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Michael Allum: Enforcement of Child Maintenance - Lessons from Abroad

Date:16 MAR 2012

The Child Support Agency (CSA) came into effect on 5 April 1993. Right from the outset there was widespread criticism from the media, Parliament, practicing lawyers and the judiciary about the effectiveness of the CSA. Frustrations were inflated in light of the comparative successes of similar agencies abroad. Since its conception the CSA has consistently trailed in the wake of many foreign agencies. So as the CSA prepares to enter its twentieth year, is it not time to start learning some lessons from abroad?   

In fact mistakes were being made before the 1991 Act had even been passed. Just 18 months after Mrs Thatcher first declared that "no father should be able to escape from his responsibility" the legislation was on the statute books. In the intervening months the White Paper's consultation period lasted just six weeks, no summary of the responses was ever published and the decision was taken not to issue a Green Paper. In contrast, in Australia reports were being produced recommending the introduction of a child support agency as early as 1980. Furthermore, in March 1987 the Australian federal government announced its decision to introduce a child support agency in two stages.

As early as 1994 Mr Justice Ward accused the formula for the calculation of child maintenance of consisting of a "series of mathematically obtuse calculations in innumerable unintelligible schedules to the Act". Indeed as originally enacted the parent with care was required to submit over 100 pieces of information before a maintenance calculation could be made! The response took 9 years and it was therefore not until 2003 that a clearer formula was introduced. Other countries adopted this approach from the outset. For example, Australia adopted a formula which deducted a percentage (ranging from 18% for one child to 36% for five) of the non resident parent's income (minus an ‘exempted income amount') when the second stage came into force back in 1989.

While Deductions from Earnings Orders have long been available in England and Wales, until 2008 internal guidance suggested that they should only be considered when other methods of enforcement had proven ineffective. This was in stark contrast to the position in Australia and the US. In Australia, the agency is required to collect child maintenance by a deduction from the non resident parent's salary if it is practicable to do so. Further, in the US automatic deduction from salary is the standard method of collecting child support. Only since 2008 has the Deduction from Earnings Order been the basic method of payment in England and Wales.

Disqualification of the right to hold a passport due to child support arrears has been available in the US since 1996. Indeed, in the fiscal year 2000, more than US$6.5 million in child support payments were collected through this means - even more impressive when one bears in mind that a significant proportion of US citizens do not own a passport. Since 2008 the Child Maintenance and Enforcement Commission (CMEC) has had the power to withdraw passports from defaulting non resident parents - a move certainly welcomed by parents with care who believe their former partners lifestyle to be inconsistent with their maintenance calculation. It is believed, coincidently, that it is rarely invoked.

The latest Report from the National Audit Office (published 29 February 2012) records that CMEC incurs a cost of 56 pence for every £1 collected from non resident parents (this in itself is a dramatic reduction - the cost to the CSA was previously more than the sums actually being recovered!). Australia spends just 35 pence. Despite numerous reports and legislative intervention it is clear we still have a lot to learn - one can only hope it does not come too late for the next generation of single parents and their children.

Michael Allum is a Trainee Solicitor at The International Family Law Group LLP (www.iflg.uk.com). He can be contacted on michael.allum@iflg.uk.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.