Family Law

The Work and Pensions Committee Child Maintenance Service (CMS) inquiry was published today, following its launch in July 2016.

The resulting report concluded that the ideal outcome for separated parents and their children was a fair and consistent payment of maintenance agreed by both parents and that the Government is right to encourage this cooperation. Many separated parents are, however, unable to make suitable arrangements without support or even enforcement. In some cases, a parent may have suffered domestic abuse and it will not be safe for them to continue contact with their abuser. In others cases, a non-resident parent may be determined to selfishly avoid their parental responsibilities, passing on financial costs to the parent with care and, in the form of benefit payments, the taxpayer.

However, in cases of avoidance it is above all the children who ultimately lose out. The Government must ensure that the CMS is working so that does not continue to happen.

The Committee made a series of recommendations to achieve this goal:

• Case histories of prolonged underpayment of child maintenance should be transferred automatically from the Child Support Agency (CSA) to the CMS. Where the CSA case includes ongoing investigatory or enforcement action, parents with care should be permitted to opt to be placed immediately in the Collect and Pay scheme on joining the CMS.
• As some parents are unable to afford the application fee (with some giving up on pursuing maintenance payments altogether), CMS applicants on means-tested benefits should be exempt from the £20 application fee.
• Charges for using Collect and Pay are discouraging some parents who require the service. The Government should, therefore, conduct a review of whether Collect and Pay charges and access criteria are achieving the intended outcome of increasing the number of more collaborative arrangements.
• The £20 fee for domestic abuse survivors is welcomed but further changes are required to make the system safe and effective for survivors of domestic abuse and, ultimately, their children. All frontline CMS staff should receive training on domestic abuse, including identifying and understanding abusive behaviour and demonstrating sensitivity in dealing with its victims. Affected parents should be able to proceed directly to the Collect and Pay service and should not be charged. 
• A CMS stakeholder group should be established, including parents with care, non-resident parents, charities such as Gingerbread and Families Need Fathers and advisory organisations such as Citizen’s Advice. This group should review the effectiveness of the CMS, recommend improvements to its operation and consider its response to wider social and economic trends such as the increase in self-employment.
• The criteria used for prioritising the collection of arrears, including any time or value thresholds, should be clearly set out, appreciating that even small payments can be of huge value to vulnerable families.
• The CMS should clarify its stance on pursuing arrears-only cases.
• The Department for Work and Pensions (DWP) should set out how it intends to ensure that children from previous relationships and children from new relationships are given fair and equitable treatment in cases where CMS intervention is necessary.
• As parents do not have recourse to the courts to enforce child maintenance payments, it is recommended that the CMS adopts a presumption in favour of enforcement action when a payment has been missed, and proceed unless there is either evidence of a valid reason why or a credible reparative payment plan is in place.
• The DWP should reinstate provisions for parents to challenge child maintenance awards on the grounds of assets and lifestyle inconsistent with income.
• When an application for an assets or lifestyle variation has been made and a tribunal or court ordered higher maintenance payments than would arise from a standard CMS calculation, the higher payments should apply until the variation is dismissed.
• A small HMRC investigation team should be embedded in the Financial Investigations Unit to work in tandem with the CMS.

However, Jerry Karlin, Chair of Families Need Fathers, felt that the inquiry missed a number of key opportunities:

'Too many dads are downtrodden rather than deadbeats. Our child maintenance system is inadequate and undermines shared parenting. It discourages parents from working and pushes many into severe hardship and poverty. This Committee’s report simply tinkers around the edges, but does not address fundamental flaws in the system. For the sake of our children, CMS must be completely reformed.'

Click here to read the Committee's report in full.

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For further information on child support, see the Lexis®PSL Family Practice Note: Child Support – General Considerations (subscription required).

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