|The Liability To Maintain And The Child Support Act|
|by Peter Snow LLB (Hons)|
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15 The Child Support Act To The Rescue
The Child Support Act 1991 can thus be seen as very much a reaction to the loss of revenue which will have resulted from "clean breaks" between divorced persons after the 1984 Act. No longer were thousands upon thousands of periodical payments made by former husbands to be turned to by the D.S.S. as "liable relative payments" in the Social Security Statistics. The only way in which the money lost by the D.S.S. to "clean breaks" could be recouped without changing the law to make former spouses liable to maintain one another under the social security legislation (with all the complications that would follow from serial remarriages on both sides, and without gender discrimination which would be unthinkable today), was to devise a so-called "child support" system which sought to justify ordering a parent of children who did not have care of those children to pay for the support of the other parent who did have care, as well as for the children themselves at social security rates.
The specific payment for the parent (statutorily "person") with care was brazenly fixed at exactly the same figure as the income support rate for an adult person over 25 years of age.
A bonus was that the same amount was also to be demanded from an unmarried "absent parent" for the support of the other unmarried parent: something which (with the one exception of the Social Security Act 1990: see paragraph 4.14 above) has never been part of English law before. In neither case is there any duty under the law of either parent to maintain the other where there is no subsisting marriage between them. They are, of course, not relatives and are legal strangers.
15.1 The sham "social revolution": a Treasury-driven coup d'état.
Contrary to settled law (Ashley v. Ashley  3 All ER 554) (no maintenance order should be for so large an amount that the payer cannot afford to pay it) and Stockford v. Stockford  3 FLR 58 (applied in Delaney v. Delaney  2 FLR 457: per Ward J, "There is life after divorce"), the Child Support Act formulae ignored all manner of existing debts and other commitments owed by "absent fathers", in addition to purporting to include as "child support" the undisguised amount for the person with care of the child. Ros Hepplewhite, the first Chief Executive of the Child Support Agency, described the new provisions as a "social revolution", and although the Government issued a White Paper entitled "Children Come First" (which, as a matter of law, they do not, as to maintenance), it was made clear that substantial amendment was not intended and that massive changes in the practice of imposing liability and assessing and enforcing payments for maintenance were to be introduced into the law as a fait accompli without any consultation as to the constitutional propriety of the changes concerned. Subsequently the Child Support Act 1991 has proved to be one of the most disastrous Acts we have ever had. Amending legislation, including the Child Support Act 1995 and numerous regulations, has left the "person with care" element still continuing and many injustices unaddressed with over forty suicides attributed (at least anecdotally) to hardship caused by the operations of the monstrous administrative oligarchy established by it.
15.2 The Child Support Act and the European Convention on Human Rights.
Although the European Convention for the Protection of Human Rights and Fundamental Freedoms has never been embodied into English law, the United Kingdom ratified the Convention on 8th March, 1951, and has undertaken (per Article 1) "to secure to everyone within [its] jurisdiction the rights and freedoms defined in Section 1 of [the] Convention", and Article 13 stipulates that "everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. . . ". Further, declarations made by the U.K. Government on 14th January, 1966, under Article 25 of the Convention, recognising the competence of the European Commission of Human Rights to receive individual petitions, and under Article 46, recognising the compulsory jurisdiction of the European Court of Human Rights, are still in force; and such individual petitions have been the chief avenue by which questions of U.K. domestic law have been brought before the Commission and the Court. (The Eleventh Protocol will establish a full-time Court of Human Rights, which will hear individual applications without previous hearing by the Commission.)
It is debatable whether Article 6, "In the determination of his civil rights and obligations . . . everyone is entitled to a fair hearing [etc.]", will be held to apply to determination of a right not to be required by the State to support another adult person, contrary to existing express legislation which sets out obligations of spouses to the State for each other's maintenance and has always been interpreted expressio unius to exclude any adult who is not a current spouse. But it might well be so held, and if it is, the inviolability of the Child Support Act, as primary legislation of Parliament, might be challengeable in respect of the "person with care" element of the Child Support formula.
Article 8(1), "Everyone has the right to respect for his private and family life, his home and his correspondence", subject to para. (2), ". . . no interference by a public authority with the exercise of this right except such as in accordance with the law and . . ." might well be held to be violated, in particular by the requirement in section 6 of the Act that a "parent with care" claiming income support (etc.,) is to authorise the Secretary of State for Social Security to apply for a child support assessment on that parent's behalf notwithstanding that the Department of Social Security has its own statutory procedure for recovery of benefit expenses under the Social Security Administration Act 1992, with settled case law dating from National Assistance Board v. Wilkinson under the National Assistance Act 1948. Benefit penalties upon claimants who do not comply might be similarly impeached.
It seems likely that frustration of "clean breaks" from periodical payments after divorce (often effected by consent orders in exchange for property transfers or lump-sum payments induced by section 25A of the Matrimonial Causes Act), will be held to violate Article 1 of the First Protocol: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law." This is closely bound up with the legality or otherwise of the "person-with-care" element and the question of liability to maintain where there is no marriage in existence. A former husband's "clean break" from periodical payments for his former wife ("for the joint lives of the parties") is frequently one of his most valuable possessions - and one for which he may have paid a great deal of money. Compensation now afforded by regulations made under the Child Support Act is in the form of miniscule reductions of "child support maintenance". And even where such compensation is given, there is still an element of "compulsory purchase" by the State where the "absent father" is unwilling to "sell" his "clean break". Other provisions in the Act (such as the "additional element" which provides even more money for the other parent), may likewise be questioned.
Applications under Article 25 to the Commission cannot be made until all domestic remedies have been exhausted (Article 26).
Detailed study of the case law of the European Court of Human Rights will be necessary to decide which Articles will be most appropriate.
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|Page last updated: 28 October, 2002||© Copyright Peter Snow 1998|