Arrangements for the Future

Clause 9 – in the House of Commons at 9:45 pm on 17th June 1996.

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Amendment made: No. 12, in page 7, line 32, leave out from 'section' to 'must' in line 34 and insert

`(Welfare of children)'.—[Mr. Llwyd.]

Photo of Frank Field Frank Field Chair, Social Security Committee, Chair, Social Security Committee

I beg to move amendment No. 98, in page 7, line 34, at end insert— '(5A) Where the court considers that there is a child of the family under the age of nineteen years, a certificate must be produced to the court, in a form to be prescribed, stating that the Secretary of State is satisfied that the relevant information he requires under the provisions of the Child Support Act 1991 has been provided by the parties.'.

Photo of Miss Janet Fookes Miss Janet Fookes , Plymouth Drake

With this, it will be convenient to discuss the following amendments: No. 99, in page 7, line 43, at end insert— '(8) If the court is satisfied, on an application made by one of the parties after the end of the period for reflection and consideration, that the circumstances of the case are those set out in paragraph 3A of Schedule 1, it may make a divorce order or a separation order even though the requirements of subsection (5A) above have not been satisfied.'.`(c) that subsection (3A) below applies.'. No. 101, in clause 10, page 8, line 20, after `dissolved', insert `or'(c) that subsection (3A) below applies'. No. 102, in page 8, line 20, at end insert— '(3A) This subsection applies where an applicant or either of the applicants for the cancellation of an order preventing divorce has failed to comply with the requirements of section 9(5A).'. No. 100, in schedule 1, page 42, line 42, at end insert— `Exemption from child support requirements—3A. The circumstances referred to in section 9(8) are that—

  1. (a) the applicant has, during the period for reflection and consideration, taken such steps as are reasonably practicable to comply with the requirements of the Child Support Act 1991 as applied by section 9(5A);
  2. (b) the other party has deliberately delayed in complying with the requirements of the 1991 Act as applied by section 9(5A) or has otherwise been obstructive or has failed to communicate with the applicant or the relevant authorities.'.

Photo of Frank Field Frank Field Chair, Social Security Committee, Chair, Social Security Committee

This is also the first occasion when I have spoken to the Minister across the Dispatch Box, so I welcome him to his new post and congratulate him. It is not the first time that I have spoken since the hon. Gentleman has been on the Treasury Bench, because as a Whip, he occasionally growled approval or disapproval at my comments. I hope tonight that his bite will be a lot worse than his bark—[Interruption.] If hon. Members think about it, it is that way round, given what I am going to say.

I do not intend to press the amendments to a vote. I hope to persuade the Minister, by the force of the argument, that he should concede the amendments that we wish to make. When members of the Committee decided to table the amendments, we wrote to the Secretary of State for Social Security to ask what he thought of them, as they clearly affect one aspect of his Department's work: the Child Support Agency. I expect to receive his letter in tomorrow's post. That suggests that he does not want me to be able to use anything in his letter to support my argument.

In this major reform of the divorce laws, the words "Child Support Agency" are absent. Members of the Committee thought it worth tabling the amendments so that those words, which dared not speak their name in Committee, could at least be debated and suggestions made.

I shall briefly tell the House what the amendments mean. Amendment No. 98 literally brings into call the CSA. It says that, before proceedings for divorce can be completed, the court should be satisfied that all the information that the CSA would require is available to the court and therefore to the CSA.

Amendment No. 99 does three things. It accepts that the principle of the Bill is that the clock for divorce ceases to tick away unless the mediation process has gone through. We are suggesting that, similarly, the clock should be stopped if the information wanted by the CSA is not available. We then suggest that, if that information is available, the clock should start ticking again. Amendment No. 100 proposes that, because there could be some instances when one of the parties deliberately withholds information to obstruct the spirit and the letter of the Bill, shortly to become an Act, the court will have discretion to set child support requirements to one side. That is the kernel of our amendments.

I know that we tabled the amendments late in the proceedings, but unless they are on the record when the Bill returns to the other place, there will be no chance for the other place or for the Government further to consider them. After this short debate, after the Government have had more time to take representations and to consider outside views, and after we have had a staged debate in the other place, the Government may still decide that it is not advisable to press ahead with the amendments, should they be part of the record. In those circumstances, I expect the Minister to say that those of us who have tabled the amendments expect the Government to suggest that the amendments will be defeated, but unless we pass the amendments tonight and unless they are on the record, the possibility of strengthening the position of children and of ensuring the payment of maintenance to them will be lost.

It is in that spirit that the amendments have been tabled. We do not believe with certainty that we have drafted them in a way that could not be improved, but we are anxious that that aspect be opened up. It can be considered further only if the Government give way tonight, so that a final decision can be taken in another place.

I have said how openly I would support the Government even if, in the other place, they thought that we should not proceed with the amendments, but it is worth our debating them tonight. I hope that the Government will give way and support and improve them in the Lords, but I wait with interest to hear what the junior Minister says and to learn in tomorrow's post what the Secretary of State says.

Photo of Mr Gerry Bermingham Mr Gerry Bermingham , St Helens South 10:15 pm, 17th June 1996

I support these amendments for the one simple reason that there cannot be a Member of this House who does not have a postbag full of complaints about the Child Support Agency, about the arbitrary way it performs, about the lack of information disclosed and about the ridiculous way that it treats Members of Parliament, lawyers and the people from whom it seeks to obtain money.

When the CSA was set up, no one objected to the principle of support for the child of a liaison or a marriage or that that support should be both justifiable and reasonable. What none of us expected was the monolithic bureaucracy that we got. It will be a long time before the House examines the depth of the damage that the CSA has caused to families throughout the land. I could continue for some considerable time—but I will not—citing example after example from my constituency of marriages that have broken up and where the children who are being supported through the CSA are in a better financial position than the children of the second marriage, and where the wife of the second marriage has to go to work and utilise all her earnings and part of her husband's to meet the demands of the CSA—which, when it is shown to be wrong at tribunals, takes months to rectify mistakes—[Interruption.] When we are talking about people's lives and when children's interests are at risk, I sometimes wonder why it is so necessary for hon. Members to discuss the racing at Sandown or Ascot or other matters.

There will come a time when the CSA formula will need to be examined. Indeed, it needs to be reviewed. These amendments could be considered in the other place as a means to examine the settlements—[Interruption.] Has the Minister finished? [Interruption.] Perhaps the hon. Member for Birmingham, Edgbaston (Dame J. Knight) will listen for a moment. If she had listened to what my hon. Friend the Member for Birkenhead (Mr. Field) had to say, she would understand that the proposal is that a divorce should not be completed until such time as the financial settlement is completed and that that financial settlement should be based on the CSA formula. That suggestion makes a good deal of sense. It will enable us, at some stage, to examine how the CSA formula is compiled and whether, in the context of divorce, it is fair.

My hon. Friend said that he will not press the amendment to a vote. What he is trying to ensure is that if the calculation of maintenance is to be based on the CSA formula, we should look again at the formula, because it has been proved to cause great hardship throughout the land. That is the point behind the probing amendments—

Photo of Mr Gerry Bermingham Mr Gerry Bermingham , St Helens South

They are probing amendments. The hon. Gentleman should note that my hon. Friend the Member for Birkenhead is nodding, so I am right.

We are saying that the way in which maintenance is calculated is wide open to abuse and, even more important, is causing grave hardship for the children of first, second and third relationships. That is why I support the amendments.

Photo of Gary Streeter Gary Streeter Parliamentary Secretary (Lord Chancellor's Department), Assistant Whip (Law Officers)

I listened carefully to the arguments deployed by the hon. Members for Birkenhead (Mr. Field) and for St. Helens, South (Mr. Bermingham), but I am afraid that I shall disappoint them. The Government have some sympathy with the motives underlying the amendments, but cannot accept them. It is clearly right that parents should make proper provision for the maintenance of their children. Clause 9 already provides that parties must decide their rights and liabilities in relation to the maintenance of children. The amendments are unnecessary, and the arguments that I shall deploy will persuade the hon. Member for Birkenhead, who is a very fair-minded man, of that fact.

The Child Support Agency already has the necessary powers to require information to be provided, and it has strong enforcement powers. The Child Support Act 1991 requires absent parents to provide the required information to ensure that a proper maintenance assessment is carried out when the parent with care—usually the mother—is in receipt of a relevant benefit. That requirement exists whether or not the parents are divorced. When there is an absent parent and the parent with care is in receipt of an appropriate benefit, the CSA will normally have become involved long before we reach the stage at which the amendments would bite.

Who are the people on whom the amendments would bite? The CSA seeks to make and enforce maintenance orders whether or not parents are married. We suspect that most of those about whom the agency is currently unable to gain full information—as to who was at some time married and who is not already divorced—have simply gone to ground. The amendments will not help in catching them.

Ninety per cent. of absent parents are fathers, but currently about 70 per cent. of petitioners for divorce are women. The amendments include an exemption such that a divorce or separation order may not be refused if the applicant has made every effort to comply with the CSA's requirements but has been unable to do so because of non-co-operation of the other party. Therefore, under these provisions, absent fathers who are not co-operating with the CSA are given no greater incentive to co-operate than they are now.

Only absent fathers who do not co-operate with the CSA and who wish to apply for a divorce will be caught by the provisions. But they will not be able to do so in secrecy, because a statement of marital breakdown will have to include an address for contact. The respondent can whip that off to the CSA, and existing provisions of the Child Support Act 1991 can be brought into play.

In short, the Government consider that only a handful of absent parents will be caught by the amendments—but at what cost? I shall deal with that shortly.

The amendments are inconsistent with the Child Support Act 1991. They relate to all divorcing or separating parents with a child under 19. Currently, the CSA usually becomes involved only when the parent with care of the child has applied for an income-related benefit, and it is concerned only with children of 16 or older in full-time education.

The amendments will, therefore, place an added burden on many people who, in the normal course of events, would not have to go anywhere near the CSA. Parents who were able and willing to reach their own agreement on child maintenance will have to apply to the agency for a certificate in every case, perhaps involving correspondence, telephone calls or an interview, which will create delay and inconvenience. That is unlikely to prove popular.

The amendments would also have significant implications for the CSA. In 1994, there were about 88,000 divorces of couples with children under 16. That means that similar numbers of certificates might have to be produced each year by the CSA. The CSA has estimated that up to 50,000 certificates would have to be issued relating to the children of people in marriages who currently would not be considered by the CSA at all. The CSA decided only recently to limit the scope of its operations, to concentrate on its core activity of basic child support work. The proposed certification process would prove a distraction for the CSA from that core work, and it would be unlikely to deal with the points made by the hon. Member for St. Helens, South.

The amendments are a sledgehammer to crack a nut. As I said, we expect the impact on non-compliance to be minimal. However, the agency estimates the cost of administering the proposed certification system at roughly £7 million per annum. If we are to spend £7 million, I could suggest more pressing priorities.

Photo of Mr Gerry Bermingham Mr Gerry Bermingham , St Helens South

The Minister makes my point. There will be two groups of people: those who are in work and who agree the figures on maintenance for the wife and children between themselves, or through their lawyers; and those who are not in work, with one party—the wife, for example—in receipt of income-related benefit, when the CSA will certify the amount to be paid for the wife and children. The tragedy is that experience has already shown that, in monetary value, the orders made by the CSA far outweigh the orders made between consenting parties. So we have two levels of maintenance, one of which is grossly unfair to a working partner—male or female.

Photo of Malcolm Wicks Malcolm Wicks , Croydon North West

Given that one in four children will have parents who divorce, is the Minister seriously saying that in future policy there should be no interface between the new divorce law reform and the operation of child maintenance?

Photo of Gary Streeter Gary Streeter Parliamentary Secretary (Lord Chancellor's Department), Assistant Whip (Law Officers)

For the reasons that I have given, yes.

To summarise, I sympathise with the thought behind the amendment, but the Government do not accept that it is an appropriate or cost-effective way to go about realising it. I listened with sympathy to the case made by the hon. Member for Birkenhead. I recognise that he has requested that we leave something in the Bill, for it to be considered further in another place. There is no hon. Member whose request I would rather accommodate, but I regret that, on this occasion, I am unable to do so.

Amendment, by leave, withdrawn.

Amendments made: No. 45, in page 7, line 40, leave out 'or'.

No. 46, in page 7, line 41, at end insert—

', Or

(d) those set out in paragraph 4 of that Schedule,'.—[Mr. Streeter.]

Amendment proposed: No. 47, in page 7, line 43, at end insert—

'(8) If the parties' arrangements for the future include a division of pension assets under section 25B of the 1973 Act or section 10 of the Family Law (Scotland) Act 1985, any declaration under subsection (2) must be a statutory declaration.'.—[Mr. Streeter.]

Amendment made to the proposed amendment: (a), after 'assets', insert 'or rights'.—[Mrs. Roche.]

Amendment, as amended, agreed to.