Wednesday, 20 February 2008.
The Committee met at quarter to four.
[The Deputy Chairman of Committees (Lord Colwyn) in the Chair.]
Child Maintenance and Other Payments Bill
Clause 33 [Registered Maintenance Agreements: Scotland]:
192: Clause 33, page 34, leave out lines 6 and 7
The noble Lord said: The amendment is bracketed together with Amendment No. 193. I confess and apologise that the amendments do not even deserve the definition or description of “probing amendments”; they are random deletions. I knew in my heart that something was wrong with Clause 33, but I could not work it out. I therefore just took out some text to remind me that something was to be done about it.
I hope that the Minister will reflect on what is still a cause for concern north of the border. I acknowledge that Clause 33 is a bona fide attempt to accommodate minutes of agreement into the Bill system, but a minute of agreement is fundamentally different from maintenance orders, which are a device used in the Scottish jurisdiction and the Scottish courts. I had recourse to them when, in a previous incarnation, I was a family solicitor in south-east Scotland. They are quintessentially different because they are bilateral; they require no one’s interference and input other than that of the two parties involved. That is different from a court order, which is imposed. There may be an argument; there may be a debate; there may be a consensus sought and achieved in the arrival at a maintenance or court order, but it is ultimately handed down to the parties by the courts. A minute of agreement as currently practised north of the border is quintessentially different also because it is summarily enforceable. If we had minutes of agreement throughout the rest of the United Kingdom, abolishing Section 6 of the Child Support Act 1991, as the legislation does, may be made easier to track and stay on top of.
We need to think more clearly in Clause 33 about the difference and why there is still friction between the child support and maintenance system and the family law system in the courts in Scotland. That is demonstrated by reference to two cases, of which the Minister will have been made well aware, I am sure. Resolution, Ms Kim Fellowes and her confederates north and south of the border will have made him aware that in the Isles case—commissioner’s case No. CSCS/5/97 1999, in Family Law Reports 37—a decision was handed down by the commissioner where he deemed that an extract of a minute of agreement registered in the Books of Council and Session constituted a “maintenance order”. That is fundamentally wrong in Scots law terms. If anybody is in any doubt about that, they should look at another case from 2004; namely, Temporary Judge Coutts, 2 July 2004 in the Outer House of the Court of Session, Woodhouse v Wright, Johnston and Mackenzie. Mrs Woodhouse was obliged or felt it necessary to sue her solicitors on the basis that they gave her duff advice. The duff advice was found by Temporary Judge Coutts to be perfectly reasonable in the circumstances, and it stemmed from the fact that the commissioner in the earlier Isles case had made the deeming of a minute of agreement on all fours and in all points with the effect of a maintenance order. That inelegance obtains. Of course, it is possible to go to the Inner House of the Court of Session and get that changed. Temporary Judge Coutts, when he made the decision in 2004, said that,
“no decision about the competence of an Outer House judge to overrule a decision of the Social Security Commissioner”,
was in play in his consideration of that case. He was careful not to get himself involved in trying to overrule the commissioner in the Isles case; he could not, anyway. The only court that is competent to do that in Scotland is the Inner House of the Court of Session. It would need to be a Paul McCartney case to get to the level where, unless you were not in your right mind, you would take a decision of that kind to Inner Court of Session jurisdiction to try to get the decision taken in the Isles case overturned.
This is difficult territory and, with Clause 33, the Government have been genuinely trying to reconcile it in a way that makes sense. It is above my pay grade by a mile. All I can say is that some people north of the border in the Law Society of Scotland are looking carefully at this. I think they would like a minute of agreement registered in the Books of Council and Session and the sheriff court books to be removed from the maintenance orders listed in Section 8 of the 2000 Act—actually, it is not listed there; it was added by virtue of the Isles decision. Minutes of agreement should be considered as sui generis law in Scotland, so that in the longer term they can be allowed to continue to play a part, unfettered and unthreatened by the CSA or CMEC provisions in the Act. That may be a policy decision with implications that need to be thought through carefully.
In spite of people’s best endeavours in trying to address the problem, it still is not quite right. That is the advice that I am getting from people who know far more about this than I do north of the border. The sensible thing might be for me to act as a broker and get the specialists who are making the arguments to me to talk to the specialists in the Minister’s office and the Bill team, to see whether we can make some reconciliation so that the two systems work more sweetly together than at the moment.
The point has been made to me that provisions for non-resident parents being self-employed—a difficult category—are particularly conducive to a solution through a minute of agreement in Scotland. It is a long time since I practised law, but it has also been pointed out to me that there is now a widespread adoption of collaborative law, particularly in the court system in Aberdeen. In my day, law was always practised in the sheriff court in an adversarial context. Maybe the new systems of law are being developed to some effect and purpose in family cases to resolve things in a less adversarial way. If that is the case, it would be good to know and recognise that in the proceedings of the Committee.
We are coming on to clauses that talk about pilot projects. This is straight off the top of my head, but CMEC might consider as an early pilot project developing the use of minutes of agreement that obtain north of the border in a way that has not been foreseen to date. That may be something for the future on which we need further discussion.
My purpose in tabling these rather crude, slash-and-burn amendments—they make no sense on their own—was to raise a second-order but nevertheless important set of circumstances, on which we still have some development work to do if we are to be safe in the knowledge that, when the Bill is enacted, it will continue to serve the legal profession and its clients north of the border in the way that we hope and expect in future. I beg to move.
Although Clause 33 is a peculiarly Scottish clause, the fact that a minute of agreement that has been in force for fewer than 12 months will exclude a person in Scotland from making an application for a maintenance calculation reflects on the discussion that we had earlier, on whether one year was the correct time in which to have the ability to overturn a court’s decision. To that extent, it applies equally to England as to Scotland.
I do not want to repeat the arguments that I adduced last time, but it has been put to me since that one way to solve this problem would be that once a court has become active in a divorce case, for example, any alteration of that court’s decision should not go to CMEC at all but continue with the court. Another way in which to solve it, which was the one that I adduced earlier, was to have a much longer period than the one year stated much earlier in the Bill, which Clause 33 reinforces. I am beginning to come round to the second solution rather than the first.
I thank the noble Lord, Lord Kirkwood, for the amendment, which led to rather a broad discussion on the subject. I start by clarifying that Clause 33 is there to clarify that minutes of agreement for periodical child maintenance made on or after 3 March 2003 and registered in the Books of Council and Session or the sheriff court books are to have the same status as maintenance orders made on or after 3 March 2003 under Sections 4(10) and 7(10) of the Child Support Act 1991. In prior discussion there was some confusion over whether that was the case. The noble Lord said that court orders were imposed, but court orders for child maintenance are not imposed, because they are consent orders and represent agreement between the parents. That is the parallel that we seek to identify here.
As we discussed in a previous sitting, the existing 12-month rule applies when parents have a registered minute of agreement made on or after 3 March 2003. The 12-month rule has two purposes. When agreement between parents breaks down, it provides a swift and readily available route into the commission so that children are not left for considerable periods with either no maintenance or inadequate arrangements. It also encourages agreements that contain levels of child maintenance broadly consistent with the amount calculated under the statutory scheme. We do not wish to restrict any effective maintenance arrangements to any particular period. However, if things go wrong, or parents decide that another type of arrangement would be more suitable for their children, we believe that they need a readily available route into the commission. That is why we do not think that the first proposition of the noble Lord, Lord Skelmersdale, about keeping it in the court is the right way. Children must not be left for periods of time with either no maintenance or inadequate arrangements, nor should we lock parents into agreements that are no longer working.
It is true that registered minutes of agreement have many advantages but, if circumstances change and the original agreement needs adjustment, difficulties may arise. Some of those agreements can have change embedded in them, although that is not the case in every situation. If parents cannot agree, there are limited circumstances in which they may apply to the court to vary the financial arrangements and, in the case of parents who were never married or in a civil partnership, the opportunity for variation is often severely restricted. The 12-month rule gives time for agreements to bed in and work, which is why we think it the right period, but allows intervention by the commission to keep maintenance flowing to children if the agreement breaks down, and therefore puts parents with registered minutes of agreement on the same footing as any other separated parents.
I hope that that has dealt with the kernel of the proposition and will help the noble Lord to withdraw his amendment. I shall reflect on some of the wider points that he raised and perhaps return to the matter in due course.
I have two things to say about that. Circumstances in Scotland are different in a number of respects. One of the most fundamental is that the Scottish courts, unlike the English, are accustomed to doing maintenance calculations—at least they did in my day. I may be talking slightly out of turn because it is a long time since I practised in the courts. The family law situation in Scotland is a much smaller jurisdiction anyway—there is a much smaller group of practitioners and the scale is also different, although I understand that court orders are administered in the same way in terms of how the court handles them.
My main plea is to have further discussions about how registered maintenance agreements are conducted. If that could happen between now and Report I would happily settle for that. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 193 to 195 not moved.]
Clause 33 agreed to.
Clause 34 agreed to.
Clause 35 [Additional special case]:
196: Clause 35, page 34, line 43, at end insert—
“( ) The Secretary of State may by regulations make provision for the costs incurred by both parents in caring for the child or children.”
The noble Lord said: This is a probing amendment which I hope the Minister will at least consider between now and the next stage of the Bill. Again, it is tempting to return to earlier discussions or even make a Second Reading speech, but I shall resist that temptation. However, it is only fair to put on the record that, during the long discussions that we had on the subject of sanctions, I came to the conclusion that it is probably a mistake to have “enforcement” in the title of the commission. I therefore give notice that on Report I will move an amendment to that effect.
Having got that off my chest, I say that this amendment proposes the obverse to sanctions and is designed to probe the shared parenting agreements that are not altered in any way by the Bill as far as I can see, although Clause 33 allows for a new “special case”. What happens now is that maintenance is decreased by one-seventh for each day up to three that the child stays with the non-resident parent and this raises to half for four days or more—that is a précis of the situation.
The problem 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 phrase—that a child has with the other parent. These parents are placed in immediate financial conflict with each other, with the parent with care possibly attempting to minimise overnight contact to maximise maintenance payments, and the non-resident parent seeking to maximise contact to minimise the child support maintenance payable. As such, there is a complete manipulation of what should be considered to be the natural contact arrangements between a parent and a child.
In court cases, contact applications are often less about what contact should or should not take place, but more about the impact of child maintenance payment responsibilities on either parent. The courts have always strongly, and quite rightly, discouraged the association of child maintenance payments with contact. The present shared-care provisions completely undermine that principle and encourage both mothers and fathers to connect these two issues. It is inconsistent to state on one hand that a parent’s obligation to maintain a child is not dependent on whether they have contact, but on the other hand to provide in legislation a provision that encourages parents to limit the amount of contact a non-resident parent has with the child in order to maintain a certain level of financial support.
The children—it is them that we are all concerned about—are caught in the middle of the financial conflict between their parents and often their future relationship with a parent is detrimentally affected by the argument over child support payments, which are now so inextricably linked 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 unfortunately disparate family unit. This detrimental impact on the family and the child outweighs any benefits provided to the parent with care or the non-resident parent and, unless there is significant shared care, should not impact on maintenance payments. Why not raise the shared-care threshold? That would reduce the financial conflict currently caused between the parents and children and allow the parents to deal with co-parenting without having to consider financial incentives for one or other parent. I beg to move.
The noble Lord, Lord Skelmersdale, has raised an issue. I agree with him that in some cases parents may seek to maximise or minimise contact in order to affect their maintenance payments, and some non-resident fathers would be concerned that by seeing the child only during the day, when they may incur the cost of going to McDonald’s, the zoo or whatever, they would get no abatement of their maintenance because the child is not staying overnight. I accept that in some cases there can be a problem, but the noble Lord’s solution may be worse than the current situation. If we wish to encourage contact, it is undoubtedly right that as far as possible the child or children stay with the non-resident parent. Conventionally, that may be every other weekend and part of the school holidays. That means that the non-resident parent has to have enough space, the extra bedroom, the bunk beds, the change of clothes, the additional food, the pizzas and whatever that he will need to look after those children. The costs are incurred whether the children effectively stay four nights a week or every other weekend. There is an ongoing cost. Therefore it seemed right to abate some of the maintenance that he would otherwise pay, because he is incurring continuous costs however many nights the children stay. The question is then about what the appropriate abatement is, given that some of the money that he would otherwise pay to the parent with care for the maintenance of the child should be abated because he is incurring additional costs, even though her costs continue to flow. There is not a direct trade-off that by him spending money, she saves it; they both incur costs.
It was thought inappropriate to go for the day, because there were the questions of when it started and finished and whether we started having bills of fare or tick-offs for cafeteria lunches as opposed to a picnic in the park. We went for overnight accommodation. My fear is that if we go back, as the noble Lord suggests, to a higher hurdle—104 nights a year or even higher—that will reduce the amount of contact the non-resident father is willing to engage in. From experience, every other weekend plus some of the holidays captures that 52- to 104-night window. If the noble Lord is saying that the non-resident parent must have the equivalent of at least 104 nights—two nights a week through the year—we will be asking many non-resident parents, often not in affluent circumstances, to incur real costs in having an extra bedroom in the flat, extra furnishings and so on with no abatement towards maintenance. In which case, unless there is already a very strong attachment, some of those non-resident parents will say, “Why bother? I’ll just take them out during the day and won’t have them to stay overnight”. That may suit them, but if we want to ensure the bonds—particularly for young boys; if the parent with care has a series of new boyfriends it is very important that the boy continues to have contact with his natural father—I do not think that is helpful. While the noble Lord is right to say that there can be manipulation of the situation, the Government’s proposals, which largely reflect the existing situation, are the best achievable in circumstances where there are conflicting pressures and problems about who pays for what and when.
I thank the noble Lord, Lord Skelmersdale, for the amendment. The clause to which he attached it focuses on something slightly different from the issue of shared care arrangements. I shall deal with that first and then try to pick up some of the points made about shared care.
Currently, there are no specific measures to cater for cases where there is split care. Where both the mother and father apply for maintenance, the Child Support Agency makes two maintenance calculations, and maintenance is collected from both parents. That is a situation in which one parent has one or more of the children but the other parent also has one or more of the children, so they are both parents with care and non-resident parents. At the moment two calculations are done. This is clearly not the best use of resources. It also leads to complaints in cases where the agency struggles to collect maintenance from one parent, particularly if they are the one with the higher liability.
Clause 35 will allow for the offsetting of maintenance liabilities between the two parents, so that only the parent with the highest liability will actually make a payment. This will be a more efficient use of resources as there will be only one maintenance liability to collect. It will also make more sense to the parents.
This measure is part of a package designed to simplify the assessment process in the future scheme. However, if the costs incurred by both parents in caring for their children were to be taken into account in the maintenance liability—whether there was split care as provided for by this clause or otherwise—that would lead to more complexity, which would contradict what we are trying to achieve. The process of working out maintenance is not designed to take account of the individual costs of raising children. It would be extremely difficult to arrive at such a figure which takes account of individual circumstances; for example, differing levels of income.
Amendment No. 196 would also create scope for disputes between parents. For example, they might not agree on the amount of money the other parent said they were spending on the child. They would also have to provide evidence of such costs, and experience has shown the difficulties currently experienced by parents when trying to agree what level of shared care is being carried out.
I can return to the issue of shared care, which we debated in a previous sitting. My noble friend Lady Hollis is right that the formula that we are taking forward is the current arrangement. There are some administrative changes to it to make it less likely that there will be a whole flow of changes of circumstances which have to be taken into account. We arrived at the conclusion by having extensive discussions with stakeholders about what alternatives there might be as regards reflecting shared care. Basically there was no consensus, but a whole range of views. On balance, we thought that there was no imperative to change the current arrangements, which is why we are where we are.
My noble friend is again correct—it is right to reflect that there are clearly some costs and provision of facilities involved if shared care is to be encouraged. I do not think raising the threshold is the right way to proceed. Administratively, what we are doing is trying to get parents up front to agree the band of shared care that would operate, so that that can be built in early into an assessment. One of the problems with the current system is that disputes over levels of shared care and constant change, particularly around some margins, prevent early or speedy assessment and give rise to a good deal of disruptive and continual change to assessments. Administratively, we are trying to move away from that.
In essence, this clause, which the noble Lord sought to amend, is not focused on shared care; it is concerned with split care and the ability to offset, so just the higher of the maintenance assessments has to be involved—just a payment one way. I hope on that basis that the noble Lord will feel able to withdraw the amendment.
I apologise for putting the amendment to the wrong clause. Like the noble Baroness and the Minister, I am 100 per cent in favour of netting off in the special examples given by the Minister and in the notes on the clauses.
I think I must have private discussions with the Minister or, perhaps, his officials. It really depends on how the current one-seventh/half relationships work. If they work as they could, and as we were earlier told that it is possible to change a maintenance arrangement in a week, that is one thing; if they are annualised, as I think the noble Baroness, Lady Hollis, suggested in her helpful critique of what I have just said, that is another. Perhaps there is a genuine point here, and there could usefully be further thought upon it.
Currently, if there is a dispute or change in perceptions of whether the 52- or 104-night threshold is to change, then there is a request for a change in assessment and a recalculation. In many cases, that gives rise to a lot of disputes. Even when there is agreement, there is a lot of paperwork and administration in constantly changing the assessments while still using the same approach. We are trying to lock in to annual assessments, just as we are for the basic assessments, so that we remove quite a lot of the prospects of changes of circumstances and the admin burden that goes with that. However, I am more than happy to have a further discussion with the noble Lord if that would help.
I am grateful for that. Of course, there will be occasions when one parent takes the child or children on holiday one year and not the next, and so on. One can realistically think of all sorts of variables which ought, in all fairness, to come into the calculation. I accept the criticism from the noble Baroness, Lady Hollis, but how one achieves this is a distinctly moot point. It would perhaps not do any harm to consider it a lot further, which I am unable to do at the moment, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 35 agreed to.
Clause 36 agreed to.
197: After Clause 36, insert the following new Clause—
“Disclosure of information relating to family proceedings
(1) After section 49A of the Child Support Act 1991 (c.48) (inserted by section 32 of this Act), insert—
“49AA Disclosure of information relating to family proceedings
(1) Where this section applies, a disclosure of information relating to family proceedings, made to the Commission, or to a person providing services to the Commission, by a party to the proceedings is not (if it would otherwise be) a contempt of court or punishable as a contempt of court.
(2) This section applies if—
(a) the party is a person with care or non-resident parent in relation to a child,(b) child support maintenance is payable, or an application for a maintenance calculation has been made, in respect of the child, and(c) the party reasonably considers that the information is relevant to the exercise of the Commission’s functions relating to child support in relation to the child.(3) This section also applies if—
(a) an application for a maintenance calculation has been made under section 7(1) by the party, or child support maintenance is payable in accordance with a maintenance calculation made on an application made under section 7(1) by the party, and(b) the party reasonably considers that the information is relevant to the exercise of the Commission’s functions relating to child support in relation to the party.(4) A disclosure by a party’s representative is to be treated for the purposes of this section as a disclosure by the party, if the representative is instructed by the party to make the disclosure.
(5) In this section, “representative” means
(a) in England and Wales—(i) a barrister or a solicitor, solicitor’s employee or other authorised litigator (as defined in the Courts and Legal Services Act 1990) who has been instructed to act for a party in relation to the proceedings,(ii) a non-professional person who gives lay advice on behalf of an organisation in the lay advice sector, or(iii) any person permitted by the court to sit beside an unrepresented litigant in court to assist that litigant by prompting, taking notes and giving advice to the litigant; (b) in Scotland, a legal representative.(6) This section does not apply if the court dealing with the proceedings so directs.
49AB Meaning of “family proceedings”
(1) In section 49AA, “family proceedings” means any of the following proceedings commenced on or after the day on which that section comes into force—
(a) proceedings for ancillary relief (within the meaning of subsection (2));(b) proceedings under section 17 of the Married Women’s Property Act 1882 (questions between husband and wife as to property);(c) proceedings under any of the following provisions of the 1973 Act—(i) section 27 (financial provision in cases of neglect to maintain);(ii) section 35 (alteration of maintenance agreements);(d) proceedings under Part 1 of the Domestic Proceedings and Magistrates’ Courts Act 1978 (powers of court to make orders for financial provision);(e) proceedings relating to orders for financial provision within the meaning of section 8 of the Family Law (Scotland) Act 1984;(f) proceedings relating to an action for aliment within the meaning of section 2 of that Act;(g) proceedings under Part 3 of the Matrimonial and Family Proceedings Act 1984 (financial relief in England and Wales after overseas divorce etc.);(h) proceedings under Schedule 1 to the Children Act 1989 (financial provision for children);(i) proceedings under sections 33 to 40 of the Family Law Act 1996 (occupation orders);(j) proceedings under any of the following provisions of the 2004 Act—(i) section 66 (disputes between civil partners about property);(ii) paragraph 41 of Schedule 5 (orders where failure to maintain);(iii) paragraph 69 of Schedule 5 (alteration of maintenance agreements by the court);(iv) Schedule 6 (financial relief in magistrates’ courts etc.);(v) Schedule 7 (financial relief in England and Wales after overseas dissolution etc. of a civil partnership).(2) In subsection (1), “ancillary relief” means any of the following—
(a) an order under section 37(2)(b) or (c) of the 1973 Act or paragraph 74(3) or (4) of Schedule 5 to the 2004 Act (avoidance of disposition orders);(b) any of the orders mentioned in section 21(1) of the 1973 Act (except an order under section 27(6) of that Act) or any of the orders mentioned in paragraph 2(1) of Schedule 5 to the 2004 Act (financial provision orders) made under Part 1 of that Schedule;(c) an order under section 22 of the 1973 Act (orders for maintenance pending suit);(d) an order under paragraph 38 of Schedule 5 to the 2004 Act (orders for maintenance pending outcome of proceedings);(e) any of the orders mentioned in section 21(2) of the 1973 Act or any of the orders mentioned in paragraph 7(1) of Schedule 5 to the 2004 Act (property adjustment orders);(f) an order under section 31 of the 1973 Act or an order under Part 11 of Schedule 5 to the 2004 Act (variation orders); (g) an order under section 24B of the 1973 Act or an order under paragraph 15 of Schedule 5 to the 2004 Act (pension sharing orders).(3) The Secretary of State may by order amend this section so as to provide that “family proceedings” in section 49AA includes proceedings of a description specified in the order, other than proceedings commenced before the day on which the order comes into force.
(4) An order under subsection (3) may be made only with the consent of the Lord Chancellor.
(5) In this section—
“the 1973 Act” means the Matrimonial Causes Act 1973;
“the 2004 Act” means the Civil Partnership Act 2004.”
The noble Lord said: I also speak to Amendments Nos. 198, 199, 216, 218 and 221. This group of amendments facilitates the disclosure of information relating to certain family proceedings that is relevant to the child maintenance functions of the commission, in particular the calculation, collection and enforcement of child maintenance. It enables such disclosure to the commission by the parties to those proceedings without the risk of those parties being found in contempt of court.
In certain family proceedings, such as ancillary relief proceedings on divorce, a non-resident parent may disclose information in court documents about his or her income, or the court may make a finding regarding the non-resident parent’s financial circumstances, property or assets that were not previously known to the parent with care or the Child Support Agency. That information could have a significant impact on the amount of child maintenance the child receives and could also be relevant to help enforce child maintenance arrears.
It is not uncommon for the agency either to receive court documents from a party to family proceedings without requesting them, or to require information from a person involved in family proceedings in order to make a decision regarding a maintenance calculation or its variation. It is often the case that those providing the information do so in good faith and with the intention of benefiting the child concerned and do not appreciate the necessity in some proceedings of obtaining the court’s permission first.
However, at present, if information relating to certain court proceedings is disclosed voluntarily to the agency, the person making the disclosure may be found to be in contempt of court unless permission to disclose the information is obtained from the court first or court rules otherwise authorise such a disclosure. Even if a person was required to disclose the information relating to ancillary relief proceedings and some other family proceedings by the agency in accordance with the Child Support (Information, Evidence and Disclosure) Regulations 1992, it is possible, though unlikely, that a court could find that person in contempt when disclosure of such information is not permitted by court rules.
The position is complicated, but our intentions are simple; we do not think that it is right that some parents should be able to hide the true picture of their income and earnings behind court proceedings. Those who disclose this information to the agency do so to ensure that their children get the amount of maintenance they are entitled to and should not run the risk of being held in contempt of court. Removing the need to apply for permission to the court will speed up the process, get maintenance flowing to children as soon as possible and protect those acting in the best interests of their children but who unwittingly may be found in contempt of court because they are unaware of the legal rules relating to this.
Following the Committee debate in the other place, the Government agreed that parties and their representatives should be free to disclose information relevant to the commission’s functions without such disclosure being contempt of court if they are a parent with care, a non-resident parent or, in Scotland, a child of 12 or over, when child maintenance is payable. The amendments give the court the discretion to disapply this provision if it sees fit.
We recognise that there has not been time for any formal consultation on this amendment, so I would like to take this opportunity to commit to consulting the relevant bodies about how this amendment is workable in practice. The Government’s aim is to help to ensure that maintenance calculations are fair and accurate and that children receive the amount of maintenance to which they are entitled. These amendments help to do that, but at the same time provide safeguards for those individuals who disclose this information. I beg to move.
The Minister trailed these provisions at Second Reading. Of course, it is absolutely right that CMEC should get all the information that it can without jeopardising the current rules of court. It will usually be the parent with care who releases the information, and it would be quite wrong if he or she were penalised—as the Minister says he or she could be—under the current rules of court. However, the Minister is slightly jumping the gun, as he admitted, in that he is not sure how this is going to work. It seems clear that there will have to be some alterations to the rules of court to achieve this, and I wonder what consultation the Minister had had or is planning to have with the Lord Chief Justice and the court system generally, not only here but in Scotland.
I, too, welcome the amendments. The Minister was right to trail them at Second Reading. They are essential, and I am very pleased to see them in the form in which they appear before the Committee this afternoon.
I have a number of questions that the Minister may be able to deal with. First, new subsection (1) refers to disclosure of information,
“to a person providing services to the Commission”.
The new section inserted at Clause 32 deals with transfer of arrears—debt books being handed to debt collectors to collect. I would like reassurance that subsection (1) in Amendment No. 197, which relates to,
“a person providing services to the Commission”,
would exclude debt collectors. I guess that it does. I do not know quite why that sort of phrase should be included in the new section. Perhaps it is just to make provision for unseen circumstances. The rest of it makes perfect sense to me but I do not know why a person providing services to the commission would need to be informed about this sensitive information. It will certainly make it harder to get past the judges. Can we have some clarity about that?
Secondly, new Section 49AA(2)(c) talks about the party “reasonably” considering that the information is relevant. I do not understand why we need the word “reasonably”, as I cannot think of any circumstances where anything other than the party judging for him or herself that the information was relevant would be enough. I do not understand why the test of reasonability is there. It might be something to do with human rights or, again, it might be to defend these clauses against the judges, who, in my experience, are rightly sensitive about core information being passed round. That is part of what we would expect them to do, although I think that sometimes they overdo it. If they observe form to the extent that it gets in the way of child maintenance being delivered, that is a separate thing, but I do not understand why the test of reasonability is included.
Thirdly, new Section 49AA(5) suggests that one can have lay advice in England and Wales but that in Scotland a legal representative is needed. There may be some reason for that but it is not apparent to me and I cannot understand why there should be a difference. There may be a different set of circumstances in England and Wales in terms of unrepresented litigants and people who can sit beside them in court, but I do not know why it should be that way for England and Wales and yet it is explicitly stated that a legal representative is required in Scotland.
This is a brave amendment and I am pleased that the Minister has brought it forward. I think that the provision will be contested as judges will not like it much, but I am pleased that the Government and the department have decided to take them on. However, new subsection (6) provides a bit of a weasel way out. Either we do this or we do not. There is a fallback provision later in new Section 49AB(4), where the Lord Chancellor has a residual role. I may have misdirected myself here as that may refer to an earlier amendment. However, my main point is that Parliament should be firm about this being a priority because it will make a significant difference. I understand perfectly well the points that have been reasonably made by the noble Lord, Lord Skelmersdale, about getting the consultation right here—we do not want to run into the courts—but new subsection (6) seems to give the game away slightly. I want some reassurance that people will not just roll over if the courts say, “No, you’re not having it because that’s not the way we do things here any more”. “No veto to judges” is my plea.
Having said that, I think that these are important changes and improvements and I hope that they are given effect and used properly. If the Minister finds undue resistance from the judges, I hope that he will come back and look for help from his parliamentary colleagues. I, for one, will stand shoulder to shoulder with him to ensure that they are not stupid about the way that they seek to retain procedures which have been in place for ages but which might get in the way of child maintenance being made effectively in future.
I start by thanking both noble Lords for the enthusiasm with which they have received the amendments. The noble Lord, Lord Skelmersdale, asked whether we are jumping the gun because we have not worked out how this is going to work or whether it will require a change to the rules of court. The answer is that it will not. This is an alternative to an amendment to the rules of court. We need to talk through some of the practicalities: the nature of the forms on which disclosures are made and the extent to which they may or may not refer to the fact that disclosure can be made to the commission. It is that sort of practical issue that needs to be worked through and talked through with the powers that be rather than any concern about whether the provision is fundamentally effective. We are confident that it is.
The noble Lord, Lord Kirkwood, asked why we need the word “reasonably”. As the noble Lord will know better than me, the disclosures made in the proceedings that we are talking about could cover a range of issues, not all of which will necessarily be relevant to the functions of the commission. It is right that a proper judgment has to be made by the person making them available to the commission. The noble Lord asked whether that would exclude debt collectors. The note that I have from the Box is that it would because the calculation would precede the allocation of a case to debt collectors. A caveat to that is that part of the information that might be disclosed might be the location of a non-resident parent and such information would be highly relevant to a debt collection process. If I need to write further on that, I will, but in some circumstances it could be made available. If at some stage in the future the maintenance calculation itself is contracted out, in whole or in part, it is right that the person providing those services has that disclosure rather than the commission, or in addition to the commission.
The noble Lord asked about the Scottish provisions. Those provisions were provided by Scottish legal advisers. We merely need to refer back to them and give the noble Lord a more detailed response. He also asked whether new subsection (6) is a get-out. We do not believe that it is, but it is a vital safeguard. Sensitive information, perhaps relating to a new relationship or some such detail, could be disclosed in proceedings—it is difficult to define precisely what that might be—but it is right that there is an opportunity for those provisions to be excluded in those circumstances. However, we do not believe that the exclusion should be used willy-nilly. There would have to be good and proper reason for relying on that provision.
I hope that has dealt with each of the questions raised. This is an important provision. The noble Lord is absolutely right: we are aware that some judges are not best pleased with this. We thought we might discuss that this afternoon and be able to allay some of the concerns. At the end of the day, we should recognise that, under the regulations already in force, the sort of disclosures we are talking about can already be obtained by a request from the commission, in some instances requiring the consent of the court. If that is not obtained, there is a bit of a grey area about whether, if the request has been made and complied with but without the consent of the court, that is contempt of the court. As a practical matter, I do not believe that that point has ever been taken up. If it is relevant to the functions of the commission, it is difficult to see that it might be. Therefore, that information could already be requested. Here, we are dealing with facilitating arrangements, particularly where there is voluntary disclosure by the parent with care or the non-resident parent, to remove some of the jeopardy that they currently suffer because of the complexities of the rules.
On Question, amendment agreed to.
Clause 37 [Disclosure of information to credit reference agencies]:
198: Clause 37, page 35, line 20, leave out “49A” and insert “49AA”
199: Clause 37, page 35, line 20, leave out “32” and insert “(Disclosure of information relating to family proceedings)”
On Question, amendments agreed to.
Clause 37, as amended, agreed to.
Clauses 38 and 39 agreed to.
Clause 40 [Extinction of liability in respect of interest and fees]:
[Amendment No. 200 not moved.]
Clause 40 agreed to.
Clause 41 agreed to.
Schedule 6 [Use of information]:
[Amendments Nos. 201 and 202 not moved.]
203: Schedule 6, page 69, line 13, after first “tax,” insert “contributions,”
On Question, amendment agreed to.
[Amendment No. 204 not moved.]
205: Schedule 6, page 69, line 21, at end insert—
“( ) In this paragraph, “contributions” means contributions under Part 1 of the Social Security Contributions and Benefits Act 1992.”
On Question, amendment agreed to.
[Amendment No. 206 not moved.]
Schedule 6, as amended, agreed to.
On Question, Whether Clause 42 shall stand part of the Bill?
At the risk of delaying proceedings, I should like to raise a question. I may be missing something here, or I may just be being old-fashioned, but the liable relative rule is about to be extinguished in a way that we need to be careful about. I am grateful to Professor Nick Wikeley of the University of Southampton for drawing this to my attention but these conclusions are entirely mine. There is a danger—I put it no higher than that—that Clause 42 will send out a signal that in future child maintenance will be purely a private matter and that the state will have no residual interest in whether it is paid. That is an extreme way of putting it, and I shall explain why I think that we have to guard against that message taking hold and becoming the conventional wisdom.
In social security law, there has always been, as far back as the Poor Relief Act 1601, a public duty to maintain children. That is well understood. Close kin, as defined in the public laws, were always considered to be the primary source of support for their relatives in times of hardship. In recent times, the National Assistance Act 1948 enshrined that public law duty in Section 42, which clearly sets a duty on spouses to support each other and to maintain children. That provision was encapsulated in Section 105 of the Social Security Administration Act 1992. There is a public law duty for spouses and civil partners to maintain each other and for parents to maintain children. The Committee has to understand this afternoon that Clause 42 proposes to substitute a new Section 105(3) in the Social Security Administration Act 1992 that will extinguish, as I understand it, the public law duty to maintain children. It folds the responsibility for the maintenance of children back into Section 1(1) of the 1991 Act, the parent Act of the Bill in front of us, which states:
“For the purposes of this Act, each parent of a qualifying child is responsible for maintaining him”.
Section 6 brings a new opportunity to have options and make choices. It is therefore perfectly possible—indeed, it is anticipated—that repealing Section 6 will remove the public duty. People will then be able to pursue maintenance for children through the CMEC system. There is the question of ex-partners—it is not likely to be a big problem in practice, because I do not think that there are many ex-partners who are really well provided for—but, if we lose the opportunity under the old liable relative provisions to pursue people who do not maintain their children, and if they leave their partner, have an income and do not opt into the system and the parent with care does not require them to go into the CMEC system, then in the new scheme the state could have no come-back if the parent with care opted out for a quiet life. You could characterise this as taxpayers providing open-ended, means-tested support via child tax credit, income support and, pro tem, child benefit support for children. In the long term, we could end up with no way of attaching a liability to people under the former liable relative rules that we had. That is a fundamental change in the principles of social security law.
There are some consistency issues about other parts of social security law. If we are going down this route, a consistent policy would mean that all public law maintenance obligations should be repealed. There are some inelegancies with pension credit because that is nothing more than income support for people over a certain age threshold. I notice with interest that Clause 35 of the Health and Social Care Bill repeals Section 43 of the National Assistance Act 1948, which deals with local authorities’ ability to recover liable relatives’ costs for residential and social care.
Clause 42 is not a mere consequence of, and natural development from, the abolition of Section 6. We should not pass it without being very careful that we understand what we are doing. I may be reading too much into this and my interpretation may not be right, but I would like some reassurances from the Minister—if not today, then by letter or in some other way—that at some stage in the future the Public Accounts Committee and the Comptroller and Auditor-General will not suddenly realise that some non-resident parents will be beyond his reach in terms of maintenance of children and liable relatives using the body of social security law that we have enjoyed in the past. We need to be careful if we pass this clause, as we undoubtedly will, that we do so in that knowledge. The Minister must assure us that these things have been carefully thought through and that this will not come back and haunt us in the future as a mistake because we were not aware of the full consequences of Clause 42.
Not for the first time, the noble Lord, Lord Kirkwood, has encouraged me to think. When I first saw this clause, I wrote by the side of it “but not their children”. Although Section 1 of the original 1991 Act on child support deals very happily with the duty of each parent to support their child, the Act that we are talking about, the Social Security Administration Act 1992, goes very much wider than that. If it is, as I fear, an all embracing provision, it does not apply to this Act, this Bill or indeed the 2000 Act at all. It applies to other parts of the social security system. I hope that I am wrong and that the noble Lord will be able to satisfy me of that error.
I shall try to explain why the provision is included in the Bill. Section 105 of the Social Security Administration Act 1992 provides for the recovery of benefit expenditure where income support or income-based jobseeker’s allowance is paid in respect of a person who someone else is liable to maintain. For income support purposes, this means a spouse or civil partner and children. For jobseeker’s allowance, the ability to recover extends only to spouses or civil partners. Clause 42 amends this provision by removing the reference to liability to maintain children so that the position is the same for both benefits. We want to encourage parents to make their own arrangements for the maintenance of their children. Having taken that step, it makes sense for us to remove legislation which might act counter to our intentions and create uncertainty for parents.
Perhaps I may say a little more by way of background. The liable relative provisions have existed in benefits legislation for many years, acting as a means of offsetting benefit expenditure where a person failed to maintain a person for whom they were deemed to be liable. The provisions give the Secretary of State the right to enforce the liability to maintain by applying for an order in a magistrates’ court. In addition, a person who persistently refuses or neglects to maintain a person for whom he is liable can be prosecuted. However, since the introduction of child support in 1993, use of the provision in respect of child maintenance has largely fallen into disuse. When jobseeker’s allowance was introduced in 1996, the liability to maintain children was not carried forward for that benefit. Liable relative work is carried out by Jobcentre Plus. Any activity in this regard that has been carried out since the provisions of the Child Support Act 1991 have been in relation to liability for adults—normally, spouses. The liable relative provisions are not therefore being applied in respect of children, but they will in any case become redundant following completion of child tax credit rollout, where income support will no longer be paid for dependent children. The amendments in the Bill apply only to maintenance for children. An individual will still be liable to maintain his or her spouse or civil partner until such time as the marriage or civil partnership is dissolved.
I hope that I have dealt with noble Lords’ points. Perhaps we might all review the record and see whether we need another discussion on the matter at a later stage, but that is why the clause is in the Bill.
I am happy to concur with that conclusion. It is certainly true that the Government’s policy is to move all financial support in the direction of child benefit and tax credits. We know that that is already happening for new claimants, but the latest date for transfer that I have—it has been much delayed in the past for existing IS claimants—is 31 December 2008. I am certain that that deadline will slip, so it will be a long time coming. It is certainly true also that HMRC has no recovery powers, liable relative or otherwise, for tax credits. Child tax credits are obviously slightly different—I think that they are the same as a benefit—but, technically, they are not considered to be part of the benefits system, so people may have anticipated that change already.
I am fearful that we will look back on this legislation in the future and think that we have made a bit of an error. I was around at the time when the jobseeker’s allowance change was made. The case made for that was that the Child Support Agency was going to fill the gap. Everyone was confident on that glad morning in 1996, but it just did not work out. If noble Lords look back at the exchanges on the jobseeker’s allowance legislation in 1995-96, they will see that expectations raised by Ministers at the time were not fulfilled. However, the Minister is prepared to go away and join us in a collective think about this. It is in everyone’s interest to get this right. A little more thought is probably necessary to make sure that we do not take a step that has unintended consequences.
Clause 42 agreed to.
Clause 43 agreed to.
Clause 44 [Conditions of entitlement]:
207: Clause 44, page 38, line 29, at end insert—
“( ) The first regulations made under Part 4 shall not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.”
The noble Lord said: We have slipped into the part of the Bill which deals with mesothelioma, which is a horrible disease about which we shall be talking in some detail next week on a pneumoconiosis order. As a part-time parliamentary technician, I tabled this amendment in response to advice given by the Delegated Powers and Regulatory Reform Committee. Clause 43 provides for lump-sum payments to be made to a person suffering from diffuse mesothelioma or to the dependant of such a person who has died. Unlike the provision for lump-sum payments in similar cases of asbestosis-related illness or death under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, there is no requirement for the sufferer to have established entitlement to industrial injuries disablement benefit in relation to the diseases, on the basis that they are work related.
The amounts of payments under Clause 43 are to be prescribed in regulations subject, as under the 1979 Act, to the affirmative procedure. However, while the conditions of entitlement to a payment are provided for in Clause 44, it is apparent that of the three entitlement conditions which apply to sufferers—subsection (1)—and their dependants—subsection (2)—the second and third are in each case entirely dependent on regulations, and all these can be introduced under the negative resolution format.
Your Lordships’ Delegated Powers and Regulatory Reform Committee considered that this was the right approach, given that equivalent powers in the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 were negative. However, that was the best part of 30 years ago and parliamentary procedure has moved on since then. At that time there were only two ways of pursuing orders: affirmative and negative. In the past 10 years or so we have developed a third; namely, to have the first order made under the affirmative procedure and subsequent orders, which are usually but not invariably amendment orders, by the negative procedure.
As the Government intend something entirely new in this set of orders, it is appropriate that we have a proper discussion at the beginning and, should amendment be necessary, I am sure that the noble Lord, Lord Kirkwood, and I and other noble Lords would point that out and perhaps the amending orders could subsequently be made by negative resolution. I beg to move.
I think the noble Lord, Lord Skelmersdale, may have something here. It is right to discuss something new. If there is a good reason why we should not do this, I would be interested to hear about it. It is not a big ask, to put it bluntly. I do not think that it would hurt the Government or the scheme to proceed in this way or in a similar way.
The noble Lord, Lord Skelmersdale, has something here. Amendment No. 207 refers to Part 4 of the Bill, which deals specifically with mesothelioma. The amendment requires that the first set of any regulations made under Part 4 would be subject to parliamentary scrutiny under the affirmative resolution procedure. At present, only regulations made under Clause 43, as the noble Lord has pointed out, which state that the Secretary of State may prescribe the amount of any lump-sum payment, will be subject to the affirmative resolution procedure.
Amendment No. 207 goes further and would require regulations made under Clauses 45 to 47 to be subject to the affirmative procedure in the first instance. Clause 44 sets out the conditions of entitlement that must be satisfied for a lump-sum payment in respect of mesothelioma to be made. I intend to table a government amendment on Report, which will require that the first set of regulations made under Clause 44 be subject to the affirmative resolution procedure. This change follows a recommendation in the report of the Delegated Powers and Regulatory Reform Committee. As a number of the conditions of entitlement for the new mesothelioma scheme are to be contained in regulations, it would be appropriate that in the first instance they are subject to more detailed parliamentary scrutiny.
However, unlike Clauses 43 and 44, which set out the conditions for entitlement and lump-sum payments, Clauses 45 to 47 are concerned with administrative detail, such as determining claims, carrying out a reconsideration of a determination and setting out the appeal route against a determination. We feel that it is unnecessary to subject such administrative detail to the affirmative resolution procedure, and there is also a precedent in that similar regulation-making powers set out in the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, on which the new mesothelioma provisions are based, are also subject to the negative resolution procedure.
Given that those regulations, which focus much more on detail, such as how much a payment should be and the conditions of entitlement, will be subject to full parliamentary scrutiny under the affirmative resolution procedure, I hope that the noble Lord will feel satisfied and will be able to withdraw the amendment. I think that that deals with his substantive point.
I am extremely grateful, first, to the noble Lord, Lord Addington, for damning my amendment with what I might describe as faint praise and then to have the faint praise made slightly brighter by the Minister. Many years ago, I inherited a pair of ivory-backed hair brushes, which were beginning to lose their bristles. It looks to me as though my amendment has lost a few bristles in the Minister’s consideration. Having said that, I am well aware—as I was when I tabled the amendment—that what I am proposing as a whole goes somewhat in the direction of overkill. I am glad that the Minister has now put on the record that he will refine this into a sensible affirmative first provision for Clauses 43 and 44. Is that right?
208: Clause 52, page 42, line 31, after “(4)” insert “, and no order may be made under section (Review of the status of the Commission)(6),”
209: Clause 52, page 42, line 32, after “regulations” insert “or order”
On Question, amendments agreed to.
[Amendment No. 210 not moved.]
Clause 52, as amended, agreed to.
Clause 53 agreed to.
Clause 54 [Minor and consequential amendments]:
[Amendment No. 211 not moved.]
Clause 54 agreed to.
Schedule 7 [Minor and consequential amendments]:
[Amendments Nos. 212 and 213 not moved.]
214: Schedule 7, page 73, line 21, leave out “32D(2)(b),” and insert “32A to 32B, 32D to 32G,”
On Question, amendment agreed to.
Schedule 7, as amended, agreed to.
Clause 55 agreed to.
Schedule 8 agreed to.
Clause 56 [Transition]:
215: Clause 56, page 43, line 30, after “32G,” insert “32HA,”
216: Clause 56, page 43, line 30, after “49A” insert “, 49AA”
217: Clause 56, page 43, line 34, after “32G,” insert “32HA,”
218: Clause 56, page 43, line 34, leave out “and 40B” and insert “, 40B and 49AA”
On Question, amendments agreed to.
219: Clause 56, page 43, line 39, at end insert—
“( ) An order may be made under section 32I of the Child Support Act 1991 (c. 48) in respect of an amount even though the time within which an application could have been instituted under section 33 of that Act for an order in respect of that amount has expired.”
The noble Lord said: I shall speak to the amendment because this is the last chance to say a word before our Committee proceedings conclude. I take the opportunity to thank all noble Lords who have participated. We have had a good look at the provision and I am grateful for the spirit in which noble Lords have engaged in the discussion. I look forward to the subsequent stages of the Bill. I beg to move.
On behalf of the Opposition, I reciprocate the Minister’s words. We have had an exhaustive exploration of the whole subject of child maintenance and when we get to the next stage we will be able to refine our arguments dramatically. I have appreciated the Minister’s way of handling the Bill and the prompt advice that he has received from behind both shoulders.
I shall make that unanimous. This is the first Committee stage in which I have really been involved, and it is astonishingly more detailed, instructive and valuable than such stages are in another place, in my experience. That is something that I shall no doubt have to get used to. I was just getting warmed up as we came to the end. I look forward to further proceedings on the Bill.
The Minister has conducted himself well and the Bill team has supported him excellently, which has been to the benefit of the whole Committee. I have enjoyed it and learnt a lot from the process. I give thanks from these Benches, too.
On Question, amendment agreed to.
[Amendment No. 220 not moved.]
Clause 56, as amended, agreed to.
Clauses 57 and 58 agreed to.
Clause 59 [Commencement]:
221: Clause 59, page 44, line 25, at end insert—
“( ) An order under subsection (3) appointing the day on which section (Disclosure of information relating to family proceedings) is to come into force in England and Wales may be made only with the consent of the Lord Chancellor.”
On Question, amendment agreed to.
Clause 59, as amended, agreed to.
Clause 60 agreed to.
Bill reported with amendments.
The Committee adjourned at 5.03 pm.