Child Support System - Case Study Example

Introduction There is no question that each of us has a concern for the welfare and well-being of all children, whether we are parents or not. Children are very special gifts from God and it is our responsibility to nurture and care for them. The question often arises as to what is the level of the duty of care which we as a society are committed too, and how concerned are we about the children of others Specifically, the children whose biological parents who either do not or cannot assume the responsibility of proper care and maintenance of their offspring. Actually, it does not and should not matter what the circumstance of the parent is. If a child is in need, then it is our responsibility to see to it that they are cared for. Ostensibly, it is within the above-mentioned perimeters which the Child Support Agency was created; to assist children who are not receiving voluntary support and maintenance from one or both biological parents. Albeit the agency was created with very positive and extremely necessary intentions, it is clear that it is not reaching its mark. From an operational real world perspective, the Child Protection Act 1991 is not the panacea it was envisioned to be, and the Child Protection Services Agency stops far short of the needed administrative and enforcement breadth, many of the children in need are not being serviced adequately, while most lay in need of basic necessities, waiting word on the status of their claims. Is it too much red tape, and not enough measured care 1 2 Child Support Agency The Child Support Agency (CSA) is a UK Government Executive Agency, part of the Department for Work Pensions, launched on April 15, 1993. The CSA is responsible for implementing the 1991 Child Support Act and subsequent legislation".1 Child Support, or Child Maintenance, is the contribution from a non- resident parent towards the financial cost of raising their child, paid to the person with whom the child lives, (usually the other parent). The level and conditions of payment can either be mutually agreed between the two parties, or, in case of disagreement, decided by legal means. "Prior to the launch of the CSA, child support disputes were handled by a court based system. This system did not have the power to trace absent parents, and was criticized as "arbitrary and unfair".2 The CSA was given the task of assessing payments to ensure consistency, with the powers to collect and distribute the maintenance payments itself. The CSA's function is two fold, encompassing calculation of how much child maintenance is due (based on current legislation and rules) and collection and transferal of the payment from the non- resident parent to the person with care. The CSA may only become involved in the collection and distribution of maintenance payments when so requested by either parent, 1r Kehoe v. Secretary of State for Work Pensions [2003] EWHC 1021, [2003] 2FLR 2ABCTroubled History of Child Support Agency, BBC News 18 January 2006 3 or when the person is with care receives government benefits. Then the CSA automatically becomes involved. "A new method of child maintenance calculation came into effect on March 3, 2003. The previous method used a complex formula of up to 108 pieces information".3. By first calculating the total child maintenance required based on the children's ages, then calculating the non-resident parents income after various allowances were subtracted, and finally working out what portion of the calculated maintenance was to be paid by the non-resident parent, based on their income".4 "Under the new method, the basis for calculating maintenance has been simplified with a fixed percentage of the non-resident parents net income being taken, from 15% for one, 20% for two, and 25% for three or more. The maintenance was also reduced if the non-resident t parent has children in their current family, reducing the payment by 15% if they had one, 20% if they had two, and 25% for three or more".5 The Independent Case Examiners Office was set up in 1997 as an independent body to deal with complaints about the CSA. Three recurring themes are mentioned in multiple annual reports. Namely delay (51% of complaints in 2004-2005)), error (24% of complaints in 2004-2005) and no action taken (14% of complaints in 2004-2005)".6 3Child Support Complaints, BBC News 3 July 2001 4Child Support Agency Operational Improvement Plan 2006-2009 5ibid 6ABCDE Child Support Agency Quarterly Summary Statistics December 2005 4 Assessments based on the same financial criteria can give different results, depending on which rules the case is judged under. Non-resident parents who would pay less under the new rules currently can not get assessed, except in special circumstances, while the CSA's plan is to move everyone to the same system, in the interim different people with the same current situation will pay different amounts, based solely on when the case is assessed. Official statistics show that the average weekly liability is more under the new scheme. "For the years 2004-2005, the average new scheme liability varied from 24 pounds to 26 pounds per week, whereas the old scheme varied from 19 pounds to 21 pounds".7 "In November 2004, the head of the CSA resigned amid wide spread criticism of the CSA system".8 Sir Archy Kirkwood, chairman of Work and Pensions Committee, described the situation as "a systemic, chronic failure of management right across the totality of the agency".9 In November 2005, Tony Blair admitted that the CSA is "not properly suited", to do its job, amid reports that for every 1.85 pounds that gets through to children, the CSA spends 1 pound on administration".10 Later figures showed that it costs the CSA 12 millions pounds a year to run, more than 8 million pounds it collects from absent parents".11 7ABCDE Child Support Agency Quarterly Summary Statistics December 2005 8Child Support Services Chief Resigns Amid Criticism, BBC News 17 November 2004 9Basically It Doesn't Work, BBC News, 17 November 2004 10Child Support Services Not Suited For Job, BBC News 16 November 2005 11ABCDE Child Support Agency Quarterly Summary Statistics December 2005 5 Even prior to its opening, the CSA was subject to criticism, with MP David Tredinnick describing the CSA as a "sequel to 1984" due to concerns about "CSA snooping".12 "The current scheme examines lots of facts about the two households, and needs evidence to support these. The information is roughly equivalent to separately examining each household for an income support claim. It is said that about 100 pieces of evidence can be needed. (The claim time for income support is X, for CS is Y. There is a reason for this- with income support, the "client" wants to cooperate, while with the CSA, at least one and possibly both "clients" don't want to cooperate".13 The reformed scheme has been diverted away from fairer and possibly cheaper opportunities by concentrating on the old-fashioned "lone mother on benefits - absent father earning model. The result will fester. The child support system should be designed to help, or at least not hinder, both separated parents become (more) economically active. And when they are economically active, it should supplement the earnings of whoever cares for the children at anytime to bring the child out of poverty. It should not be intended primarily to try to relieve child poverty on its own, because it will not succeed often enough. This is similar to some government thinking, except for one key problem - The UK's child support system appears to inhibit, not help and NRP become economically active. It tends to lead poor NRP's to the view "stuff it, why bother to earn more" 12Child Support Complaints, BBC News, 3 July 2001 13Flaws with Treating "Administrative Ease" 6 The agency is caught up in a financial, procedural and administrative debacle which points to an overall inadequacy in its planning and formation. Some of the standing numbers released by the agency's self assessment, clearly illuminates this fact: "Maintenance debt accumulated since 1993 stood at over 3.3 billion pounds at April 2005. This is owed by non-resident parents as a result of them failing to meet their responsibility. Much of this is believed to be uncollectable, either because of the limitations of the Agency's powers of enforcement (eg. debt over six years old), or because the circumstances of the non-resident parent (eg. lack of financial means, now living abroad). As the Agency has no power to write off any of this debt, it is inevitable that this headline figure will continue to grow as compliance is unlikely to ever reach 100 %.Over a quarter of a million new scheme applications cases have not yet cleared. There are also volumes of outstanding changes of circumstances to process on new scheme cases. Just under 70,000 old scheme cases have not been assessed, largely because the non-resident parent cannot be traced. Many clients face delays in making an assessment. For the new scheme the average age of application at clearance was just under a year in December 2005 (although it should be noted that of cases cleared, 25 percent did so in less than 6 weeks, and just over half in 6 months). The average age of those applications not yet cleared stood at 67 weeks in December 2005. The level of accuracy of new scheme assessments, while having improved in recent months, currently stand at 83 per cent, against a target of 90 per cent. 30 per cent of non-resident parents who have been assessed and from whom the agency have requested payment do not pay. The agency fails to deliver a supportive 7 and responsive service to those whose circumstances change. There is no separate provision for handling clients with more complex circumstances. Clients have difficulty understanding letters and communications sent by the agency".14 To further illustrate the agency's shortcomings and inability to satisfy the needs of the circumstances which it must deal with in attempting to accomplish the responsibility mandated by Parliament I will provide an in depth analysis of the case of Kehoe v. secretary of State for Workers and Pensions [2005] UKHL 48. Mrs. Kehoe contends, that the Child Protection Act 1991, gives her the right to recover financial support for her children from Mr. Kehoe, from whom she is divorced. At issue; the Child Support Act 1991 gives her a right to recover financial support for the children of Mr. Kehoe and that the provisions of the Agency purporting do deny her a power of direct enforcement against him are inconsistent with the right of access to a court, guaranteed by article 6 of the European Convention on Human Rights. She further states that if she were permitted to initiate action against her ex-husband, she would have by this time, received more benefits for her children.15 It seems that Mrs. Kehoe filing was a day late and a pound short of her claims being applicable to previously existing laws. The case of Mrs. Kehoe clearly points to the fact that the Child Support System is broken and in need of serious repair. "over a period of ten years Mrs. Kehoe has received substantial payments from her husband, but there 14Child Support Agency Operational Improvement Plan 2006-2009 15r Kehoe v. Secretary of State for Work Pensions [2003] EWHC 1021, [2003] 2 FLR 8 have also been periods during this time (while under the Article 6 stipulations of the Act of (1991), that she has not received any payments. And Mr. Kehoe has mounted substantial arrears."16 The process by which Mrs. Kehoe implied she could have received a more just and expedient result was characterized in a white paper "Children Come First" vol. I (cm 1264) presented to Parliament in October 1990 states in part: "The present system of maintenance is unnecessarily fragmented, uncertain in its results, slow and ineffective. It is based largely on discretion In a great many instances, the maintenance awarded is not paid or the payments fall into arrears and takes weeks to reestablish".17 The white paper went on to make recommendations that all of the services, including enforcement, should be placed under one umbrella, and its contention was this would remove discretion and establish uniformity, increase efficiency and improve accuracy and response time. Albeit the white paper specifically addresses fragmentation, uncertain results, rate of accomplishment and arbitrary decision making, it was still unable to correct these shortcomings in its operational scheme. Moreover, it was the belief that with one agency overseeing the liability enforcement, that the incidence of liability arrears would be substantially reduced. As it is in this case (Kehoe v. Secretary of state), we observed that Mr. Kehoe has fallen behind in his payments and due to the 16r Kehoe v. Secretary of State 17Children Come First Vol. I (cm 1264) White Paper to Parliament, October 1990 9 removal of the magistrates courts etc., and the Agency's admitted inability and limitation to pursue location and enforcement, Mr. Kehoe and countless others have fallen hopelessly behind in their responsibility to their children. In that the courts have been eliminated from the process under the new scheme (which is the venue sought by Mrs. Kehoe), she is now relegated to the dependency of the Secretary of State to pursue the venue of last resort (because the Agency has previously attempted one of the two enforcement schemes available to it under the Child Support Act 1991; to attach Mr. Kehoe's wages, but he is a director with the company and in this effort they have been unsuccessful), to seek a deferred prison sentence (provide Mr. Kehoe with a reasonable amount of time to pay), however, if he does not comply within a specified period, then the CSA can petition the court and have him incarcerated. This in and of itself, is a catch 22 for Mrs. Kehoe and her children; if he is incarcerated, then he is not earning, so who benefits by this The Child Support Act 1991 breathed life onto the pages of the white paper of October 1990; it provided the CSA with the responsibility of maintaining the qualified child of each NRA in the care of a Parent With Care. "It imposed a duty on NRA's, and it obliged the Secretary of States, whenever a parent made an application, to assess the need based on the statutory formula and it provided the Secretary of State with (limited) enforcement powers".18 Unfortunately, for those generally affected by NRP's who were non-responsive, slow to pay or those like Mr. Kehoe who challenge the assessment, the 18Child Support Act 1991 10 Act does not provide civil recourse for those like Mrs. Kehoe. Lord Bingham of Cornhill, cites Social Security v. Butler (1995) 1 WLR 1528,19 concerning whether the court could grant a Mareva injunction to the Secretary of State against an NEP for non-payment of assessment (def. Marevais a discretionary remedy by which the court orders the seizure of a defendants assets pending information of a claim, where there is a real risk of their being removed from the jurisdiction in order to avoid paying the claim.)20 The problem (s) which arise here are the obvious limitations of the Act 1991; which does not have the breadth to extend its duty of maintenance assessment into civil action and is only allowed to initiate action as it relates to the (comprehensive) provisions stipulated in the Act. Also the Secretary of State does not possess the authority to provide for precautionary relief. Additionally, Mrs. Kehoe does not have the right to enforce the obligation. If it could be done, then only the Secretary of State would have the authority to do so. As such, the court, denied to grant Mareva relief. As further basis for denial for Mareva injunction the court noted that the Secretary of State might first seek relief in a magistrate's court, then in county court. If neither of these venues are successful then it is incumbent upon the Secretary of State to seek a remedy other than the high court.21 18Child Support Act 1991 19Social Security v. Butler (1995) IWLR 1528 20Encarta on line encyclopedia 21op cit 11 It was not by accident that the Act 1991 does not include a clause which would authorize the Secretary of State to pursue remedies beyond magistrate and county courts. Moreover, it was a slip of consistency that the powers/authority of the Secretary of State have been limited to the enumerated, short of pursuing civil action. The thinking of the government planners were that the CSA would be armed with the statute of Parliament (CSA 1991), along with the scope and influence of a government agency, and would therefore have no difficulty in carrying out its responsibility of proving maintenance payments for children in need of their assistance. It was perceived to be a no brainer, the changes were incorporated to improve a system which possessed serious administrative, procedural, policy and operational flaws. On the basis of Mrs. Kehoe's challenge of the Act 1999, on the basis of European Convention Human Rights, the court noted that; "it is clear that the function of article 6 of the convention is to guarantee certain important procedural safeguards in the exercise of rights accorded by national law and not ordinarily to require that particular substantive rights be accorded by national law".22 Lord Bingham goes on to cite James v. United Kingdom (1986) 8 EHRR 123: in which the court at Strasbourg said (at para 81) "that article 6 (1) extends only to "contestations" (disputes) over (civil) rights and obligations".23 Additionally he cites H v. Belgium (1987) 10 EHRR 339; Z v. United Kingdom (2001) 34 EHRR 97, paras 87 and 98;24 Matthews v. Ministry of 22r Kehoe v. Secretary of State 23James v. United Kingdom (1986) 24Z v. United Kingdom (2001) 34 EHRR 97 12 Defence [2003] 1 AC 1163, paras 3, 51, 142.25 Which also uphold the principle in para 81, found in James. Philip Sales in The Civil Limb of Article 6 ECHR, describes what qualifies as a civil right and obligation: The classic areas are claims between individuals in relation to their rights inter se in property, contract, tort, restitution etc., where Government/ the state is a party to a claim of this kind against an individual the nature of the rights at stake are still of a character to qualify as civil rights and obligations. But the ECtHR has expanded Article 6 (1) out from the paradigm area for its application of Article 6 (1), so as to bring it to cover a large area of claims in public law against administrators: However, there is neutrality of Article 6 regarding content of substantive rules. Additionally Sales states: "It is also well- established that, as a matter of general principle, Article 6 (1) is neutral as to the content of a person's civil rights and obligations. "Article 6 (1) extends only to contestations (disputes) over (civil) rights and obligations which can be said, at least on arguable grounds, to be recognized under domestic law, does not in itself guarantee any particular content for (civil) rights and obligations in the sustentative law of the contracting states".26 25Matthews v. Ministry of Defence [2003] AC 1163 26Philip Sales, The Civil Lamb Article 6 ECHR 13 In his dissent Lord Bingham concludes that "Mrs. Kehoe cannot seek relief under Article 6. Further that while it is clear and obvious that Mrs. Kehoe has experienced hardship, discomfort and denial, and even though he is of the opinion that she probably would have received a more satisfactory result if she initiated her own enforcement, that it is not the jurisdiction of this court to impose relief. That the shortcomings of the statute and circumstances is the domain of Parliament".27 Lord Walker of Gestingthorpe, was in agreement with Lord Bingham and reiterated much of what Lord Bingham and Lord Hope of Craighead. However, Baroness Hale of Richmond points out that the crux of the issue as it relates to Mrs.. Kehoe when she states; "in my view the continued existence of the wider rights, together with the fundamental objective of the 1991 Act to improve the provision made for children by their non-resident parents, places the collection and enforcement provisions of the Act on the procedural rather than the substantive side of the line. A civil right to be maintained exists and prima facie children are entitled to the benefits of the Article 6 rights in the determination and enforcement of that right".28 She further states that, "judicial review may produce some action from the Agency, but what is needed is money from the absent parent. Action from the Agency will not replace the money which has been irretrievably lost as a result of the Agency's failure to act in time".29 27r Kehoe v. Secretary of State 28ibid 29ibid 14 Baroness Hale goes on to mention a comparative study which was prepared by Professor Wikeley which shows; "that it is not a necessary feature of comparable child support schemes elsewhere in the common law world, that the courts have been eliminated from the scheme".30 "It stands to reason that if the state is going to take over the enforcement of a persons civil rights it has a duty to act compliantly with Article 6 in doing so. Just as the courts, as public authorities, have to act compliantly with the convention rights, so does the Agency".31 Baroness Hale allowed the appeal. Albeit each member of the court engendered a special feeling for Mrs. Kehoe and each acknowledged that the process of the Agency had obvious shortcomings. Additionally, they all agreed that Mrs. Kehoe would probably serve as a better enforcer than the Agency in securing the monies from her husband, they were all but one constrained by the law and did not allow the appeal. However, in the courts acknowledgement of points and by all other accounts, it is clear that the Agency needs to be fixed. 30r Kehoe v. Secretary of State 31ibid Bibliography ABC Troubled History of the Child Support Agency, British Broadcasting News, 18 January 2006, Retrieved on line on April 22, 2006, from www.bbc.com ABCDE Child Support Agency Quarterly Summary Statistics: December 2005 Basically It Doesn't Work, British Broadcasting News, 17 November 2004, Retrieved on line 0n April 22, 2006, from www.bbc.com Children Come First Vol. I (cm 1264) White Paper Presented to Parliament October 1990 Child Support Act 1991 Child Support Agency Operational Improvement Plan 2006-2009 Child Support Complaints, British Broadcasting News, 3 July 2001, retrieved on line on April 22, 2006, from www.bbc.com Child Support Services Chief Resigns amid Criticism, British Broadcasting News, 17 November 2004, from www.bbc.com Child Support Services Not Suited for the Job, British Broadcasting News, 16 November 2005, Retrieved on line on April 23,2006, from www.bbc.com Encarta Encyclopedia on line Flaws with Treating "Administrative Ease" Retrieved on line on April 23, 2006, from www.childsupportanalysis.co.uk James v. United Kingdom (1986) r Kehoe v. Secretary of State for Work and Pensions, [2003] EWHC 1021; [2003] 2 FLR 578, Retrieved on line on April 23,2006, from www.parliament.the-stationery-office.co Matthews v. Ministry of Defence [2003] AC 1163 Sales, Philip, The Civil Limb Article 6 ECHR, Retrieved on line on April 23, 2006, from www.un3850.com Social Security v. Butler (1995) IWLR 1528 The law relating to Child Support-Department for Work and Pension Unacceptable Child Services Agency Faces Overhaul, British Broadcasting News, 9 February 2006, Retrieved on line on April 23, 2006 from www.bbc.com Z v. United Kingdom (2001) 34 EHRR 97 Read More