Further, it should not be dependent on the primary care parent (PCP) taking steps to recover maintenance from the non-resident parent (NRP).
The Society’s submission suggests therefore that, in respect of social welfare recipients, the basic level of social welfare to which a lone parent is entitled should be always maintained and not be reduced, even temporarily, due to the refusal or failure of the NRP to pay maintenance, in whole or in part.
If maintenance is being paid, then social-welfare payments should be adjusted accordingly, as at present, the Law Society believes.
Default
Where a default in maintenance payments arises, the PCP should continue to receive all social welfare entitlements without an obligation to seek to re-instate maintenance payments or to recover maintenance arrears.
The recovery of child maintenance in respect of social welfare recipients is best dealt with through a dedicated State agency, the Law Society believes.
This agency would assist in the voluntary assessment and subsequent payment of maintenance.
An agency could assist the parties on an on-going basis with reviews of maintenance in a voluntary and non-contentious manner, the submission says.
A more efficient and responsive model could also reduce disputes and referrals to court processes.
In an Irish context, child maintenance has largely been viewed as a matter of private obligation between parents, where the onus falls on parents to seek to agree maintenance arrangements between themselves, failing which there is recourse to the courts.
The involvement of the State is restricted to circumstances where the PCPs seek to avail of State supports for themselves and their children.
In addition, the State provides certain free support services for the resolution of maintenance disputes (such as the Family Mediation Service) and the provision of free legal aid to financially qualified persons.
Disputes
For those who do not qualify financially for such supports, the entire burden of resolving disputes falls on the parents themselves.
That is true not only for maintenance disputes, but also for all other issues involving children.
What is largely absent from the current system is a consideration of the independent rights of children, the Law Society submission has said.
This absence has been brought into particularly acute focus since the passing of the Children’s Rights Referendum and the insertion of specific rights for children into the Constitution.
Placing the overwhelming burden of resolving disputes on parents is at odds with the State’s recognition that children have rights, independent of their parents or caregivers.
Abdicate role
The State cannot entirely abdicate its role in the vindication of those separate rights of children, the Law Society believes.
That is particularly the case where that burden is placed upon parents who objectively do not have the financial or other resources to enable them to vindicate those rights in an effective manner.
Further, the State cannot entirely ignore the fact that the rights of children are not always aligned to the positions of any of their parents or caregivers.
The adoption of a children’s rights approach to the issue of child maintenance would necessarily involve considering crucial issues affecting children that include:
- The link between child maintenance and the alleviation of child poverty,
- The inter-play between payment of child maintenance and contact between a child and the NRP,
- The importance of reducing the exposure of children to parental conflict.
Lone-parent families suffer far greater from child poverty than children in coupled families.
Research shows that lone parents disproportionately enter lower-skilled occupations — which are typically lower-paid, less secure and often involve short-term contracts.
Poverty alleviation
The State seeks to address this in a limited way by the universal payment of children’s allowance, which can be viewed as a limited form of child-poverty alleviation.
At present, payments by the Department of Social Protection are means-tested and variable. This includes One Parent Family payment up to age seven, since 2013. Thereafter the parent moves to Job Seekers Transition payment, and then to Jobseekers Allowance, when the child is 14.
This system is founded on the assumption that lone parents may be in a better position to take up employment when children are at a certain age.
However, all children are legally dependent on their parents up to the age of 18 years, and dependency, in a family-law context, extends to 23 if a child is in full-time education.
Obliged
The PCP is also obliged to seek maintenance from the NRP and to demonstrate “efforts to seek maintenance” from “liable relatives”.
Failure to do so can result in social-welfare payments being suspended, refused, or cancelled.
For social-welfare recipients, the DSP’s Maintenance Recovery Unit may be involved in seeking the payment of maintenance from the NRP, irrespective of whether it is to be paid to the PCP directly or via the DSP.
At present, the receipt of maintenance payments will reduce the level of social welfare payments being received by the PCP (commensurate with the maintenance being received).
However, if maintenance payments are stopped or go into arrears, the PCP may suffer a loss of income, and may be required to go to court to enforce payment of maintenance. Their social welfare payments may be reassessed accordingly.
In that situation, a PCP may have to apply for a supplementary welfare allowance, which is a means-tested payment.