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Family Law

The leading authority on all aspects of family law

06 OCT 2008

Nick Wikeley - Child Support: the Brave New World

Nick Wikeley, Professor of Law, School of Law, University of Southampton.

The Child Maintenance and Other Payments Act 2008 (CMOPA 2008) received its Royal Assent on 5 June 2008. Parts 1, 2 and 3 of the Act establish the framework for the redesign of the child support system following the Henshaw Report (Department for Work and Pensions (DWP), Recovering Child Support: Routes to Responsibility, Cm 6894 (TSO, 2006)). The 'Other Payments' part of the short title is nothing to do with child maintenance at all - it refers to Part 4 of CMOPA 2008, establishing a new no-fault scheme to make compensation payments to victims of the asbestos-related cancer mesothelioma, a policy matter which also falls within the DWP remit.

As explained in August [2008] Fam Law 787, some provisions of CMOPA 2008 are already in force (see CMOPA 2008 (Commencement) Order 2008 (SI 2008/1476)). Crucially, the requirement that parents with care (PWCs) on income support (or income-based jobseeker's allowance) must apply for child maintenance has been abolished with effect from 14 July 2008 (s 15 of the CMOPA 2008, repealing s 6 of the Child Support Act 1991). The benefit penalty under s 46 of the 1991 Act for those PWCs who fail to comply has also been abolished. So new claimants cannot be required to apply for child support and equally cannot be penalised for failing to do so. So far as existing benefits cases are concerned, those PWCs are still formally subject to the s 6 compulsion but any benefit sanction for non-compliance must be lifted from these cases. In addition, s 1 of CMOPA 2008 has already been brought into force for the purposes of appointing the members of the new Child Maintenance and Enforcement Commission. Lastly, s 35, which came into force on 6 June 2008, confirms that Scottish minutes of agreement, registered in the Books of Council and Session (or the sheriff court books) for preservation and execution, have the same status as a consent order in family proceedings in England and Wales.

As yet, however, most of the new Act remains to be implemented - and when it is, it will make it even harder for the uninitiated to navigate their way around the child support legislative maze. Parts 1 and 2 of CMOPA 2008 are in the form of freestanding legislation. The overall framework for the new Child Maintenance and Enforcement Commission (C-MEC), which replaces the Child Support Agency (CSA), is to be found in Part 1 (ss 1-12). Part 2 (ss 13 and 14) deals with the transfer of functions from the Secretary of State to the new Commission. There is no express provision here for the abolition of the CSA itself, as that body was never mentioned in the Child Support Act 1991 (the CSA is an executive agency within the DWP, established by ministerial edict). At the time of writing it remains unclear as to when the CSA will shut its doors to new business and when C-MEC will start work, and whether this will be an overnight re-launch or a phased process.

For the full article, see October [2008] Family Law journal.

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