‘It was fine until I programmed it to devise a mechanism for assessing damages for breach of a CSA avoidance agreement’

District Judge Roger Bird investigates whether, and how, the Child Support Agency can be kept out of parents’ lives

There are many reasons why parties to matrimonial proceedings may wish to regulate their own affairs, or, if future agreement breaks down, to restrict any dispute - about child maintenance or otherwise - to the courts. They might want the security of knowing that the figures agreed between them will not be arbitrarily changed, or they might consider that the court is able to take into account a more varied range of factors than that set out in a fixed formula.


Is there anything that a party to an agreement concerning child maintenance can do to safeguard against the risk of the other party, contrary to the agreement made, invoking the help of the Child Support Agency (CSA) with the result that the matter is removed from the ambit of the courts?


Before April 2003, where the court had made a consent order for periodical payments for a child or children, the jurisdiction of the CSA was in effect ousted, save for cases where the parent with care was in receipt of income support or other state benefits. At that time, the only concern of the parties would be that the parent with care might have to apply for benefit at some future stage. That has all now changed with the amendments to the Child Support Act 1991 effected by the Child Support, Pensions and Social Security Act 2000. By virtue of section 4(10) as amended, a court order only ousts the jurisdiction of the CSA for one year. Thereafter, either parent may apply to the CSA without restriction.


This has one advantage in that parents and courts are encouraged to calculate their orders along the lines of the CSA formula, and the intention is that there should be little difference between a child periodical payments order and a CSA calculation. However, it can in certain circumstances create uncertainty among divorcing parents wishing to achieve a final resolution of their financial affairs, including child maintenance.


What can be done at the time of an ancillary relief order to protect one party from a change of mind on the part of the other?


The first general point is that the jurisdiction of the CSA as such cannot be ousted by the agreement of the parties. Such an agreement would be contrary to public policy and would not be binding on the CSA. But this does not prevent parties making an agreement to oust and agreeing the consequences of any breach. In other words, the agreement does not have the effect of keeping the CSA at bay but would be valid as between the parties.


Such an agreement would normally be recited in the order for ancillary relief made in the court proceedings and could take the form of an undertaking by the parties not to make any application to the CSA, a mere recital of agreement, or both.


What would be the consequences of breach?


In theory, breach might give rise to a claim for damages for the difference between the amounts of the court order and the CSA calculation. However, certain difficulties immediately present themselves. No court order is incapable of being varied, and it might be difficult for a court assessing damages to decide what the court might have done in the event of a variation application. The court would also have to proceed on the basis that the non-residential parent’s income remained exactly the same. Another difficulty, of course, is that it may be one thing to obtain an order for damages but quite another to enforce it.


To be as near watertight as possible, the original order must devise a mechanism for compensation for breach of any term. Where the paying party is under a continuing obligation to make other payments, such as spousal periodical payments, to the receiving party that may seem to be comparatively simple. The order could provide that any CSA payments over and above the child periodical payments stated in the order could be deducted from the spousal payments. The same formula could apply when a lump sum payment remained to be paid at some time in the future.


However, most cases are not like that and another formula must then be found. One good suggestion has been a periodical payments order in favour of the non-residential parent for such sum in excess of the child periodical payments order as the CSA might calculate. That does ignore the fact that orders need to be varied from time to time but at least it could discourage the parent with care from making an application to the CSA. The difficulty would be that a periodical payments order terminates on the remarriage of the payee. Therefore, this would condemn the non-residential parent to a life of being unmarried for as long as there was a child aged younger than 18 years.


Where a property had been transferred from the non-residential parent to the parent with care, there could be a charge over the property for any excess calculated as set out above. As and when the final CSA payments had been made, an application for enforcement of the charge could be pursued.


It must be remembered that it is not always the parent with care who might make an application to the CSA. It is entirely possible that a non-residential parent may do so, after calculating that the child maintenance that he agreed in a fit of generosity after the breakdown of the marriage was considerably more than the CSA would require. The same remedies as those outlined above might apply, with the same defects. Clearly, a continuing periodical payments order, even of a contingent nature, would be inconsistent with a clean break.


The truth is that all devices of this kind are likely to be blunt instruments and it may be thought that they are more trouble than they are worth. While the idea that parents learn to love the CSA may be greeted with derision, at least the formula that the agency operates is relatively simple and easy to calculate. Parents negotiating an order for ancillary relief know what the CSA liability is likely to be and can negotiate the rest of their order in that knowledge. When all the arguments and counter-arguments that might arise on any attempt to enforce one of the devices are weighed up, the conclusion will probably be to accept the CSA as a fact of life and concentrate on more important matters.


District Judge Roger Bird sits at Bristol County Court and High Court District Registry