2. The Mad Hatter’s Tea Party

`We quarrelled last March–just before he went mad, you know–’ (pointing with his tea spoon at the March Hare) `–it was at the great concert given by the Queen of Hearts, and I had to sing …’:

Debate in the UK House of Lords on May 13 2008 on shared care and child support in the new “Child Maintenance and Other Payments Bill”

Source: Lords Hansard text for 13 May 2008 (pt 0005)

Debated paragraph from the “Child Maintenance and Other Payments Bill” (pages 71-72):

Schedule 4 — Changes to the calculation of maintenance

Shared care

6 In paragraph 7(2) (circumstances in which decrease for shared care applies in cases where child support maintenance is payable at the basic rate or a reduced rate), for “If the care of a qualifying child is shared” substitute “If the care of a qualifying child is, or is to be, shared”.

7 In paragraph 8(2) (circumstances in which decrease for shared care applies in cases where child support maintenance payable at a flat rate), for “If the care of a qualifying child is shared” substitute “If the care of a qualifying child is, or is to be, shared”.

8 (1) In paragraph 9 (regulations about shared care), the existing provision becomes sub-paragraph (1).

(2) In that sub-paragraph, before paragraph (a) insert— “(za) for how it is to be determined whether the care of a qualifying child is to be shared as mentioned in paragraph 7(2);”.

(3) In that sub-paragraph, after paragraph (b) insert— “(ba) for how it is to be determined how many nights count for those purposes;”.

(4) After that sub-paragraph insert— “(2) Regulations under sub-paragraph (1)(ba) may include provision enabling the Commission to proceed for a prescribed period on the basis of a prescribed assumption.”

Amendments by Lord Skelmersdale and Baroness Verma:



Page 71, line 38, leave out paragraph 6


Page 71, line 42, leave out paragraph 7


Page 72, line 3, leave out paragraph 8

The debate in the House of Lords on May 13 2008:

Lord Skelmersdale (Shadow Minister, Work & Pensions; Conservative) moved Amendment No. 15:

My Lords, I shall also speak to Amendments Nos. 16 and 17. The current formula for the payment of child maintenance provides for a reduction in child maintenance if the non-resident parent has overnight contact. The amount payable is decreased by one-seventh for one night a week, by two-sevenths for two nights a week, by three-sevenths for three nights and by half for four nights or more. For each night, therefore, that a child stays with a non-resident parent—worked out, incidentally, by an average over a 12-month period—child maintenance liability is reduced by one-seventh. In practice, this means that, unlike under the rules that applied in the family courts, there is a strong financial link between the amount of contact and the amount of maintenance paid. Having greater shared care means reduced child maintenance liability for the non-resident parent on the one hand and less child maintenance for the parent with care on the other. Predictably, this can lead to disputes over contact arrangements, particularly where there is already conflict and mistrust between parents.

I seek in these amendments to ask the Minister whether he believes that the Bill addresses the real issue, because I do not think that it does. For me, the real issue is that these provisions encourage parents to associate the level of child maintenance payments with the amount of staying contact—for want of a better expression—that a child has with the other parent. The parents are placed in immediate financial conflict with each other, with the parent with care tempted to minimise overnight contact so as to maximise their maintenance payments and the non-resident parent seeking to maximise contact so as to minimise the child support maintenance payments. As such, there is a complete manipulation of what should be considered the natural contact arrangements between a parent and a child.

I am told that contact applications at court are often less about what contact should or should not take place and more about the impact on either parent of child maintenance payment responsibilities. The courts have always strongly and quite rightly discouraged the association of child maintenance payments with contact. The present shared care provisions completely undermine this principle and encourage both mothers and fathers to connect these two issues. It is inconsistent to state that a parent’s obligation to maintain a child is not dependent on whether they have contact and then to provide in legislation, as we are, a provision that encourages parents to limit the amount of the contact that a non-resident parent has with a child in order to maintain a certain level of financial support.

It is the children who are caught in this financial conflict between their parents and often their future relationship with a parent is detrimentally affected due to the argument over child support payments, which the legislation so inextricably links to contact. The current and proposed shared care provisions allow the parents to be motivated by financial, not welfare, considerations, which is not conducive for the family unit—a dispersed family unit certainly, but still a family unit of a sort. This detrimental impact on the family and the child outweighs any so-called benefits provided to either the parent with care or to the non-resident parent and, unless there is significant shared care, it should not impact on maintenance payments.

On this basis, I should like to hear the Minister’s response to the suggestion of raising the shared care threshold, which would reduce the current financial conflict caused between the parents and children and allow the parents to deal with co-parenting without having to consider financial incentives for one or either parent. I beg to move.

Lord McKenzie of Luton (Parliamentary Under-Secretary, Department for Work and Pensions; Labour)

My Lords, I thank the noble Lord, Lord Skelmersdale, for moving this amendment, which gives us a chance to talk a little about shared care. I should say up front that I disagree with his analysis. We have always been clear about not linking contact with maintenance. It would be wrong to link those inextricably. Shared care arrangements do not do that.

Notwithstanding the fact that there is no inextricable link, which is right, the opportunity to have some financial adjustment to recognise the cost that a non-resident parent might incur in having contact with their children is reasonable.

The noble Lord’s amendment is more to do with the new arrangements in the Bill for the administration of shared care decisions. Currently it is often difficult for agency staff to decide cases where care is shared because the level of care undertaken by the non-resident parent is disputed, or because evidence provided by the parents is of poor quality or conflicting. There are also many cases in which parents have only recently separated and have yet to decide on care arrangements for the children, so paragraphs 6 to 8 are intended to improve the administration of such cases. We know that as many as a fifth of cases on the 2003 scheme have an adjustment for shared care, so these issues affect a significant proportion of the case load. It is a significant issue.

Paragraphs 6 and 7 are intended to allow the commission to look forward as well as backwards in deciding what shared care reduction will be appropriate. This means, for example, that if both parents agree about the level of shared care that is expected, the commission can easily make an assessment based on that agreement. This will usually be administratively more straightforward for the commission than the current position, which requires the agency to obtain and assess hard evidence about the level of shared care in the past period, which is often as long as a year.

Paragraph 8 will provide regulations that allow the commission to make a maintenance calculation on the basis of an assumption as to the level of shared care. This will apply only when parents agree to share care but have not yet agreed on its frequency and there is no current or past pattern of care on which the decision can be based.

The detailed rules will be set out in affirmative regulations, so there will be an opportunity for further debate on this subject and for the commission to consider them. However, our current intention is that the assumption will be that care is shared for an average of one night a week, which is the level required to prompt the lowest reduction in maintenance—a seventh. That is the most common level of reduction allowed for shared care and the assumption will remain in place for a period of up to six months. If, during or at the end of the six-month period, an agreement on the frequency of care has been reached, that will be used as the basis for an ongoing adjustment to the maintenance calculation. If no agreement has been reached at the end of the six-month period, evidence of shared care from that six-month period will be used.

If Amendments Nos. 15 to 17 were accepted, the improvements provided by these provisions would be lost. It would also mean that recognition of shared care in certain cases could potentially be prevented until the first annual review of the case. We are fully aware that shared care is a contentious issue that attracts strong views. However, the consultation on the White Paper revealed no consensus among stakeholders for any change. Therefore, our current intention is that the shared care rules should remain largely unchanged. However, we will continue to examine the rules regarding cases of equal shared care and we wish to involve the commission in deciding the best way of proceeding.

Perhaps I may emphasise to the noble Lord that we had a lot of discussion with stakeholders about what the appropriate approach to shared care should be. Some stakeholders who represented parents with care said that there should be no adjustment, whereas other parents said that there should be much more significant adjustments. In the end, we determined fundamentally just to carry forward the provisions that have broadly operated since 2003.

Equal care will be kept under review, in particular, although I think that it is a small percentage of the total case load and it is quite possible that, in these cases, voluntary agreements are entered into in any event.

These matters can be dealt with by regulation in due course, but the particular changes that we are making are administrative to make it easier to enter into shared care arrangements. The current broad arrangement for shared care is not unreasonable. Because there was no compelling evidence or submissions that took us in a different direction, that is where we ended up. However, I hang on to the point that I started with, which is that we do not wish to preserve in the Bill or as part of the arrangements the linking of maintenance and contact. Nevertheless, we need to recognise that contact involves costs and there should be a reasonable reflection of that. I hope that that will satisfy the noble Lord and he will feel able to withdraw the amendment.

Lord Skelmersdale (Shadow Minister, Work & Pensions; Conservative)

My Lords, clearly the Minister, his colleagues, the relevant section of the department and the CSA do not see this as a problem. However, he has not argued against my basic thought.

It is inconsistent to state that a parent’s obligation to maintain a child is not dependent on whether they have contact and then to produce a provision that encourages parents to limit the amount of contact a non-resident parent has with a child in order to maintain a certain level of financial support. There is a basic inconsistency.

I should perhaps have said that this is a probing amendment; I take the chiding that he gave me earlier on the placing of an amendment in the Bill, but it was a hook on which to hang my thoughts and statements.

There is a question that ought to be answered at some point. It is not appropriate to answer it today, but it would be helpful if the Minister could write me one of his compendious letters on the subject before the next stage of the Bill.

Under the current regime, I understand that there is the one-night trigger point, which starts from the very beginning of the maintenance assessment. He said that, if agreement is subsequently achieved, the changes will be made in consultation with the stakeholders. I think that I remember his words correctly, but he can check his notes. If that is so, there must be some record somewhere of how often that has been achieved. I would like to know the answer to that.

5:15 pm

Lord McKenzie of Luton (Parliamentary Under-Secretary, Department for Work and Pensions; Labour)

My Lords, I did not mean to chide the noble Lord earlier; if it came across like that, I offer my apologies.

A number of issues arise. We are carrying forward the one-seventh, two-seventh etc formula because it is the adjustment that would be made to maintenance arrangements. The administrative arrangements are about trying to determine whether we are talking about one, two or three nights a week. To date we have done that simply by looking back over what has happened in practice, generally over a period of a year, and sometimes over a more representative period. However, it is sometimes the subject of quite a lot of dispute, certainly when someone is close to the thresholds. The administrative arrangements seek to bypass some of those arguments at an early stage. The adoption of the one-seventh approach is our current thinking in circumstances where both parents agree that there is to be shared care but have not established a pattern or settled on what it will be. We want to reflect something in the assessment right from the start and the sensible way to achieve that is with the one-seventh calculation. It is the most common adjustment made when shared care is undertaken as part of an arrangement.

On ongoing arrangements with stakeholders, as we have discussed, they have and will continue to have a wide range of views. There is an issue particularly about equal care and whether any adjustment should be made for it. That is something that the commission would particularly like to focus on at an early stage and keep under review, rather than some of the other issues around the formula.

I hope that that has helped the noble Lord. I acknowledge that, if there are financial adjustments as a consequence of maintenance arrangements, they might drive behaviour one way or the other, but it could equally be argued that making some adjustments to maintenance in order to recognise part of the impact of costs will encourage non-resident parents, so it could cut both ways. I do not think that we have a huge amount of evidence, but I will write to the noble Lord. I do not think that these arrangements are particularly driving behaviours of any kind, although they are certainly drivers of disputes that arise at the margins of the threshold. We are trying to cut some of those down and possibly—this is part of the current thinking—to have fixed-term arrangements for shared care just as we have for the basic assessment. However, if it would help the noble Lord, I would be happy to try to encapsulate this in a note to him and, I hope, to clarify these points.

Lord Skelmersdale (Shadow Minister, Work & Pensions; Conservative)

My Lords, I am extremely grateful for the additional comments from the Minister. Of course I am going to withdraw the amendment, as I am sure he knows well, but, when he writes to me encapsulating in perhaps more considered English what he has just said, it would be extremely helpful if he could tell me what percentage of cases with shared care have actually been altered under the current arrangements with the CSA. That would be a useful piece of research. He may not be able to do it in the first instance and, indeed, the CSA may not currently have the figures, but I think that CMEC ought to gather them, because I see this as a problem. The noble Lord talks about problems “at the margins”, but I think that they are much more than that; the problems are more likely to be at the centre.

Lord McKenzie of Luton (Parliamentary Under-Secretary, Department for Work and Pensions; Labour)

My Lords, I want to make sure that I understand the noble Lord. Would he like an analysis of how many times a shared care arrangement is in place and whether it is a one-seventh or two-sevenths arrangement, which is subsequently changed? I suspect that that would be a horrendous task, because part of the problem, as I have indicated, is that a lot of disputes arise over whether the one-night or two-night threshold has been reached and there are constant changes. Also, for the analysis to be helpful to the noble Lord, he needs to understand where the arrangement has changed and why. It may be that there is a genuine desire to have fuller shared care arrangements or—this is the point that I think the noble Lord is pursuing—this may be driven by someone trying to gain monetary advantage. I think that the analysis will be very difficult. I shall take the point away, but I suspect that on that part of the investigation I shall be unable to satisfy him in his request for information. However, we will see what we can do.

Lord Skelmersdale (Shadow Minister, Work & Pensions; Conservative)

My Lords, I am extremely grateful. The Minister is right that the purport of my request is to get such analysis as it is possible to produce. I accept, of course, that if such an analysis is produced it will not prove the Minister’s or my argument 100 per cent either way, but at least it will be a guide and perhaps we could come back to this on a later occasion. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16 and 17 not moved.]

End of excerpt