Pay to view ?

Pay to View

Introduction

Executive Summary

Contact enforcement measures have been the bane of divorced fathers’ lives for many, many years. The prospect, in 2011 of matching maintenance payments to contact is therefore a welcome development.

This is not to say that most divorced couples fail to reach agreement, they do, but there is a sub-set that does not and even among ‘well regulated’ divorced couples there are occasions when friction is generated when contact dates are broken.

Governments usually claim that it is impractical to link ‘performance related contact’ by the mother with Child Support (CS) payment performance by the father. As a result Child Support (CS) payments have been seen as largely separate from visitation (‘contact’), or visitation rights

No strategy has therefore been seriously considered at official level to counter an obstructive parent and consequently denial of contact brings no penalties to the mother while CS is still demanded of the father.

This is often termed “gate-keeping’ and is used indiscriminately to violate contact arrangements. Another term used is “implacably hostile” to describe a mother who will not abide by a court’s ruling. In the face of implacably hostility courts have chosen to be impotent and as a consequence fathers can no longer rely on the courts to enforce their own orders and for them to see their own children.

It has taken government a long time to acknowledge that ‘off balance sheet’ payments are made by divorced fathers even though they cannot make regular payments. This is a welcome step.

With government statistics we show how approx. 50% of fathers earn so little that their own standard of living (SOL) is slashed by making CS payments.

Child Support (CS) is a form of ‘taxation’ for fathers and represents a ‘wage’ payment to mothers. A divorced father is expected to fund his children as if he was still living with them but unlike a married father he has lost all his child-related benefits. He is not entitled to Child Benefits or Family Credits or the Married Couple’s Allowance worth an additional £2,800 pa. If he remarries his financial situation gets even worse.

Since 1995 governments have been asking – and fathers groups have been answering – what is the best way forward on the issues of contact, access, and child support (CS) ?

Every time an exit plan out of this impasse has been suggested it has been decried as too radical. Now time has finally run out. Patching up the current system is no longer a viable option.

Custody is the crux. The radical answer has to be a re-alignment of expectations and the introduction of shared parenting and shared residence. Both options have been introduced in other countries where the failures of their former system mirrored ours.

This submission will be controversial, and it is intentionally so, if we are to break out of the cycle of failure – a new approach is required and past attitudes need to be reappraised. Discussed is the option of abolishing CS altogether – given that it is uneconomic to collect and administer.

Are we content, in a liberal society to let divorced fathers ‘pay to view’ their children, or are we prepared to let them join in as real parents, and help raise them in their formative years ?

“. . . We know that one of the most significant issues for non-resident parents is when contact with their children is denied or withheld. This can lead to tension and hostility between the parents, especially where maintenance is still being collected through the statutory system.”

The two deterrents to counter contact being denied or withheld is firstly through judicial action by way of fines, withholding benefits or prison against the offending parent and secondly measures to reverse custody.

Regrettably, the judiciary has turned it back on these options on the basis that they are impractical or draconian and harmful to children’s well being while forgetting that a small number of exemplar cases and sentences is all that would be needed before the problem would fade.

“ . . . We are keen to explore approaches that allow maintenance arrangements to be considered in the round when determining appropriate contact enforcement measures.

We recognise, however, that there are challenges in linking maintenance and contact in this way, most importantly how such decisions might impact on the best interests of the child.”

The usual line of thought adopted by administrations is that it is impractical to link performance related contact by the mother with Child Support (CS) payment performance by the father.  In other words, Child Support (CS) payment has been seen as largely separate from visitation, i.e. contact. It is also rather convenient to see it in this simple way.

It is a peculiar logic to specifically bar any linkage which is usually on the grounds that the loss of paternal contact is deemed not to be in the best interests of the child. In other words, don’t punish the child for the defaulter’s sin of missing a payment. Yet maternal deprivation is increasingly viewed by some as child abuse. In this way “contact” (visitation rights) and CS are de-coupled.

Where any linkage has been applied it is, nonetheless, against the father for non-payment – if he fails to meet, for example, his payment schedule. This might result in an altered court order or a fine.

No linkage has been created regarding CS payment and permitting contact – or any default thereof. Thus obstructing contact brings no penalties to the mother and the CS is still demanded of the father and paid. This is a double standard.

“ . . . We recognise, however, that there are challenges in linking maintenance and contact in this way, most importantly how such decisions might impact on the best interests of the child.

We also recognise that it is important that this issue is considered within the context of wider reforms that are currently being progressed elsewhere in government.”

Punishment

Linking non-payment of CS with access is often used in some jurisdictions, e.g. Canada, the US, UK and Australia, to punish the defaulting parent (i.e. the father). These jurisdictions believe that the child should see both parents so when CS is not paid the state is left with limited options. Therefore, it permits continued contact but punishes the father.

This punishment usually devolve down to garnishment orders, loss of driver’s licence (or even professional practice licence), temporary confiscation of passport, etc, which are all forms of ‘internal exile.’ Arguably such measures belong more appropriately to the former Soviet regime of the USSR. Meanwhile the cause of the non-payment is not addressed.

If the cause of the non-payment of CS is due to ‘gate-keeping’ and contact violations by the mother this goes unpunished. Sanction powers are already in place to deal with truculent mothers but the courts adamantly refuse to make use of them. Part of the answer is given in the following superficial comment by Dame Elizabeth Butler-Sloss:

“Judges can fine, or jail, uncooperative mothers, but these sanctions are rarely used.”

– Dame Elizabeth Butler-Sloss (Sunday Times, Feb 17th 2002 by Margarette Driscoll)

Saving face

“Implacably hostile” mothers present a problem not just for the trauma of children but to the judiciary. Rather than confront such mothers the judiciary backs down to save face.

Under the present regime reversing custody against implacably hostile is not a simple matter because the other party is not prepared or geared up to take on a greater parental role. He may not have suitable accommodation or employment that allows the flexibility required. In addition, his income will not change as the state will continue to pay welfare benefits to the mother.

If custody were to be reversed, would the system still expect him to make his CS payments ?

However, if a shared parenting or a shared residence order were the norm and in place beforehand any ‘reversal’, i.e. a temporarily reprimand giving the mother time to reconsider her behaviour, would not cause a great deal of social upheaval for either party.

Dis-incentives

Child Support (CS) is a levy on fatherhood. It is a taxation burden placed on them for continuing to fund children without any commensurate tax concessions reflected in their Inland Revenue “personal allowance” assessment. This form of taxation brings them no rights or privileges. On the contrary it takes away rights or privileges.

For mothers, CS is a wage paid by the state and the former husband, it comes free-of-tax and it does not affect her personal allowance assessment, Child Benefits or Family Credits.

Suicides and failed suicides, once a common feature of CS demands have tapered off dramatically since the adoption of a far less aggressive posture by the CSA.

Hypothetically, a divorced father becomes a single persons again with a Personal Allowance of only £7,475 instead of the minimum addition of £2,800 for the Married Couple’s Allowance (£10,275). He is obliged to pay tax on any income over £7,475 and not (£10,275, even though he may still be paying for the matrimonial home mortgage, his own rented accommodation and the upkeep of his children.

He does not have the benefit of state benefits or allowances since all these, since the last Labour government, are not payable to women only and not men. He is not able to share in Child Benefit or use Family Credits etc to off-set his expenses.

If a divorced father were still married his child costs he would be able to share in his wife’s access to benefits and Family Credits.

We have placed the accent on ‘low income’ families since this is where most of the CSA problems arise and were it adversely bears down the most heavily.

The state and the judiciary cannot make up their minds up whether ‘divorce’ means what it says, i.e. a complete dissolution, or only a partial dissolution.

If the latter, then a divorced father should be entitled to the ‘partial’ element of Child Benefits and Family Credit etc. This was a point initially conceded in Hockenjos v Secretary of State for Social Security) Court of Appeal, 2001 (The Times, May 17th 2001, “Jobseekers’ allowance sex bias unlawful”).

“ .. . . .The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly or indirectly…” – Article 1 of Directive 79/7/EEC, and Article 3 & Article 4, and of Regulation 77 of the Jobseekers’ Allowance Regulations (SI 1996 No 207).

Poverty

The link that is made between CS and contact / visitation comes about through studies which show that more generous visitation rights actually induce greater CS compliance. Surveys also show that   “reasonable” levels of CS payments also induce greater compliance.

Wishful thinking by the state takes this flawed data and assumes that poverty among single parent families (usually a single mother household or SMH), can be alleviated by better CS collection methods. However, studies show that CS typically constitutes (at best) around 25% of the income requirements for a lone parent family, and this obviously decreases as a percentage with increasing PWC income.

It is the ‘low income’ PWC that need CS payments the most, but equally it is not uncommon for the former spouse of the ‘low income’ PWC to be unskilled and or on a ‘low income’ himself. This renders the ex-spouse unable to pay.

Statistics listed in Appendic A show a pattern that can be found in North America and Australia namely that about 2/3 of alleged ‘defaulters’ are on low-incomes, are unemployed, or debilitated with substance abuse, and/or have suffer from mental health problems (see also Quantifying below).

It was to address this that we suggested many years ago a uniform taxation and payment out of general Treasury receipts in place of a one-for-one payment contract for each SMH (single mother household).

Custody is the crux

Since 1995 governments have been asking – and fathers groups have been answering – what is the best way forward on the issues of contact, access, and child support (CS) ?

In all that time it would be fair to say governments have always asked but not listened and have thus been forced to come back to the issue time and again.

 

Any response today runs the risk of reiterating what has been suggested before and not accepted. However, the issue continues to be a running sore that another attempt seems worth while.

Expected norms

Any response today also has to conform with the expected norms of political thinking but if f we think ‘outside the box’ there is always the alternative of abolishing CSA altogether and assisting co-operation between divorced parents based on the need by one parent to secure child support and the other parent to take a more active role in his children lives.

There is a presumption today that a father is automatically responsible for his child’s welfare and that this has always been so but that is not strictly true. The following extracts are not intended to be polemic but to offer the opportunity to re-assess whether the script we work with at present is flawed and in need of a fundamental overhaul.

The mother of an illegitimate child became statutorily liable to maintain the child by section 71 of the Poor Law Amendment Act 1834. “Affiliation proceedings” was the only way in which a putative father could be ordered to pay child’s maintenance.

This was bound up with the Liable Relative principle and it is noteworthy that a husband was added as a liable relative only by section 41 of the Poor Law Act in 1927.

The National Assistance Act 1948 swept away the liability of parents to maintain children over sixteen, and of grandparents to maintain grandchildren, of children to maintain parents, and stepfathers to maintain stepchildren.

Section 42 of the 1948 Act became the only statutory provision to set out the liability of one person to maintain another. It stated that (a) a man shall be liable to maintain his wife and his children, and (b) a woman shall be liable to maintain her husband and her children. A woman’s children included her illegitimate children and a man’s children included any children of whom he had been adjudged to be the putative father.

From that point onwards, ‘the State’ assumed responsibility for the support of all such persons who were in need of support but did not have sufficient means. This tied in with the Beveridge Report (1943). The Beveridge report was opposed to “means-tested” benefits and. flagged up the dangers of creating ‘poverty traps’.

Child Support Act 1991, see Section 1(1), states that each parent is responsible for maintaining the child by ‘periodical payments’. As enacted, only fathers provided money maintenance – the mother’s contribution was actually an imaginary one.

Periodical payments are not in fact wholly spent “with respect to the child”, but include a sum expressly stated to be for the PWC (parent-with-care), whom no statute or rule of common law has ever held the other parent liable to maintain, ex matrimonium.

Rules relating to step children and ‘liable relative’ were different in the era from 1920s to the 1990s. We used to be frequently reminded that a 40% rate of fatherlessness (due to divorce) was nothing new since the 19th century saw the same rate of fatherlessness but due to widowhood. Since there was no welfare state widows in the 19th century had the alternative of seeking a new partner or remaining single Many managed to re-partner.

A return to this mode would assist the remarriage rates – as envisaged by the 1969 Act – but which have never reached their true potential.

If all CS was abolished and replaced by a Child Support Allowance for men then this would be attractive to men taking on a divorced woman and her family since it would be paid to him as step father. The same Child Support Allowance would be paid to the biological father while married and cease when divorced.

The biological father would therefore be relieved of the taxation of CS without suffering any cut in his ‘contact’ rights.

For separated fathers the toxic aspect of the present CS regime is that it fails to take into account the income of any new partner of the former wife. Figures vary but around 90% of separated women find new partners within 6 months of their former relationship breakup. It is inequitable to expect an excluded father to pay part of his income into a household that is already enjoying state subsidies and the unofficial earned income from a new (male) partner.

Quantify

The present situation is one where fathers pay child support (CS) monthly in the expectation of seeing their child. When, however, access (contact) is blocked or curtailed they have no fast recourse to a remedy, indeed, they have no remedy at any speed.

Suggestion. Would it be helpful if child support (CS) was paid monthly in arrears (or quarterly in arrears) and be performance related ? Paying in advance or concurrently limits the number of options open for countermeasures.

However, it would be wrong to give the impression that paying child support is a pandemic problem; in actuality it is confined to a tightly drawn minority.

  • Firstly, the minority is confined to the unemployed, the disabled, the under-aged and the seriously ill.
  • Secondly, the minority includes those where the paternal DNA is in doubt. In the late 1990s 16% of non-resident fathers traced by the Child Support Agency disputed paternity and in 7% of the cases DNA tests established that he could not have been the biological father.
  • Thirdly, the low-waged though gifted no-fault divorce have not the wherewithal to ever provide adequately for themselves and thus cannot at the same time be reasonably asked provide for their children.
    • Fourthly, the remaining rump cannot or simply will not pay or if they pay it is irregularly. This might be for a variety of reasons. It is this sector, we suggest, that needs addressing – not the 3 categories above where the situation is more or less out of their hands.

 

The statistics provided in Appendix A explain how many fathers are assessed for CS payment and how many pay, the numbers who do not and by reason, e.g. unemployment.

Making Contact Work  

For over a decade it has been accepted that around 40% of fathers lose contact with their children and the bond between child and father is ruptured – often deliberately and permanently.

“Too many fathers lose contact with their children after an acrimonious divorce. That is about to change.” Dame Elizabeth Butler-Sloss interviewed by Margarette Driscoll (Sunday Times, February 17, 2002).

A distinct correction we would make to Butler-Sloss’s opinion is that it is not merely “after an acrimonious divorce” but in the subsequent pursuit of contact regardless of whether the divorce was friendly or not.

The Lord Chancellor’s Department (now Ministry of Justice) promised in 2002 to respond positively and “as a matter of priority” to the recommendations contained in “Making Contact Work” but nothing was ever forthcoming.

The subsequent PSA 8 talks petered out when it became obvious that fathers’ right views were not going to be considered.

Recent Studies

A poll carried out by Mishcon de Reya in 2009 to mark the 20th anniversary of the Children Act has led its authors to state that the Children Act 1989 is “not working” despite its good intentions. The poll (of 4,000 parents and children) revealed that:

* 38% children never saw their father again once separated

* 49% admitted to deliberately protracting the legal process in order to secure their desired outcome
* 68% confessed to indiscriminately using their children as ‘bargaining tools’ when they separated
* 20% of separated parents admitted that they actively set out to make their partners experience ‘as unpleasant as possible’ regardless of the effect this had on their children’s feelings

* 19% of children said they felt used in the separation

* 50% of parents admitted putting their children through an intrusive court process over access issues and living arrangements

(NB The fatal flaw in the Children Act 1989 is that 90% of it clauses admirably apply to public law but it was never designed to deftly negotiate private law cases. We believe that if a new Children Act is ever contemplated in future it should apply only to private law cases).

This Mishcon de Reya survey replicated findings by Bradshaw & Stimson et al 12 years ago into how often did the non resident father see his children. Some of their 1997 findings in the University of York interim report are displayed below:

How often did the non resident father see his children ?
Frequency   % age Sub-total
Regularly at least once a week 47  
  at least once a fortnight 14 61
Less regularly at least once a month 7 7
Infrequently once or twice a year 10  
  1-3 years 8  
  more than three years 10  
  not at all 3 31
Source: Bradshaw & Carol Stimson et al in 1997 University of York, ESRC Programme on Population and Household Change Seminar. Policy Studies Institute, 13 March 1997.

 

Payments

The same study (Bradshaw & Stimson et al, 1997), found  that 77% of fathers had paid maintenance and those who had never paid were more likely to have been unmarried and had shorter term relationships with the mother of their child

In an earlier study (this time by Bradshaw & Millar, 1991, but also of other studies of lone mothers) it was found that only 57% of fathers made maintenance payments – later this discrepancy was discovered to be a bias in the ‘mother only’ questionnaires (it was realised that there was some deliberate ‘understating’).

One would have thought that given the evidence that ‘generous’ contact and ‘shared residence’ both  results in higher levels of CS compliance, and on a more regular basis, government would rush to adopt this option – but it has not.

Bradshaw & Stimson’s study found that the majority of the fathers gave “informal support” [money] and they gave more if they were not paying maintenance regularly (but 28% of fathers in their study had never paid CS and had never given informal support – see ‘Quantifying’ above.

The review has rightly picked up on the fact that this ‘informal’ paying over of money to the mother was not taken into account due to the rigidity of the CSA rules.

Resistance

All the time fathers’ groups were pushing hard for more contact and for the courts to enforce contact, women’s groups were arguing against it.

There seems to have been 2 or 3 reasons for this pushback; one was the fear of losing control of the children and the custody situation; another was the fear of losing of money; and the last was the claimed fear of spousal abuse. 

The first of these – the ‘gatekeeping’ phenomenon – has been extensively written about in the US and a summary is not required here. However, if clarification is sought, a brief overview can be found in Appendix B.

The rational for the second appears to have been that in sharing more of the child with the father, or worse, a shared parenting agreement the state-sourced income paid to the mother would decrease.

The third obstacle, namely fear of spousal abuse (domestic violence), has been exploded both by new legislation and measures altering police procedures. Claims of the potential for child endangerment were totally discredited when Justice Nicholas Wall’s published his 2006 report into the claims made by Women’s Aid against fathers being given contact. Of the 29 cases Women’s Aid listed none were found to have any linkage between contact, fathers and court orders. Resulting enquiries triggered by Women’s Aid’s claims revealed that it was not the fathers who presented a danger to children but the mothers (e.g. in terms of serious abuse, neglect, homicides etc). More details can be found at Appendix C.

Possible solutions

In the final analysis custody is the one single item that will solve the overwhelming majority of disputes because:

  1. If one parent has custody and the other does not, then an imbalance is created.
  2. If one parent has unlimited access time with the children but can veto or interrupt the other parents access time a master-and-servant relationship exists.
  3. If one parent enjoys the apparent protection of the courts and the other parent feels frustrated by the courts then the imbalance is exaggerated.
  4. If one parent feels able to flaunt court orders while the other parent knows they will incur sanctions for disregarding a court order, another imbalance is created.
  5. If there is a presumption or unspoken assumption that mothers will gain always custody and fathers always be denied it a recipe for conflict has been written.

 

The remedy put forward by fathers groups to unblock what is often no more than an ideological log-jam, is shared parenting. This has often been decried but the criticism leveled at it reveals that its opponent have not fully understood what shared parenting entail and what varieties are available.

Despite its successful adoption in a variety of counties, e.g. Sweden, Australia, Belgium and some US states, and its ability to be implemented in a variety of subtle versions, the official view in England has historically been hostile.[1]

Rebuffs

In Oct 2002 the Coalition for Equal Parenting (CEP) met with Amanda Finlay, Sally Field and a LCD team to press for a fuller implementation of the 1989 Children Act. Over the previous months CEP delegates had met with LCD staff to ensure they understood what shared parenting involved. At the Oct meeting it was clear that the LCD staff still thought shared parenting was the same as ‘contact and residence’ in all but name (for a flavour of this dialogue see transcript at Appendix D).

The view of the ‘Coalition for Equal Parenting’ (CEP) in 2002 was that shared parenting was not merely the only way forward but provided a route to lower legal fees for clients and reduce governmental expenditure.

Further, if this route were not adopted the UK Treasury would face ever increasing bills for the social consequences until such time as they proved unsustainable.

Ministerial misconceptions

The most recent occasion when shared parenting looked as if it might have some chance of acceptance was in 2004. However, the pattern of apparent obstinacy and misrepresentation continued culminating in Lord Falconer intervention (July 2004), when he described dividing chiseler up as entirely different from dividing a CD collection: [2]

“There cannot and will not be an automatic presumption of 50/50 contact. Children cannot be divided like the furniture or the CD collection. It is more complex than that.”

Well, Lord Falconer, no its not. Dividing them up works very well in other countries and there is no reason why it should not work in Britain.

Lord Falconer lack of knowledge of shared parenting was revealed in his wording when he somehow imagined an exact split between both parents was intended:

 “[He]. . . rejected the idea of an exact split in contact arrangements as unworkable and not in the best interests of children”.

There is clear and unequivocal evidence that a sharing of custody and parental rights had existed prior to the Children Act 1989 and that the Act was intended to build on that basis but in actuality destroyed it.

The Law Commission in a little known paper,(Supplement to Working Paper No 96, 1985, discovered that joint custody awards were increasing in the 1980s and were especially popular in the south and midlands. [3] Upwards of 55% of all awards were joint custody, i.e. approximating shared parenting. Only in the North did this level taper off and ‘sole mother custody’ begin to predominate (see page 90). The distinct North South divide in custody settlements in the 1980s is displayed at Appendix E.

(See also an overview of Law Commission Report Supplement to Working Paper No 96, http://robertwhiston.wordpress.com/2008/10/12/12/  and “Twenty Wasted Years http://robertwhiston.wordpress.com/2008/02/05/5/


[1] See “Belgium Chooses 50/50” http://fkce.wordpress.com/2009/09/16/00031/

[2] “Divorce plan puts children first Fathers’ call for automatic 50-50 contact time ruled out”   http://www.guardian.co.uk/society/2004/jul/22/childrensservices.socialcare1

[3] Supplement to Working Paper No 96, by J. A. Priest and J. C. Whybrow,

Joint custody

Joint custody worked well and shared parenting which is an approximate equivalent or slight extension of it, promises to also work well. A Law Commission report came to this conclusion in 1988 (see URLs above).

The argument that both parents have to be ‘well adjusted’ and ‘highly co-operative’ even before considering joint custody / shared parenting is not borne out by the historical truth – nor is it borne out by contemporary examples overseas, e.g. Belgium and Australia.

“. . . By its very nature equal or shared parenting requires a high degree of co-operation between the parents and is an arrangement most often only reached between the parties privately.” – letter from Lord Irvine of Laird, 11th  March 2002

 

Those nations which enjoy a lower level of confrontation than Britain have usually adopted shared parenting as their custody basis or accepted the premise of a rebuttable presumption of equality for custody at the time of divorce.

Mediation

On the few occasions when alterations to diet of sole mother custody are discussed, e.g. Family Law Act 1996, it is often against a backdrop of mediation facilitating post divorce custody arrangements. If this option is to be revived it has to be envisaged that it would create yet another tier of the divorce industry. It should also be recalled that there were not enough trained mediators to cope with existing demand in 1995 and before the provision of the Family Law Act 1996 were abandoned.

  1. Mediation only works in those circumstances where both parents reliably know they have no automatic right or ‘guarantee’ to time or custody after divorce.

 

  1. Sometimes mediation is used merely as an extension of courts bias and prejudices (see “Stolen Vows: The Illusion of No-Fault Divorce and the Rise of the American Divorce Industry”, by Judy Parejko, 2002). [1]

 

  1. When mediation is not an option or not available, both parent have to be put in exactly the same position prior to custody arrangements being agreed. Fortunately, it is invariably found that both friendly and feuding parents still want the best for their children after divorce. Using this, a Parenting Plan can be devised and agreed. Indeed the LCD had Parenting Plans gathering dust on its shelves in 2002.

 

  1. In the alternative, some nations have insisted on genuinely mutual agreement by parents (not the narrow legal definition of mutual) to then be endorsed and validated by the courts.

 

  1. Other regimes have a technique of never closing the case file until the age of majority so that one or both parents can return the matter for adjudication.

 

  1. Yet others have a system where the de fault position is shared time and residence which can only be varied by both parties agreeing to it. The amount of shared time and residence has to be agreed by the parents and if this proves impossible and court will impose equality. This threat usually has the desired result.

 

  1. Options can include a parent’s right to demand shared or equal time / residence and this cannot be vetoed by the court or the other parent.

 

Officially, court orders for shared / joint residence should stand the same likelihood of success as any other.

“ . . . If the parties agree during the course of proceedings, an order for shared / joint residence is only one of the options available when the court considers” – letter Lord Irvine of Laird, 11th  March 2002

However, since the enactment of the Children Act 1989 the percentage of shared / joint residence awards has plummeted. There are two main causes for the fall; one is lack of judicial sensitivity towards modern family dynamics and fatherhood; the second is the often raised spectra of domestic violence which in the majority of cases is a ruse – a means to an end (see Justice Wall’s 2006 report into Women’s Aid claims).

Efforts to revive shared / joint residence have prompted the new argument that court imposed shared /

joint residence is unlikely to work. Imposing an order has never been the position of fathers groups generally and so is not relevant to the overall situation. Having experienced court imposed ‘mother custody only’ they are keenly aware of the unfairness.

The ‘imposition’ of shared / joint residence where it is clearly inadvisable would not be supported by any group. However, where shared / joint residence is applicable and is equitable to both parents there can be no argument against it

Sprawson Report

Fathers have for many years been at a severe disadvantage regarding Benefit payments when caring for their child. The first hint of this problem was a letter from Harriet Harman then Secretary of State for Social Security 1997 – 08, to Chris Smith MP stating it was “administratively inconvenient” to deliver various state benefits intended for fathers.

The department responsible for the payment of Child Benefit, in particular is incapable of dividing the benefit between the two parents where ‘shared parenting’ has been agreed and ordered. As a result the Dept pays 100% of the benefit to the mother regardless of whether the child spends 50%, 40% or 30% of its time with its father.

This bias has deterred some fathers from applying for ‘shared parenting’ orders while others have not been deterred regardless of the financial disadvantages it brings.

Over a period of very many years it finally transpired that dividing Child Benefit was an “administrative difficulty” which permitted Harried Harman to continue to discriminate against fathers. The Sprawson Report says that splitting the relevant benefits, as intended by Parliament when parents have separated, must be resisted because the government’s 1975 vintage computer system was unable to cope. Previous attempts to increase its versatility by software changes have brought traumatic chaos to the department.

The Sprawson Report identified “the Department for Work’ and Pensions s computer system”, which was first installed in 1975, as lacking “the sophistication and flexibility of more modern systems and cannot accommodate complexities [and]… is unable to process … the consequence of allowing for split entitlement” for all parents. [2]

‘High conflict’ families

A review of CS and contact would not be completer with out inclusion of this ‘new’ development. It has been the argument that shared / joint residence is unsuitable for some families, namely high conflict families, where inter-personal violence or frictions are commonplace. There will always be high conflict families but we should not let them rule the lives of the remaining 95% – 98% of divorcing families.

Jennifer Flowerdew, Brenda Neale and Carol Smart are academic researchers who have all published articles on shared parenting in legal periodicals, e.g. Family Law Association Review.[3]

Child contact with non-resident parents” by Joan Hunt & Ceridwen Roberts (Department of Social Policy and Social Work, Family Policy Briefing Jan 2004) is similarly critical.

however analysis if the research reveals sample sizes of just over 30  or around 60 in some instances,  ranging up to 126 in another instance. In some papers, for example Hunt & Roberts’ 2004   exploration, no sample size is given.

The inference is that shared / joint residence is especially unsuitable for these types of families but what is overlooked in this particular argument is that no sort of custody arrangement would be suitable. Such families are inherently volatile and it is fortunate that they represent such a small minority.

Where we would agree with Brenda Neale, Jennifer Flowerdew, Amada Wade and Carol Smart etc is in the portrayal of children as pawns in a power struggle fought by parents but rarely explain why this occurs. [4] 

If this is little more than a ‘beauty contest’ to win approval of the court it is a damaging process then the sooner shared parenting is adopted the sooner this practice will disappear.

Under the present flawed regime, which must be ended, children become pawns in a power and control-related struggle because they represent passports to key social security benefits essential if a mother is to have any reliable income after divorce, e.g. Housing Benefit and other subsidies.

In our other submissions for 2011 we again raise the ‘good enough parent’ principle first outlined to government in 2002 and why an unrepresentative and tiny group should not influence the benefits that 98% + of separating parent would like to see.

Conclusion

The first error made in 1991 was to criminalise, before the event, the non-criminal, i.e. fathers on low incomes and to treat all other fathers as potential criminals.

There was an assumption that some fathers who were not then presently paying court ordered maintenance were flaunting the system and they ‘could be made to pay.’ This made a lot of political sense and was highly useful but it failed to grasp the true dynamics.

Achieving the payment of maintenance to ‘disrupted families’ is a perennial problem, whether one goes back to 17th century church wardens, Lord Gorell’s 1912 Royal Commission, or Stalin’s  disastrous matrimonial experiments of the 1920s.

The common theme to all has been an unravelling of the matrimonial ties that bind together the social fabric. Indeed, the problems we find ourselves addressing today, in Jan 2011, have their origins in 1969 when there was another sequel to the unravelling of matrimonial ties.

 

The second error made in 1991 was to assume a state-sponsored, nationwide organisation (with all the rigidity and insensitivity that implies) could successfully replace the previous system.

 

The prospect of defaulting to a position where each divorcing couple privately negotiate the best deal they can, takes the state out of the equation and saves a huge amount of time and money.

The stated purpose of the CSA was to recover all the money owed to PWC and relieve the burden on the Treasury. This was always going to be an idyll, a Shangri-La and the set up costs of £1 billion should have brought this home to any advocate.

The virtues of no state and no CSA involvement should be considered. If, as we are told, the majority of couples come to their own custody arrangements then the less fraught question of what each can afford to contribute out of their incomes will be governed by common sense (not a faceless bureaucrat).

For those fathers who prefer / want only weekly contact the amount paid will obviously have to be greater than for a father who seeks shared parenting structure (with a commensurate fall in running costs / child care costs to the mother).

The only role left is for the courts to be asked to step in when, a). agreement as to the amount cannot be reached, or b) .where payments are irregular, or c). where the ex-wife has found a new partner, or the ex-husband, weekly payments can be reduced. There is no need for a CSA.

The state, having created the climate for child maintenance problem to flourish should be responsible enough to take on the liability it has created. It should alter the climate

If the benefits paid to a divorced mother are currently paid out of general taxation why not go one step further and assume total responsibility ? If needs be create a 0.1% taxation for divorced fathers payable until the child’s 16 birthday, to cover government’s costs of assuming the overall enhanced benefit mantle.

The CSA recovers a fraction of the money it believes is due, so why waste million of pounds every year chasing amounts that will never be recovered ? Why not incentivise the situation instead ?

The acknowledgement of informal / off balance sheet payments by the former husband is a step in that incentivising direction. Informal payments plus enhanced benefits paid out of general taxation, as outlined above, will have the added bonus of lifting many divorced single lone mothers out of poverty (NB. single fathers-with-care seem able to earn enough money not to resort to the panoply of state benefits).

These measures will aid the standard of living of the ex-wife and the children (or lone father with care) and with the threat of sanctions removed, payments may even become more generous and frequent.

Overly-generous CS serves only to perpetuate the poverty trap for single mothers as they have neither the incentive to better themselves or be a better role model for their child.

The fundamental solution confounds previous political thinking. It is to make child support ‘economically neutral’ and thereby remove all perverse economic incentives that naturally tend to inhibit a solution.

End


[1] See also “Strengthening Marriage Through Divorce and Custody Reform”, by Prof Stephen Baskerville, “The Family in America”  Volume 18  Number (5th May 2004)

[2] Sprawson was made head of the Child Benefit Policy section at the Department for Work and Pensions (“the Department”) in 1999. His role was “to manage the development and maintenance of policy on Child Benefit and Guardian’s Allowance, and to give advice to ministers on those matters” (re: Hockenjos case above)

See also: “Fireman Loses First Round in Child Benefits Challenge”, Firefighter Kevin Barber today accused the government of “unfairness” as he lost his High Court test case battle over child benefits. A judge rejected his claim that the money should be split equally between separated couples when father and mother played an equal role in caring for their children. Judge ruled that the 1975 computer code legally deprived the fireman of equal treatment.

[3] ‘Shared Residence: Not a magic solution’, Flowerdew, Neale & Smart 2004. http://reporter.leeds.ac.uk/493/s3.htm . See also http://www.canadiancrc.com/articles/University_Leeds_Shared_Parenting_DEC03.htm (full text). 

[4]   ‘Children ‘used as pawns’ by parents’, Dr Bren Neale  December 20, 2004. Yahoo News

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