History and Context
The first legal provision, in the first half of the eighteenth century, for the enforceable financial support of children related to "bastard" children, since divorce was generally unavailable. The provisions were applied in the context of the Poor Laws, dating from 1598, which stipulated that the parishes were to relieve destitute people, and could then seek reimbursement from their relatives. The 1601 Acte for the Reliefe of the Poore made the mothers, fathers, grandparents, and children of a poor person legally obliged to "relieve and maintain" them, under threat of a quite large fine. In the same way, men were obliged to support their illegitimate children or face gaol. A mother applying to the parish for relief was obliged to name the father; the parish would then support her and the child(ren) and pursue the father for reimbursement – which, it seems, was most often unsuccessful.
In the mid nineteenth century, shortly after the introduction of civil marriages, bastardry proceedings became a matter for the petty courts, and a woman could seek maintenance from the father for herself and the child, regardless of whether she was in receipt of poor relief. Divorce was still largely unavailable for all but the upper classes. When it became more widely available and used (especially after WWI), custody and maintenance were awarded through the courts, but there was little state enforcement available. The Maintenance Orders Act of 1958 allowed the attachment of earnings. In 1974, the Report of the Committee for One-Parent Families (the Finer Report) recommended the establishment of an agency to administer child maintenance arrangements, but legislation for the creation of the CSA was not established until 1991, and the Agency only began operation in 1993. The scheme that it was set up to administer was excessively complex, and results were poor. The White Paper on Child Support,
Children’s Rights and Parents’ Responsibilities, published in July 1999, proposed a new scheme, detailed below, which was implemented in 2003.
The UK spends a similar amount to Australia (per capita) on family services and benefits. Universal child benefits are significant, and are greater than in Australia, though this difference is becoming less marked, due to recent increases to Australian FTB. There is also means-tested social assistance available to poorer families. Government payments to sole parents are roughly equivalent to those paid in Australia. Lone parents also get a higher rate of the Working Tax Credit, which is designed to reduce EMTRs for people moving from benefits to work, and may also receive a one-off payment of up to £1000 (all figures in British pounds, £1=~A$2.37) if they move from benefits to work.
Carer parents in receipt of various social security pensions (not including child benefit) only receive the first £10 of child support paid, but receive their income support "gross" of maintenance, that is, the benefit payment takes no account of the maintenance paid by the non-resident parent to the Child Support Agency. Other carers receive all support paid. There is no clawback from Child Tax Credit, which begins to phase out at a family income of £15,000, being available in part up to incomes of £60,000.
Basis of scheme
The UK scheme is based on the principles that children have a right to the care and support of their parents, that parents have a responsibility to provide this, and that government expenditure on meeting the needs of children should be minimised. The scheme is intended to contribute to the Department of Work and Pensions’ objective of ending child poverty, and aims to be simple and fair.
Child support liability is in part determined by the amount of time that each parent spends with the child, but there is no legal link between the payment of or liability for child support and compliance with contact orders. That is, neither contact nor payments can legally be withheld in an attempt to make the other parent comply with orders or as a penalty for non-compliance.
Child support is calculated on net payer income, at a rate of 15% for one child, 20% for two children, and 25% for three or more. These percentages only apply to payers earning £200pw or above, with assessable income capped at £2000pw (all figures are net). If the payer is living in a new family with children, be they biological or step-children, these same percentages are allocated to the support of the new children
first and this amount deducted from the payer’s income, and then the percentages are applied again to the remaining income to determine the child support liability. For payers earning between £100 and £200pw, the first £100 of net income are disregarded and the following percentages applied to the remaining amount: 25% for one child, 35% for two children, and 45% for three or more. These percentages are reduced if the payer is living in a new family with dependent children. For payers earning less than £100pw or on benefits, a flat rate of £5.40pw applies (2004 figure – this amount is indexed to CPI). This is waived only in exceptional circumstances, or if a payer who would be liable for this rate due to their reliance on benefits cares for the child for 52 nights a year or more.
Where care is shared, child support payable is reduced by 1/7 for each night of weekly shared care, that is, reduced by 1/7 for 52 to 103 nights per year, by 2/7 for 104 to 155 nights, by 3/7 for 156 to 174 nights, and by ½ for 175 or more nights. The amount payable is also reduced by £7pw for each child the non-resident parent looks after for more than 175 nights. The amount to be paid is not usually reduced below the minimum £5.40, unless the payer is on benefits.
Where a payer is liable for child support to two or more former families, the amount of child support is calculated according to the total number of children, and then divided amongst the families on a pro rata basis. For example a payer who earns £300pw net and has one child to one former partner (A) and two children to a second former partner (B), with no children in their current family, is liable to pay 25% of his net income, so £75, of which £25 goes to A and £50 goes to B.
The level of support is intended to be quite minimal, and not more than half the cost of raising a child. Hence, the payee’s income is not a factor in calculating liabilities. Payees can apply to a court for a ‘top-up’ order, where the basic child maintenance assessment is insufficient to cover school fees, extra costs incurred by children with disabilities, or because the non-resident parent has a high income. The allocation of assets in the divorce process can be taken into account in the calculation of child support liabilities. If the non-resident parent has substantial assets (apart from their home and business assets), this can also be taken into account, though income from savings and investments is not considered.
Departures from the formula may be made in special circumstances. These include:
- The payer has high costs related to seeing the child or children for whom maintenance is due (for example, travel costs)
- The payer has extra costs because a child who is living with them has a long-term illness or a disability
- The payer is still repaying a debt that they took on before separation from the parent with care, and that debt was for the benefit of the family or a member of the family
- Where the allocation of assets during separation was intended to provide support for the children
- Where the payer lives in a manner which belies their reported income.
Where the circumstances of a parent change (the non-resident parent’s net income must change by more than 5%), they can request that the original decision be superceded. This can be done by telephone or in writing. Supercession decisions are subject to the normal method of appeal.
If a party to a CSA decision feels that it is wrong, they must, in the first resort, dispute the decision with the CSA. The decision is revised, and the liability may be changed. If a party still disagrees with the decision, they can appeal to an independent tribunal. (If a party attempts to appeal without first applying for the decision to be revised, the Appeals Unit will ask a decisionmaker if the decision can be changed through the first dispute mechansim.) If the decision is still disputed (for a matter at law, rather than administrative reason – simple errors can be corrected by the tribunal upon request), parties can appeal to a Child Support Commissioner. Commissioners are independent of the CSA; they are barristers, solicitors or advocates of not less than ten years’ standing who are appointed by the Queen on the advice of the Lord Chancellor. In cases of special difficulty, a tribunal of Commissioners may sit on a case.
There is also an internal complaints procedure (for complaints relating to process and administration, rather than decisions and the scheme), with the possibility of appealing to the Independent Case Officer (outside of the civil service) and, in the last resort, to the Ombudsman.
Outcomes
Through courts, the UK CSA can garnishee earnings, seize assets, cancel driving licences, affect credit ratings and membership of professional organizations, and impose prison terms. Parents can also voluntarily have the CSA collect payments directly from their earnings.
In 2002–03, 76% of cases collected by CSA were compliant, with 73% of money collected. The average (mean) child support assessment in May 2004 was for £21.94pw, though this figure would be considerably higher if it took into account the minimum £5.40 payment required from many payers on benefits, even though they may be calculated to have no liability. Unfortunately, the CSA has been plagued by computer problems for 18 months, and more recent or detailed data is not available. This makes it impossible to assess the efficiency of the scheme or its effectiveness in terms of improving children’s living standards (or to assess the effect on paying parents). That said, the fact that the government passes through only £10pw of child support to payees on income support means that payments made are certainly not improving living standards as much as they could for families at the lower end of the income spectrum. This limited pass-through is viewed poorly by both resident and non-resident parents, especially where the government is seen as retaining large amounts of money paid for the benefit of children.
The simplicity of the scheme is seen as a positive factor, especially given the extreme complexity of the previous scheme, which used more than 100 pieces of information about the parents’ and children’s circumstances to calculate liability, most of which could not be readily obtained. However, this simplicity also means that many of circumstances which affect parents’ ability to pay, children’s well-being, and quality of relationships are not able to be taken into account or must be addressed in departures from formula assessments.
Any analysis of the UK scheme must be very cautious, since the overwhelming source of frustration and complaint for all parties concerned is the extremely problematic computer system and its attendant administrative difficulties. These very basic problems could be camouflaging issues that are more inherent to the scheme and the calculation of child support.