13th Feb 2024

Failure to Pay Child Maintenance: Tougher Approach by Government

By James Pirrie

Failure to Pay Child Maintenance: Tougher Approach by Government: Is This Crackdown on CMS Non-Payers All it is Cracked up to Be? by James Pirrie

 

FLiP Director James Pirrie a leading expert on the Child Maintenance system, comments on the recent Government announcement introducing liability orders for individuals who do not to pay Child Maintenance.

The Government announced on 13 February 2024 the introduction of administrative liability orders for non-payment of Child Maintenance. The liability order is the gateway to more abrasive forms of enforcement, such as bailiffs, driving licence removal and even prison.

Depending on where you stand, this may feel like a giant leap forward or Kafkaesque powers gone wild. It is probably a bit of both depending on the situation, and that is really the problem that we’ve had now for 30 years: policy initiatives with unintended consequences.

We have never had the child maintenance system that properly focuses on relationships first.

The Government’s plan here is that by shortening and making more accessible the liability order, the Child Maintenance Service has enforcement more readily and more cheaply available. That sounds well and good if in your mind’s eye you have a person dodging their responsibilities for years. But undoubtedly there will be others targeted by these powers; those who have not been well served by the bureaucracy; who do not understand their obligations; or who are appealing to put things right. Almost certainly some of them will be required to pay or put at risk of draconian sanctions:

(1)      Deduction from benefits

(2)      Financial investigation

(3)      A deduction from earnings order

(4)      Deductions from bank accounts: either a `regular deduction’ or a `lump sum deduction’

(5)      Orders to restrain dispositions of property

And then the sanctions that require a liability order:

(6)      Registration of the order as if a judgment debt (with the consequent impacts on the “non-resident parent’s” credit)

(7)      Taking control of goods – the bailiff visit

(8)      A third-party debt order, perhaps securing the contents of a savings account

(9)      A charging order – registering the debt against a home and then subsequently applying for a sale of the home

(10)    Driving disqualification

(11)    Passport confiscation and where this is done, then:

(12)    A search of the NRP and confiscation of monies on their person; or

(13)    Committing the NRP to prison.

This would be easier to justify if one could see regular applications for enforcement by the Child Maintenance Service, but that is simply not the case. For example, driving disqualification was last used (and merely on a suspended basis) in 2022; passport confiscation was last used in 2019; and there was only one committal to prison in the quarter to June 23 (though 54 suspended committals). However, against a backdrop of arrears of arrears of over half a billion pounds (£570.1m as at end of June 2023), it does not really feel as if the CMS sees enforcement as the way to solve this problem or surely there would be more activity?

All of this would be easier if the CMS never got things wrong – but that is not the case.

It would also be easier if the appeals process were quicker – but what makes this Non Resident Parent’s (NRP’s) situation so difficult is that the appeal process may easily take three years or more to resolve – during which time, payments may need to continue – regardless of whether they are appropriate.

Perhaps more worryingly, the scheme proposes that administrative liability is suspended where there is an appeal. The result is going to be appeals as a standard way of stopping enforcement – inevitably there will be many more appeals [for example as a tactical step by that evasive non-paying parent envisioned above] which will further overburden the appeals service and make the appeal delays all the longer. More unintended consequences.

It would also not be so challenging if the CMS underwrote the repayment of wrongly claimed sums, but the CMS does not do so: the person who is sure of the claim is wrong [or who is pretty sure it is wrong – a lot of the detailed regulation is unmanageably complex] may face the choice of paying wrongful sums that they may never recover to avoid enforcement or instead progress through this league of potential sanctions – and as we have just seen these financial payments may need to continue for a lengthy period, whilst the appeal comes to an end.

It is perhaps unhelpful therefore that the Government has chosen to present this as a case of “cracking down on non-payers”.

Yes there may be some people who are not paying, and it will be terrific to see the needed entitlements start to flow again so that a parent can better provide for a child’s financial needs.

But if we are to have enforcement at the touch of some buttons, then we need a properly funded administration that will get things right most of the time and sadly we are not yet there. So, along with that welcome improvement of faster flowing maintenance, will be unintended misery for another section of society and almost certainly the relationships that the children need with each of their parents will be one of the casualties.

What we really want instead of “cracking down” on anybody is “developing better solutions for families” – but we have been hoping for that for thirty years now!

James is a specialist in child maintenance and has previously appeared before the House of Commons Public Accounts Committee to talk about the practicality of the rules surrounding the Child Maintenance Service. In 2023, James created an accessible calculator (found here) which runs alongside the prestigious Red Book Child Support pages. The calculator contains reminders about the key rules and considerations that apply to each of the steps along the way. To find out more about what the calculator delivers, read this blog.

If you would like to speak to a family law specialist about child maintenance, please contact director James Pirrie (E: jp@flip.co.uk or T: 020 7420 5000) or contact any of our other specialist divorce lawyers:

T: +44 (0)20 7420 5000

E: hello@flip.co.uk