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Consultation Response over unearned income


Many receiving parents receive unnecessarily low child maintenance as no application to the variation scheme is made to bring other forms of 'additional income' into the calculation.  

Public consultation to remove this barrier was recently published, and NACSA joined forces with the esteemed James Pirrie, at Family Law in Partnership (www.flip.co.uk) to deliver a response to modernise and improve the CMS. 

 

We suggested to the DWP that there were some easy wins but that to create a system that is truly fit for purpose requires myriad change. Some of the items we canvassed in our response were the following.

 

  1. The current rules see the court’s jurisdiction limited: wherever the CMS could apply to make orders, generally the court cannot unless parents agree. This involves

  • parents in duplicated expense,

  • gives the potential for inconsistent decisions between two government bodies and

  • can often act to wreck sensible progress being made.

  • All too often it results in a long-tail of litigation that dogs a separated family for years.

It is possible to redefine the boundaries so that cases that are within the court system are dealt with entirely within the court system.

 

  1. The UK fails to lead the way on international recognition and enforcement of maintenance orders. Here the CMS could step in with its extensive tracking and enforcement powers to transform the jurisdiction’s ability to support those children entitled to support, under foreign court and agency arrangements.

 

  1. We have long sought the extension of the administrative (CSA/ C-MEC/ CMS) regimes’ jurisdiction through the university years. Currently, these schemes drop children after A-levels and leave them having to seek help through the courts, which of course usually moves too slowly, is too confrontational and disproportionately expensive for many of them to do it. The DWP etc has long ignored this request on jurisdictional grounds [the DWP treats university children as someone else’s problem], silo-thinking at its worst. Whether we get a response on this occasion, only time will tell.

 

  1. The lifestyle inconsistent “variation” category which gave the CMS and its appeal tribunals power to deal with cases in a common sense way was stripped away in the latest scheme. More appeals, longer appeals and more unsatisfactory outcomes have been the result. The ground should be restored immediately.

 

  1. Complex cases will usually wander the CMS and appeals system for two to three years or more. A first step to address that would be the removal of the mandatory review stage, so that problem cases can pass quickly into the appeals process …

 

  1. Once there, and early triage/ settlement stage with more regular use of consent orders powers would permit earlier settlement, a focus on children not the rules and resolve cases that otherwise burden the system and risk overwhelming it.

 

  1. There must be better communication and an earlier resolution of errors but hand in hand, enforcement powers (where the right orders are not being paid) must be used rather than left untouched whilst children’s lives unroll without appropriate financial support being paid.

 

The consultation questions focuses respondents upon a number of relatively narrow and technical areas. They are undoubtedly hot-spots … but they are troubled areas because they seek to deal with difficult situations … and throughout the last thirty years, we have seen that tinkering and patching the system tends to result in

  • the unrest that always accompanies winner & losers,

  • errors whilst the new system takes hold and

  • ever-progressing exceptions to exceptions, complexity which alienates all but a handful of nerd-professionals and exceptionally determined users of the system.

 

The problem then of course is that parents’ focus can drift from the children who need support and towards the successful running of technical arguments, which seem to carry with them vindication or denigration depending on the outcome to the application.

 

Above all, we encourage the CMS system to authentically widen its remit and vision, avoiding delivering blame or approval which so often runs alongside the schemes decisions and instead

  • focus on the child’s welfare

  • promote authentic co-parenting (where safe); as part of which

  • getting broadly the right sums of money to flow consistently between parents for the support of children is something that is far more likely to fall into place on its own.

 

 

James Pirrie is a solicitor, arbitrator and mediator, with extensive knowledge in CSA and CMS law.