A Law Society Oireachtas submission has said that children should not suffer because a parent chooses to ignore their obligations to provide for their basic needs. 

The paper says that it is neither “reasonable nor realistic” to expect that lone parents should bear the primary burden of seeking maintenance from the other parent, and that a dedicated agency should be established for this purpose.

The Law Society says that a Child Maintenance Agency (CMA) is “critical” to assist parents in resolving maintenance disputes, and to take on the burden of pursuing and/or enforcing maintenance payments.

Revenue

Such an agency should have statutory powers to engage with other State organisations such as an Garda Síochána and Revenue. 

This marks a shift away from court authority in determining child-maintenance disputes.

Imminent family court reforms aim to shift as many cases as possible away from the courts, freeing up resources for cases requiring judicial input, such as repeated breaches of maintenance agreements or court orders.

In 2018, district courts heard 8,935 maintenance applications.

The Law Society suggests that the dedicated agency should:

1. Provide guidance on appropriate levels of maintenance,
2. Assist parents in reaching agreed arrangements,
3. Assist in (or, where appropriate, bring) court applications to determine maintenance when in dispute,
4. Act as the collecting agent for maintenance payments in appropriate cases, and,
5. Engage in the enforcement of maintenance and the collection of arrears.

The agency will require adequate resourcing of services for the amicable resolution of disputes, the paper says.

Second families

Varying circumstances, such as the income and expenses associated with second families, are complex issues which will require due consideration and comparative analysis with other jurisdictions, the paper adds.

In Britain, the Child Maintenance Service (CMS) may deduct money from the debtor’s bank account or pension.

Deductions-from-earnings orders can be made by the CMS (without the necessity to apply to court), and an employer told to make deductions.

The employer can also take up to £1 every time a deduction is made, to cover costs.

A non-compliant employer risks court proceedings to secure a liability order, which can be registered against deeds or goods, and may also involve freezing bank accounts.

If the debt remains unpaid, the following enforcement provisions are available in Britain.

1. Payment of legal costs,
2. Forced sale of property,
3. Order of disqualification from driving (for up to two years),
4. Warrant of committal.

In the UK, substantial arrears had accumulated where the maintenance agency was the primary collector.

Reform since 2012 was predicated on the belief that a cultural change was needed to encourage separating parents to make voluntary arrangements, as opposed to the parents relying on an agency.

'Hugely problematic'

The Law Society paper acknowledges that enforcement, and recovery of arrears, is “hugely problematic” and will require careful consideration.

“What is clear is that, absent a robust system of enforcement, child-maintenance arrears will continue to be massively problematic and will continue to result in ongoing losses to the State, to lone parents and – most importantly – to children,” the paper says.

A robust regime of powers could include:

• No statute of limitations on maintenance arrears, that is, a lifetime liability extending to a charge on a maintenance debtors’ estate,
• A requirement to obtain specific clearance from the CMA when seeking to administer estates,
• Where the maintenance debtor has passed way, the arrears become payable to the CMA, and,
• Imposition of penalties and interest on arrears, similar to those applying to tax arrears.

Sanctions such as withholding of a passport or driving licence, and powers to recoup maintenance from future assets, including pensions, are also mooted.

'Reasonable level' of support

While the primary obligation for the maintenance of children rests with their parents, the child has a right to a reasonable level of financial support and maintenance, the paper says.

It is a matter for the State to take reasonable steps to ensure that this right is vindicated and to eliminate or, to the best extent possible, to alleviate child poverty.

The Law Society has made the submission as part of the public consultation on child maintenance which is being conducted by the Child Maintenance Review Group.

The body is to make recommendations on:

• Current treatment within the Department of Social Protection of child maintenance payments,
• Current provisions relating to the liable relatives regarding child maintenance, and,
• Establishment of a State Child Maintenance Agency (CMA).

Child maintenance is generally defined as a regular contribution from a non-resident parent towards the financial cost of raising a child, usually paid by the non-resident parent (NRP) to the parent with whom the child lives most of the time ­– the primary care parent (PCP).

I is recognised in all EU countries, and many international jurisdictions, that both parents have an obligation to contribute financially to the support and maintenance of their child.

In an Irish context, this can extend beyond the biological parents of a child to relatives, known as ‘liable relatives’.