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Baroness Hollis of Heigham: Clause 2 and this group of amendments all relate to the relative jurisdictions of the Child Support Agency and the courts in matters of child maintenance. The noble Baroness, Lady Buscombe, has spelt out very clearly and lucidly where the concerns of the Opposition Bench lie.
As noble Lords will recall, a central feature of the child support scheme introduced by the party opposite was a deliberate move away from having questions of child maintenance settled by lawyers and the courts. Provisions in the Child Support Act 1991, which we supported, provided a straightforward administrative mechanism for setting levels of child maintenance and, where required, for collecting maintenance payments on behalf of the children concerned.
The legislation introduced by the Conservative government clearly envisaged a time when all child support matters were settled by the agency. It was intended that during a transitional period only--a period expected to last for some three years--the courts would be able to vary existing court orders for child maintenance and to make new orders based on agreements between the parents concerned. During this period, parents who had such maintenance arrangements would be prevented from coming to the agency for a maintenance assessment unless benefit was claimed for the children. In other words, it was expected to be a transitional period only. Thereafter the CSA writ would run and there would be only one assessment of child maintenance--that made by the agency and given in any court settlement. That was the previous government's proposal. It went far beyond anything that we are proposing.
Unfortunately, the Conservatives found that their child support scheme was not working as well as they had hoped. So, in 1995, they deferred the take on of court cases indefinitely. Nevertheless, they were careful to take a delegated power that would enable the agency to take over such cases in the future.
We have given a high priority to reforming the child support scheme to make it work effectively for children and their parents. Our initial view, as set out in the Green Paper, echoed that of the Conservative Government's position--that there was no role for the courts in a reformed child support scheme, for all the reasons which persuaded us that the Conservative's policy in this area was correct at the time of the Act. We expected to tread the path of the previous administration. However, in the course of
Some sought, as does the noble Baroness in moving the amendment, to give more power to the courts. We were encouraged to consider taking powers to require the courts to operate the child support rates, although retaining a power to depart from those rates if the court saw fit. We listened to the advice of a broad range of people within the law, including judges, lawyers, solicitors, barristers, court welfare officers, magistrates' clerks and the like. They had very different views but some would have called on us to, so to speak, impose the CSA settlement on the courts.
We concluded that neither that extreme nor the total removal of court jurisdiction was entirely satisfactory. One extreme was to let the courts have an entirely separate jurisdiction, which is what the noble Baroness seemed to be proposing, and the other was to allow the courts no jurisdiction whatever by imposing the CSA settlement. We thought that neither of those paths was appropriate. Removing all power from the courts to set child maintenance would deny the parents the right to agree to depart from the child support rates where benefit is not involved and have that agreement registered in court, perhaps along with other financial arrangements. The other extreme, requiring the courts to apply a simple system of rates, appeared to conflict with judicial independence, which is at the heart of the court process, and it was not clear in practice that the courts would be able to resist varying the rates in a wide range of circumstances.
We did not wish to follow either extreme position--to impose CSA rates on the courts, though possibly with some flexibility, or to place child maintenance entirely at the discretion of the courts where there were private cases, partly because we feared reproducing the inequities and lottery which the CSA in 1991 was designed to overcome. We are proposing a third way. We believe that it is more flexible and that it shares the values, which the noble Baroness offered, of mediation and negotiation while preventing abuse of that system. Very simply, no private cases need ever come to the CSA. That includes WFTC cases. Therefore, around 55 per cent of all cases would potentially be private cases and need never come to the CSA. Only those cases where the parent with care is on a prescribed benefit--normally, income support--would come to the CSA. Very many of those cases will not go to the courts because people are not getting divorced or, if they are getting divorced, no substantial property is involved and therefore there is not a question of the courts adjusting child support against spousal maintenance and the like. However, if the private case, which is a court case, comes to the CSA, it will do so only because those involved are seriously dissatisfied with court arrangements.
When will that happen? It will happen if either side feel themselves pressured at the point of making that settlement into too high or too low a settlement compared with the benchmark of the Child Support Agency's figures, which are now widely known by all lawyers. They could come to the CSA only after 12 months--we are not suggesting that this would be knee-jerk--and even then, to encourage negotiation and mediation, which is what we want, they have to give the other side two months' notice to allow opportunity for further negotiation and mediation.
Either side will come to the CSA possibly because he or she is dissatisfied and feels pressured at the time or alternatively if payments that are supposed to be made are not being made reliably and possibly the parent with care does not want to keep revisiting the courts to obtain the money but prefers to put the matter into the hands of the Child Support Agency.
What is the consequence of saying that either party may come to the CSA if he or she is aggrieved about the settlement figure or about its effective collection? I suggest that the consequence will be that, because the lawyers on both sides know that an aggrieved client could come to the CSA, if he or she departs very far from the CSA benchmark, and have CSA rates imposed, those same lawyers will strongly encourage their clients to settle at the CSA rate. In other words, they will fix court maintenance in the shadow of the CSA. We shall not impose it on them, but we expect lawyers to give advice to clients that this is in their best interest.
However, the important point is that this arrangement still leaves all parties free when they wish to go above or below that child support figure. For example, a father might wish to go above the CSA figure because there is a disabled child and he feels it right that he should provide more; or he may feel, and she may agree, that it is reasonable for him to go below the CSA figure because he is picking up boarding school fees, including tuition fees, as well as maintenance.
If all agree, that is fine. By having that element of flexibility but nonetheless expecting lawyers to advise their clients to stay at the CSA benchmark figure unless there are good grounds, by consent, to go above or below it, it still allows other elements in the settlement referred to by the noble Baroness--for example, spousal maintenance, pensions, property, investments and so on--to be tailored to the particular financial circumstances of that family. There are many elements in the settlement of the kinds of couples referred to by the noble Baroness which can take the strain of discretionary judgment while the CSA figure remains the benchmark figure for child maintenance and child support.
The reason why it is important that there should be a common rate between the CSA and the courts--in other words, the same figure--is that so many parents with care come back on to benefits. To put the problem into perspective, we have a caseload of about 1.2 million, about half of whom will be private clients. Each quarter, around 100,000 lone parents move on to
That is why we have decided, following extensive advice and consultation, not to go for either of the two extremes: to impose a CSA settlement on the courts willy-nilly or alternatively to let the courts do willy-nilly what they think fit. Instead, we have decided that the courts may make and vary child maintenance orders, but because there is the fallback of coming to the CSA if there is an aggrieved client, they will do so in the shadow of the CSA rates. If the agreement breaks down, the ability of either parent to come to the CSA will be an important guarantee that children will receive proper levels of maintenance.
This provision is not retrospective, which was one of the problems of the 1991 Act. It will apply only to new cases. Clause 2 gives effect to our policy in this area and makes changes to the child support scheme so that more separated parents can apply for child support. It will allow parents who have a court order for maintenance which has been placed for a year to apply to the CSA for child support calculation instead. But as I said, it also protects private clients with existing court orders.
Parents with maintenance orders in force at the time that the reforms are introduced and those with written maintenance agreements made before April 1993 will, as now, use the courts for enforcement and variation of child maintenance liability. Current arrangements whereby a parent with care on benefit can have an existing court order overturned by a child support assessment will remain unchanged. This will ensure that a two-tier system between the courts and the CSA does not develop. We expect that this will encourage courts to make consent orders in the shadow of the simple and predictable child support rates, because either parent has the option of turning to the CSA after one year and giving two months' notice for further negotiation or mediation, if that is appropriate. We have a one-year waiting period and a two-month cooling-off period.
I hope that, with that explanation on clause stand part, the noble Baroness understands what we seek to do. We seek to avoid two extremes so that where there is consent private arrangements will, as now, continue with good grace and negotiation or mediation. This is, as it were, a default rate. Either party and his or her lawyers will be aware that the other can come back if there is dissatisfaction. As a result, there is a fixed element in what may otherwise be a somewhat more complicated package. We believe that this is the most decent means to ensure that there is reliable maintenance at a consistent level without introducing
I turn to Amendments Nos. 29 to 35 which seek to amend Clause 2. I am a little surprised that the Conservative Members of the Committee have tabled these amendments. While I am sure that they are probing amendments, I believe that they will increase uncertainty. It is true that Amendment No. 35 seeks to address one problem that has bedevilled court maintenance in the past: the risk that children will suffer because parents with care are forced to accept lower maintenance under duress. There is an amendment to that effect. I worry about this. I do not see how the CSA can decide whether a parent with care is under duress except on the word of the parent in question. I do not see how the CSA can decide that a court proceeding has taken place under duress. The CSA can properly decide the appropriate maintenance rate given the number of children and the income, but it should not be concerned with concepts of duress and improper influence during a court procedure to which it has not been a party. I share the concern of the noble Baroness, which I believe to be an honourable one, but I believe that this is a dangerous road to follow. I do not see how we can do it.
Amendments Nos. 36 to 39 would, if accepted, give back to the courts the power to set levels of child maintenance in any case where they made other financial arrangements. I hope I have made the point that those other arrangements, such as property or spousal maintenance, can take the strain. These amendments are inconsistent with what we seek to do.
I hope that, on reflection, the noble Baroness agrees that we have tried to bring together the need to recognise the discretion involved in private arrangements and not undermine the role of lawyers in trying to look after the best interests of the parties and the children, without at the same time deserting what may be the best interests of children by putting in the floor of the child support rate which both parties know is the fall-back if either is dissatisfied. Essentially, we are setting up a Mexican stand-off (if I may call it that) based on the rate of child support, in the knowledge that the other elements in the formula--spousal maintenance, property, pensions and the like--can take the strain of discretionary ones. We believe that, broadly speaking, under this arrangement there is a common standard of maintenance right across all child support cases, the CSA and courts alike, but where both parties in private cases have good reason to go above or below it, and agree that it is in their best interests and those of the child to do so, the CSA will not stand in their way.
I hope that with that slightly long explanation of what we seek to do--I thought it important to put it on record--the noble Baroness is able to withdraw her amendment and endorse what we seek to do. We believe that in this very difficult situation, in which principles pull in different directions, we have found a
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