When child support re-runs 'Kramer v Kramer'

Child support laws that link contact with maintenance would make children bargaining chips and pit parent against parent, say lawyers
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The Independent Online

Proposed changes to the much maligned Child Support Agency will turn children into commodities and set parent against parent in Kramer v Kramer-style custody and access battles, according to family lawyers.

The House of Lords starts debating the Child Support, Pensions and Social Security Bill this month. The Law Society and the 4,000 member Solicitors Family Law Association (SFLA) are lobbying peers after finding the Government deaf to their pleas to amend the reforms.

Mark Harper, partner in the family law department of City solicitors Withers, said the Government had chosen bureaucratic convenience over children's needs. "The vast majority of people will end up with lower child maintenance than at present," he said. "For high earners, it will mean huge payments which take no account of spousal maintenance or division of capital. That is the price the Government says parents will have to pay to simplify the formula for assessing payments and to make the CSA work."

One of the SFLA's major concerns is that the proposed reforms directly link contact with maintenance, with weekly payments reduced by one-seventh for each night's stay. James Pirrie, partner in the Family Law Consortium in London and SLFA spokesman on child support issues, said: "As currently proposed, we must anticipate US-style Kramer v Kramer custody and access battles (where characters played by Dustin Hoffman and Meryl Streep fought for their son through the courts). Until now, it has been the interests of the child that have decided the outcome.

"We fear resident parents might block overnight stays because they cannot afford to see a reduction in payments, while non-resident parents may insist on the stays to secure a reduction in a level of child support perceived as unfair - regardless of the needs of the child."

At present, the CSA's remit is largely focused on families receiving state benefits - financially independent families generally let the court decide questions of child maintenance as part of the settlement package. However, the reforms allow either parent to tear up a court agreement after a year to seek an assessment by the CSA.

According to family lawyers, this effectively means all settlements will have to follow the new formula which sets child maintenance payments at a fixed rate of 15 per cent of the non-resident parent's net income for the first child, 20 per cent for two children and 25 per cent for three or more children, irrespective of the non-resident parent's ability to pay, the resident parent's income or the actual needs of the child. There is no cap on the amount a non-resident parent could have to pay and there is no right of appeal against a maintenance assessment by the CSA. Sanctions for non-payment include confiscating the defaulting parent's driving licence.

The proposed reforms also take direct account, for the first time, of any new children the non-resident parent becomes responsible for in subsequent relationships. They will receive an equivalent percentage of the non-resident parent's income and the CSA assessment will be taken from the correspondingly reduced income.

One reform welcomed by family lawyers is the ending of the pound- -for-pound claw back of benefit payments which hit parents who had custody and were receiving benefits.

James Pirrie highlighted the SFLA's other concerns - that the CSA's jurisdiction was being imposed on the courts and that the levy on the paying parent's income was open-ended. "A spot-check across existing files shows that the figures may be appropriate for many families," he said. "But there are also cases where the assessment would be twice as high as could be afforded by the paying parent and in others it would be half as much as the receiving parent properly needed.

"The solution lies in differentiating between welfare benefits families and financially independent families, giving the court exclusive jurisdiction over the latter. There also needs to be a cap on the amount a non-resident parent has to pay and the link between contact and payment must be dropped," he said.

Sue Bland, partner in the family law department of solicitors Gordon Dadds, agreed the reforms could cause old-style custody battles. "It certainly puts a price tag on having the child living with you, with the child becoming a very valuable commodity," she said. "It is unhealthy, unattractive and undesirable."

Peter Watson-Lee, vice chair of the Law Society's Family Law Committe, warned fixing the formula for maintenance payments to net income left scope for abuse. He added: "We recognise that the Government has a terrible problem with the CSA which they have to tackle. But in doing so, they have in mind the classic picture of the single mother, probably on state benefits, and the father who has gone off and is not paying anything."

He said what hasn't been taken into account are the "Middle England" families who agree settlements, which could include a clean break, and which the courts then rubber-stamp. "If either parent can break the court agreement after a year, you could not advise clients to do those sorts of deals, so the scope for amicable settlement is gone."