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Grand Committee
Wednesday, 20 February 2008.
The Committee met at quarter to four.
[The Deputy Chairman of Committees (Lord Colwyn) in the Chair.]
Child Maintenance and Other Payments Bill
(Fifth Day)
Clause 33 [Registered Maintenance Agreements: Scotland]:
Lord Kirkwood of Kirkhope moved Amendment No. 192:
The noble Lord said: The amendment is bracketed together with Amendment No. 193. I confess and apologise that the amendments do not even deserve the definition or description of “probing amendments”; they are random deletions. I knew in my heart that something was wrong with Clause 33, but I could not work it out. I therefore just took out some text to remind me that something was to be done about it.
I hope that the Minister will reflect on what is still a cause for concern north of the border. I acknowledge that Clause 33 is a bona fide attempt to accommodate minutes of agreement into the Bill system, but a minute of agreement is fundamentally different from maintenance orders, which are a device used in the Scottish jurisdiction and the Scottish courts. I had recourse to them when, in a previous incarnation, I was a family solicitor in south-east Scotland. They are quintessentially different because they are bilateral; they require no one’s interference and input other than that of the two parties involved. That is different from a court order, which is imposed. There may be an argument; there may be a debate; there may be a consensus sought and achieved in the arrival at a maintenance or court order, but it is ultimately handed down to the parties by the courts. A minute of agreement as currently practised north of the border is quintessentially different also because it is summarily enforceable. If we had minutes of agreement throughout the rest of the United Kingdom, abolishing Section 6 of the Child Support Act 1991, as the legislation does, may be made easier to track and stay on top of.
We need to think more clearly in Clause 33 about the difference and why there is still friction between the child support and maintenance system and the family law system in the courts in Scotland. That is demonstrated by reference to two cases, of which the Minister will have been made well aware, I am sure. Resolution, Ms Kim Fellowes and her confederates north and south of the border will have made him aware that in the Isles case—commissioner’s case No. CSCS/5/97 1999, in Family Law Reports 37—a decision was handed down by the commissioner where he deemed that an extract of a minute of
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- “no decision about the competence of an Outer House judge to overrule a decision of the Social Security Commissioner”,
was in play in his consideration of that case. He was careful not to get himself involved in trying to overrule the commissioner in the Isles case; he could not, anyway. The only court that is competent to do that in Scotland is the Inner House of the Court of Session. It would need to be a Paul McCartney case to get to the level where, unless you were not in your right mind, you would take a decision of that kind to Inner Court of Session jurisdiction to try to get the decision taken in the Isles case overturned.
This is difficult territory and, with Clause 33, the Government have been genuinely trying to reconcile it in a way that makes sense. It is above my pay grade by a mile. All I can say is that some people north of the border in the Law Society of Scotland are looking carefully at this. I think they would like a minute of agreement registered in the Books of Council and Session and the sheriff court books to be removed from the maintenance orders listed in Section 8 of the 2000 Act—actually, it is not listed there; it was added by virtue of the Isles decision. Minutes of agreement should be considered as sui generis law in Scotland, so that in the longer term they can be allowed to continue to play a part, unfettered and unthreatened by the CSA or CMEC provisions in the Act. That may be a policy decision with implications that need to be thought through carefully.
In spite of people’s best endeavours in trying to address the problem, it still is not quite right. That is the advice that I am getting from people who know far more about this than I do north of the border. The sensible thing might be for me to act as a broker and get the specialists who are making the arguments to me to talk to the specialists in the Minister’s office and the Bill team, to see whether we can make some reconciliation so that the two systems work more sweetly together than at the moment.
The point has been made to me that provisions for non-resident parents being self-employed—a difficult category—are particularly conducive to a solution through a minute of agreement in Scotland. It is a long time since I practised law, but it has also been pointed out to me that there is now a widespread
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We are coming on to clauses that talk about pilot projects. This is straight off the top of my head, but CMEC might consider as an early pilot project developing the use of minutes of agreement that obtain north of the border in a way that has not been foreseen to date. That may be something for the future on which we need further discussion.
My purpose in tabling these rather crude, slash-and-burn amendments—they make no sense on their own—was to raise a second-order but nevertheless important set of circumstances, on which we still have some development work to do if we are to be safe in the knowledge that, when the Bill is enacted, it will continue to serve the legal profession and its clients north of the border in the way that we hope and expect in future. I beg to move.
Lord Skelmersdale: Although Clause 33 is a peculiarly Scottish clause, the fact that a minute of agreement that has been in force for fewer than 12 months will exclude a person in Scotland from making an application for a maintenance calculation reflects on the discussion that we had earlier, on whether one year was the correct time in which to have the ability to overturn a court’s decision. To that extent, it applies equally to England as to Scotland.
I do not want to repeat the arguments that I adduced last time, but it has been put to me since that one way to solve this problem would be that once a court has become active in a divorce case, for example, any alteration of that court’s decision should not go to CMEC at all but continue with the court. Another way in which to solve it, which was the one that I adduced earlier, was to have a much longer period than the one year stated much earlier in the Bill, which Clause 33 reinforces. I am beginning to come round to the second solution rather than the first.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord McKenzie of Luton): I thank the noble Lord, Lord Kirkwood, for the amendment, which led to rather a broad discussion on the subject. I start by clarifying that Clause 33 is there to clarify that minutes of agreement for periodical child maintenance made on or after 3 March 2003 and registered in the Books of Council and Session or the sheriff court books are to have the same status as maintenance orders made on or after 3 March 2003 under Sections 4(10) and 7(10) of the Child Support Act 1991. In prior discussion there was some confusion over whether that was the case. The noble Lord said that court orders were imposed, but court orders for child maintenance are not imposed, because they are consent orders and represent agreement between the parents. That is the parallel that we seek to identify here.
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As we discussed in a pervious sitting, the existing 12-month rule applies when parents have a registered minute of agreement made on or after 3 March 2003. The 12-month rule has two purposes. When agreement between parents breaks down, it provides a swift and readily available route into the commission so that children are not left for considerable periods with either no maintenance or inadequate arrangements. It also encourages agreements that contain levels of child maintenance broadly consistent with the amount calculated under the statutory scheme. We do not wish to restrict any effective maintenance arrangements to any particular period. However, if things go wrong, or parents decide that another type of arrangement would be more suitable for their children, we believe that they need a readily available route into the commission. That is why we do not think that the first proposition of the noble Lord, Lord Skelmersdale, about keeping it in the court is the right way. Children must not be left for periods of time with either no maintenance or inadequate arrangements, nor should we lock parents into agreements that are no longer working.
It is true that registered minutes of agreement have many advantages but, if circumstances change and the original agreement needs adjustment, difficulties may arise. Some of those agreements can have change embedded in them, although that is not the case in every situation. If parents cannot agree, there are limited circumstances in which they may apply to the court to vary the financial arrangements and, in the case of parents who were never married or in a civil partnership, the opportunity for variation is often severely restricted. The 12-month rule gives time for agreements to bed in and work, which is why we think it the right period, but allows intervention by the commission to keep maintenance flowing to children if the agreement breaks down, and therefore puts parents with registered minutes of agreement on the same footing as any other separated parents.
I hope that that has dealt with the kernel of the proposition and will help the noble Lord to withdraw his amendment. I shall reflect on some of the wider points that he raised and perhaps return to the matter in due course.
4 pm
Lord Kirkwood of Kirkhope: I have two things to say about that. Circumstances in Scotland are different in a number of respects. One of the most fundamental is that the Scottish courts, unlike the English, are accustomed to doing maintenance calculations—at least they did in my day. I may be talking slightly out of turn because it is a long time since I practised in the courts. The family law situation in Scotland is a much smaller jurisdiction anyway—there is a much smaller group of practitioners and the scale is also different, although I understand that court orders are administered in the same way in terms of how the court handles them.
My main plea is to have further discussions about how registered maintenance agreements are conducted. If that could happen between now and Report I would happily settle for that. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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[Amendments Nos. 193 to 195 not moved.]
Clause 35 [Additional special case]:
Lord Skelmersdale moved Amendment No. 196:
“( ) The Secretary of State may by regulations make provision for the costs incurred by both parents in caring for the child or children.”
The noble Lord said: This is a probing amendment which I hope the Minister will at least consider between now and the next stage of the Bill. Again, it is tempting to return to earlier discussions or even make a Second Reading speech, but I shall resist that temptation. However, it is only fair to put on the record that, during the long discussions that we had on the subject of sanctions, I came to the conclusion that it is probably a mistake to have “enforcement” in the title of the commission. I therefore give notice that on Report I will move an amendment to that effect.
Having got that off my chest, I say that this amendment proposes the obverse to sanctions and is designed to probe the shared parenting agreements that are not altered in any way by the Bill as far as I can see, although Clause 33 allows for a new “special case”. What happens now is that maintenance is decreased by one-seventh for each day up to three that the child stays with the non-resident parent and this raises to half for four days or more—that is a précis of the situation.
The problem is that these provisions encourage parents to associate the level of child maintenance payments with the amount of “staying contact”—for want of a better phrase—that a child has with the other parent. These parents are placed in immediate financial conflict with each other, with the parent with care possibly attempting to minimise overnight contact to maximise maintenance payments, and the non-resident parent seeking to maximise contact to minimise the child support maintenance payable. As such, there is a complete manipulation of what should be considered to be the natural contact arrangements between a parent and a child.
In court cases, contact applications are often less about what contact should or should not take place, but more about the impact of child maintenance payment responsibilities on either parent. The courts have always strongly, and quite rightly, discouraged the association of child maintenance payments with contact. The present shared-care provisions completely undermine that principle and encourage both mothers and fathers to connect these two issues. It is inconsistent to state on one hand that a parent’s obligation to maintain a child is not dependent on whether they have contact, but on the other hand to provide in legislation a provision that encourages parents to limit the amount of contact a non-resident parent has with the child in order to maintain a certain level of financial support.
The children—it is them that we are all concerned about—are caught in the middle of the financial conflict between their parents and often their future relationship
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Baroness Hollis of Heigham: The noble Lord, Lord Skelmersdale, has raised an issue. I agree with him that in some cases parents may seek to maximise or minimise contact in order to affect their maintenance payments, and some non-resident fathers would be concerned that by seeing the child only during the day, when they may incur the cost of going to McDonald’s, the zoo or whatever, they would get no abatement of their maintenance because the child is not staying overnight. I accept that in some cases there can be a problem, but the noble Lord’s solution may be worse than the current situation. If we wish to encourage contact, it is undoubtedly right that as far as possible the child or children stay with the non-resident parent. Conventionally, that may be every other weekend and part of the school holidays. That means that the non-resident parent has to have enough space, the extra bedroom, the bunk beds, the change of clothes, the additional food, the pizzas and whatever that he will need to look after those children. The costs are incurred whether the children effectively stay four nights a week or every other weekend. There is an ongoing cost. Therefore it seemed right to abate some of the maintenance that he would otherwise pay, because he is incurring continuous costs however many nights the children stay. The question is then about what the appropriate abatement is, given that some of the money that he would otherwise pay to the parent with care for the maintenance of the child should be abated because he is incurring additional costs, even though her costs continue to flow. There is not a direct trade-off that by him spending money, she saves it; they both incur costs.
It was thought inappropriate to go for the day, because there were the questions of when it started and finished and whether we started having bills of fare or tick-offs for cafeteria lunches as opposed to a picnic in the park. We went for overnight accommodation. My fear is that if we go back, as the noble Lord suggests, to a higher hurdle—104 nights a year or even higher—that will reduce the amount of contact the non-resident father is willing to engage in. From experience, every other weekend plus some of the holidays captures that 52- to 104-night window. If the noble Lord is saying that the non-resident parent must have the equivalent of at least 104 nights—two nights a week through the year—we will be asking many non-resident parents, often not in affluent circumstances, to incur real costs in having an extra bedroom in the flat, extra furnishings and so on with
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Lord McKenzie of Luton: I thank the noble Lord, Lord Skelmersdale, for the amendment. The clause to which he attached it focuses on something slightly different from the issue of shared care arrangements. I shall deal with that first and then try to pick up some of the points made about shared care.
Currently, there are no specific measures to cater for cases where there is split care. Where both the mother and father apply for maintenance, the Child Support Agency makes two maintenance calculations, and maintenance is collected from both parents. That is a situation in which one parent has one or more of the children but the other parent also has one or more of the children, so they are both parents with care and non-resident parents. At the moment two calculations are done. This is clearly not the best use of resources. It also leads to complaints in cases where the agency struggles to collect maintenance from one parent, particularly if they are the one with the higher liability.
Clause 35 will allow for the offsetting of maintenance liabilities between the two parents, so that only the parent with the highest liability will actually make a payment. This will be a more efficient use of resources as there will be only one maintenance liability to collect. It will also make more sense to the parents.
This measure is part of a package designed to simplify the assessment process in the future scheme. However, if the costs incurred by both parents in caring for their children were to be taken into account in the maintenance liability—whether there was split care as provided for by this clause or otherwise—that would lead to more complexity, which would contradict what we are trying to achieve. The process of working out maintenance is not designed to take account of the individual costs of raising children. It would be extremely difficult to arrive at such a figure which takes account of individual circumstances; for example, differing levels of income.
Amendment No. 196 would also create scope for disputes between parents. For example, they might not agree on the amount of money the other parent said they were spending on the child. They would also have to provide evidence of such costs, and experience has shown the difficulties currently experienced by parents when trying to agree what level of shared care is being carried out.
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I can return to the issue of shared care, which we debated in a previous sitting. My noble friend Lady Hollis is right that the formula that we are taking forward is the current arrangement. There are some administrative changes to it to make it less likely that there will be a whole flow of changes of circumstances which have to be taken into account. We arrived at the conclusion by having extensive discussions with stakeholders about what alternatives there might be as regards reflecting shared care. Basically there was no consensus, but a whole range of views. On balance, we thought that there was no imperative to change the current arrangements, which is why we are where we are.
My noble friend is again correct—it is right to reflect that there are clearly some costs and provision of facilities involved if shared care is to be encouraged. I do not think raising the threshold is the right way to proceed. Administratively, what we are doing is trying to get parents up front to agree the band of shared care that would operate, so that that can be built in early into an assessment. One of the problems with the current system is that disputes over levels of shared care and constant change, particularly around some margins, prevent early or speedy assessment and give rise to a good deal of disruptive and continual change to assessments. Administratively, we are trying to move away from that.
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