., of these sums would be claimable. If he spent an average of two-and-a-half nights a week it would be two-and-a-half sevenths, or five fourteenths, and so on.

Under the Act as it exists at present, if the average number of nights spent by the father with the child is under two a week—if it is 1.9 a week, and decimal points are perfectly possible—no such sums are claimable as exempt income. This amendment would bring down that minimum figure from two nights a week to one night a week.

As I stated in Committee, I have an interest in the matter as the father of a young son from whose mother I am unhappily divorced. However, I have no financial interests because my matters have never come under the Child Support Act. I gave the example of my own case. I have very liberal access, by normal standards, to my young son. I spend more time with him than 90 per cent. of fathers in my position; it comes to 71 days a year, which is 19.5 per cent. of the days in the year. That is the equivalent of 1.365 nights a week.

Therefore, a father in my position spending so much time with his son would not be eligible for relief under the Act as it exists at present. However, under the amendment that I have tabled with the noble Earl he would be. Even in that case, the financial benefit to him would be only a small fraction of the extra costs to him of those 71 days with his son or daughter. That is probably, let us say, £700 a year. In my case it is usually much more, plus the fares between here and Ireland and my own fares to his mother's home and so on. At the same time, the mother makes considerable savings because for those 71 days she has no expenses in respect of him.

I ask the Minister once again: why should that not be taken into account? Why should the so-called absent father receive no compensation whatever for that? Why is it completely ignored?


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