EXPEDITED CHILD SUPPORT

An Overview of the Commonwealth Countries'
and United States' Procedures for
Establishing and Modifying Child Support

Part 1
The Administrative Child Support Schemes of the Commonwealth Countries (continued)

THE UNITED KINGDOM

A. History of the Existing Scheme

Mavis Maclean reports that in the United Kingdom, the Thatcher administration of the 1980s "became increasingly impatient with the nanny state culture of dependency and worked to promote the value of individual effort."[39] In addition, the number of lone-parent families was on the increase, growing from six percent in 1961 to 14 percent in 1987.[40]

Prior to the introduction of the child support scheme, the courts set the support orders. The court-based approach was characterized by low levels of maintenance and difficulties in enforcement. In 1989-90, a survey indicated that nearly three out of four parents with care did not receive any support and almost one million lone parents were dependent on government assistance.[41]

B. The Child Support Scheme
The Child Support Act 1991

In response to the inadequacies noted in the prior system, the United Kingdom's administrative child support process came into being with the proclamation of the Child Support Act 1991.[42] This legislation provides for the establishment of an administrative scheme that completely overhauls the role of the court in the area of child support. A significant provision in the Act, Section 8, removes the jurisdiction from the courts to make basic child support assessments in most cases. Pursuant to this provision, the court retains a residual function in the following circumstances:

  1. where the absent parent's income is high and the custodial parent applies to "top up" the agency's assessment;[43]
  2. where payment of school fees is in issue - the Child Support Agency does not have a mandate to deal with this item of expenditure;[44]
  3. where the child in question suffers a disability and there is a need for an allowance to cover some of the expenses of caring for the child;[45]
  4. in the unusual situation where the party seeks either a lump sum or a property adjustment order in regard to the child or children; or[46]
  5. if an application is made against the person with care.[47]

There has been some discussion about having the agency exercise discretion in these instances also.[48]

An application for an assessment must be supplied on a maintenance application form provided by the Secretary of State at no cost.[49] Since April 1993, all parents, including those in the process of seeking a divorce, have had to go through the agency to have child support orders assessed and established. Prior to 1993, divorce cases were dealt with through the court system and support would be established there. The reason for the increased move toward using the agency in all situations is that court-ordered maintenance orders were often ignored and the courts' decisions were viewed as very arbitrary.

The effective date of a child maintenance assessment is generally deemed to be the date upon which an application is received.[50] As soon as practical after the Child Support Agency has received a qualifying application, the agency must contact the other relevant parties, notably the absent parent.[51] This notification is done by means of a maintenance inquiry form sent to the absent parent with a written request that the form be completed and returned within 14 days.[52]

The absent parent has the right to amend the information provided on the inquiry form at any time before the maintenance assessment is conducted; however, the amendment cannot relate to a change of circumstances that arose after the date of assessment or, in other words, the date upon which the Child Support Agency received the original maintenance application. If the absent or non-custodial parent fails to return the form, an interim maintenance assessment will be made which, punitive in nature, equals an amount about one and a half times as much as the general maintenance requirement. Once the full assessment is made, payments for the period of the interim maintenance assessment become due.

Section 13 provides for the appointment of both child support officers and chief child support officers by the Secretary of State. This Child Support Agency staff works independently, although technically, the staff members are civil servants in the Department of Social Security.[53] The officers are involved in "making, reviewing or canceling maintenance assessments."[54] Accordingly, the child support officers may exercise discretion in regard to not only whether or not to accept an application for a maintenance assessment but also whether or not to accept a request for a review of a maintenance assessment.[55]

The Formula

The child maintenance formula is based on income support rates. The calculations accommodate both parents' ability to contribute to the child support payments through a consideration of how much each parent would have left once basic day-to-day expenses are estimated. The details of the formula include the following factors:

  1. the maintenance requirement (the basic costs of maintaining the children);
  2. assessable income (basic day-to-day expenses offset against net income);
  3. the deduction rate (what proportion of assessable income is to be used for the children's care);
  4. additional element (applies only when the parent's income is high enough that he or she can provide more than basic child support);
  5. protected level of income (ensures that, after child support payments have been calculated, the non-custodial parent's income remains significantly above basic income support);
  6. a minimum amount (parents are generally expected to pay this amount for their children's care);
  7. extra provision for disabled children (the court addresses this issue, which requires the exercise of discretion); and
  8. inclusion of costs for the parent with care (represents the care needed by the child over and above food and clothing needs).

The formula also provides for certain special cases; if one of the following categories exists, special arrangements will be made pursuant to the formula:

  1. both parents are absent parents (the lone-parent premium would not be included);
  2. care of the child is shared (allowances are included in exempt income and protected income to provide for time spent with the child and the non-custodial parent is deemed to have already contributed a proportion of the total support due, based on the proportion of time spent with the child);
  3. different children of a non-custodial parent are in the care of different people (assessed support is shared between the different applications based on the comparative sizes of the support requirements); or
  4. a custodial parent looks after the children of more than one non-custodial parent.[56]
The Administrative Review Process

If a parent is dissatisfied with the child support officer's assessment, he or she can request a review. The first stage of the administrative review process is set up so that an officer not involved in the initial maintenance assessment conducts this review.[57] Pursuant to Section 18 of the Child Support Act 1991, the basis for a review of a child support officer's assessment is reasonable grounds for supposing the "refusal, assessment or cancellation" in question

  1. was made in ignorance of a material fact;
  2. was based on a mistake as to a material fact; or
  3. was wrong in law[58].

Before the review proceeds, notice is given to the interested parties.[59] If the reviewing officer determines that a fresh assessment is appropriate in the circumstances, the same officer will proceed on that basis.[60]

Beyond this right to request an initial review, a dissatisfied party can request a further review by a child support appeal tribunal within 28 days of receiving notification of the reviewing child support officer's decision.[61] Section 21 and Schedule III of the Child Support Act 1991 set out the constitution and authority of the tribunal. Schedule III states that the same person appointed as the President of the social security appeal tribunals, medical appeal tribunals and disability appeal tribunals pursuant to the Social Security Act 1975 "shall, by virtue of that appointment, also be President of the child support appeal tribunals."[62] The tribunal is therefore completely independent of the Child Support Agency.

The President of the tribunal has the responsibility for filling the tribunal positions; each tribunal consists of a chairman and two other members. The chairman must have "a five year general qualification or [be] an advocate or solicitor in Scotland of five years' standing."[63] The other members of the tribunal are drawn from panels and must "[appear] to the President to have knowledge or experience of conditions in the [geographical] area and to be representative of persons living or working in the area."Often, these two members do not have directly relevant experience, but this factor has not been seen as a problem [64] because they receive adequate assistance from the legally trained chair and the clerk in attendance at the hearings.

Beyond the tribunal level, appeals are heard by the Child Support Commissioner, who is appointed by the Queen pursuant to Section 22 of the Child Support Act 1991. The Commissioner will only hear appeals on questions of law arising out of either the child support officer's or the appeal tribunal's decision. A commissioner must have at least 10 years of general legal experience.[65]

Varying the Child Support Order

In order to adjust the amount of the child support order, the Child Support Agency must conduct a review. The review may take one of two forms.[66]

The first form of review is a periodic review automatically conducted every two years.[67] The interested parties are contacted and asked to provide up-to-date information. A fresh assessment is then made on the basis of this new information.

The second review type is for a change of circumstances.[68] The request of one of the parties initiates this review process. The basis for requesting review of a maintenance order already in force is that "by reason of a change of circumstance since the original assessment was made, the amount of child support maintenance payable by the absent parent would be significantly different if it were to be fixed ... as at the date of application."[69] The test applied by the child support officer for determining whether or not to conduct the review is whether "it is likely that he [or she] will be required ... to make a fresh maintenance assessment."[70] In other words, if the child support officer with conduct of the file considers it likely that upon completion of the review, the support amount will change so as to require an entirely new assessment to be done, the review request will be accepted. Upon request for a review, the other interested party is notified and asked to provide any relevant up-to-date information about his or her circumstances.

A fresh maintenance assessment follows from the review except in the situation where "the original assessment has ceased to have effect or should be brought to an end" or where the difference between the assessed amount and the initial assessment on the one hand and between the assessed amount and a fresh assessment on the other hand would be less than the prescribed amount.[71]

C. Evaluation of the United Kingdom Scheme

The United Kingdom's child support system has come under a fair amount of criticism since its inception in 1991. The primary criticism centres on the complexity of the process, which has led to lengthy delays in processing the child support claims. Critics suggest the system has been set up to encourage Child Support Agency personnel to focus on increasing the amount of child support payments from non-custodial parents who are already making payments on a regular basis. In other words, the system has not been designed in such a way as to provide a lot of resources to go into the task of locating "fugitive-location" parents.[72] A further criticism is that the system as implemented does not accommodate non-custodial parents who have since assumed additional parental and financial obligations with a second family.[73]

Other criticisms of the British system centre on the provisions of the legislation. In 1993, solicitor Imogen Clout reviewed potential effects on the way barristers and solicitors would have to conduct business in order to accommodate the legislation. First, an agreement by the custodial parent not to seek maintenance in exchange for something else during the course of negotiations is no longer possible. According to Clout,

... in the past husbands and wives have entered into ... agreements and stuck by them. They have trusted in the good faith of the other party and mostly that trust is rewarded. If the matter is taken back to court later for an increase, the court is warned by the existence of the original intention of the parties and the fact that the division of capital may have reflected the existence of the agreement.[74]

Also affected is the general approach a solicitor must take to the case and the potential for delay in dealing with any other related outstanding family issues. The solicitor must tell the client to attend at the Child Support Agency as an initial step before any other family issues can be addressed. In other words, it is not possible to advise a client about the potential outcome of a family case unless support is first settled.[75] As a result of the Act, the court no longer has jurisdiction over most cases of child maintenance, and the matters are appealed through the administrative channels instead.[76] This characteristic contrasts with the substantial reviewing role of the courts in both New Zealand and Australia. In addition, there are questions about the efficiency of the system itself. Linda Cecil of the Department of Social Security estimates that when the administrative system was first set up, the Child Support Agency process was probably more lengthy than the court process. This factor may have resulted from people's initial mistrust of the agency and unwillingness to comply, particularly at the outset when they were required to return the necessary documentation and become actively participatory.[77]

In regard to the 1995 amendments to the Act, solicitor David Burrows argues that the newly enacted provisions will only serve to further complicate the existing system. In his words, "the Act creates a system which is far more elaborate than the one operated by district judges and magistrates under the parallel family courts jurisdiction ... by the Child Support Agency route the result will be achieved by more complicated, time-consuming - and therefore more expensive - means."[78]

Finally, the provisions of the Act have resulted in fewer possible "permutations of arrangements between parties which previously were available to them."[79]The United Kingdom system has been set up in such a way that other family issues are not at all addressed in relation to child support. This separation of issues has become even more pronounced since 1993 when the agency assumed jurisdiction over child support in every situation.[80]A couple of interest groups have formed in Britain. Two of the most prominent are the Network Against Child Support and Families Need Fathers. These groups have stressed the need to look at maintenance and access as interrelated issues and to deal with them accordingly. To date, Parliament and the Child Support Agency have maintained a hard-line approach that child support is to be dealt with as an exclusive issue.

Alastair Bissett-Johnson and Jonathan Fitzpatrick recently examined the disadvantages of the British system in reference to the Canadian government's consideration of imposing administrative formulae in favour of litigation in Canada.[81] They identified the need for both more simple formulae and a residual role for courts for more complex cases. In their opinion, it is not advisable to set up a system that focuses only on child support and ignores other family issues. They suggest "a holistic approach," which would "encourage comprehensive mediation" to be used.[82] They suggest the implementation of certain characteristics into any system, based on what they see as shortcomings in the British system. Some of their recommendations are as follows:

  1. make sure that, initially, there is not an overload of cases so as to allow for available resources to provide sufficient guidance to people;
  2. "clean-break" settlements already established through the court process should be left intact;[83]
  3. ongoing seasonal calculations of child support owed might be necessary and should be provided for in at least some cases;
  4. attention should be given to the impact of the system on second families and to other resulting and unintended side effects that may emerge; and
  5. high support orders may have significant effects on issues such as property division that are to be subsequently addressed, perhaps through another process (this factor should be kept in mind and addressed).
D. Proposed Reform of the Scheme

In January 1995, the British Parliament published its white paper Improving Child Support, which set out proposals for reform to the child support system originally established pursuant to the 1991 legislation. Some of the proposals resulted in changes to the formulae in the regulations. The other changes were included in the Child Support Act 1995. The changes include not only increased flexibility through the introduction of a departure system to be applied administratively, but also an element of discretion when applying the formulae to the circumstances of a case. The departure system is still under pilot and is anticipated to become law in the near future; only certain provisions of the Child Support Act 1995 have already been proclaimed (or commenced).[84]


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