Discretionary Decisions and Welfare Considerations by the Child Maintenance Service
The primary piece of legislation in the United Kingdom relating to Child Support is the 1991 Child Support Act
Section 2 of the Act states the following:
Welfare of children: the general principle
Where, in any case which falls to be dealt with under this Act, the Secretary of State or any child support officer is considering the exercise of any discretionary power conferred by this Act, he shall have regard to the welfare of any child likely to be affected by his decision.
The “discretionary power” referred to when any decision is made by the Child Maintenance Service caseworkers where they have a choice. For example (and this is by no means an exhaustive list), the decision to allow a variation, place a person onto the “Collect and Pay” service or impose a Deduction from Earnings Order (DEO) would all count as being discretionary decisions.
A person made a freedom of information request for a set of documents known as “Policy, Law and Decision Making Guidance” and, in there there is a document called “Evidence and Decision Making” which lays out the the process and legal guidance that the Child Maintenance Service has to follow when exercising such discretion.
Reference is made to Section 2 of the 1991 Act and the CMS guidance says the following:
Considering the Welfare of the Child means reviewing any relevant information and evidence and determining whether the relevant discretionary decision if it is made will have a negative impact on any child that it potentially affects. If so, it may be appropriate for a different discretionary decision to be made.
The 1989 Children’s Act says that the Welfare of the Child is the Courts paramount consideration (something you may have heard being referred to as the “Paramountcy Principle” and they refer to something called the “Welfare Checklist“) and the 1991 Child Support Act says that the Child Maintenance Service must have regard to the welfare of the child. But, following the above quoted paragraph from their guidance (and, bearing in mind their duty under the law), CMS staff are given the following “steer” in bold:
However, it is essential to remember that the Act only requires us to have regard to the welfare of the child issues. It is not required to be the first or paramount consideration and in practice, welfare of the child decisions will often have little effect on the decisions being made.
So, the question can be asked – is child maintenance about supporting the child’s welfare? If we look back at the rationale for implementing the original Act then the following may be of interest.
In my view the Bill was not conceived in a reasonable manner. It was not conceived with the object of putting the child first; it was conceived with the object of saving money for the Treasury. I believe that it was conceived on the basis that, having had the pleasure, fathers should suffer the pain. That is not a good way to prepare such a Bill.
If you have a Child Maintenance Service case then you need to ensure that the figures are correct and that the CMS has followed their process with respect to welfare decisions. If they have not done and evidenced these decisions then you will have legal grounds for a Judicial review.
The first step is to send the CMS a letter asking them for an account audit to ensure that their calculations are correct (there are over 30,000 Child Maintenance cases with incorrect calculations at the time of writing). Also ask them for a Statutory Access Request or “SAR”.
We have a draft letter of complaint for you to fill in and send to the CMS to get the ball rolling.
EVIDENCE AND DECISION MAKING POLICY DOCUMENT: LINK TO FILE
CMS TRAINING MATERIAL ON WELFARE DECISIONS LINK TO FILE
In a Family Law system designed for combative parents there is no real allowance for the views of children and any understanding of how Family Law ultimately impacts on children most of all.
We speak for the children in Family Law so that, finally, the children have a voice.