Child Maintenance Review: A Closer Look

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Father Absence: The grim facts

A few weeks ago we flagged the setting up of a Review Group to consider Child Maintenance in the state and suggested that fathers consider making a submission, the closing date for which was March 26. Men’s Voices has made a submission.

The Review Group had three terms of reference:

  • The current treatment within the Department of Social Protection of child maintenance payments;
  • The current provisions relating to the liable relatives regarding child maintenance; and
  • The establishment of a State Child Maintenance Agency.
Roisin O'Shea
Roisin O’Shea
One of the issues is the determination of how much maintenance the non-resident parent, usually the father, should pay and the drawing up of guidelines.

We heard from one father who has suffered under the draconian laws in force in this country and who has studied the matter. He told us those opposed to maintenance guidelines such as the Law Society, say things like it can’t be done here. However he was able to find quite solid guidelines on the issue in other European countries.

It must be stressed that Ireland has had and still has to a large degree an unenlightened Family Law system which is an adversarial court system which causes parents to engage in bitter legal dispute across the floor of a courtroom over matters of a most private nature. These disputes plunder scarce family resources to the betterment of no one but the lawyers involved. This is an industry which has mushroomed in size over the past 50 years.

Ireland is an intensely litigious country: The Irish Independent reported on 15 October 2017 that the Irish legal industry is worth €2.3 billion annually. Anecdotal evidence indicates that that Family Law Industry is worth more than €400 million and is currently unregulated.

Failings of the Current Regime

A unanimous view is that the current regime whereby fathers are often forced to leave the home while continuing to pay maintenance and mortgage and yet have much reduced access to their children must end. Both parents should have equal rights. The concept of equal joint parenting needs to be instituted in law.

Fathers who are pursued for child maintenance in circumstances where their relationship with their children in respect of time allowed per week is seen as too short, or as unfair, or as not allowing a proper relationship to develop or where there is continuing uncertainty surrounding it, will feel that the law discriminates against them.

There is far too little official recognition of the Importance of fatherhood in the lives of their children and fathers are acutely aware of this. There is overwhelming evidence to show the damaging effects that father absence can have on the lives of children particularly of boys, which is often manifested only later but which is never referred to in official documents.

If the father is forced to leave the home he will have to provide alternative accommodation for himself but also spend extra to provide accommodation for his children on occasion. Under current arrangements this factor is not taken into account. The result often is that the same court that forced the father into substandard accommodation will now penalise him further by refusing overnight stay for the children on exactly these grounds.

In the means test for the OFP (one parent family payment) in the Dept of Social Protection, there is no distinction made in respect of maintenance paid in respect of an adult (spousal/ civil partner/ qualified cohabitant) or a child. Also if there are no housing costs, then income from maintenance is assessed at 50%, no explanation given. We believe that a distinction should be made in the first instance and that income be assessed at 100% in the second.

The amount of time the child spends with each parent is factored into the maintenance calculation

Further inequities came to light when we looked at the liable relatives’ provisions. The DSP can levy an extra payment calculated according to a rigid formula in addition to that imposed by the court. In our view if a court makes a maintenance order that should settle the liability of the liable relative.

Under existing arrangements child maintenance can be arranged between the parties themselves, or with the assistance of their solicitors, private mediators or the Family Mediation Service. We would prefer that this system continue and are opposed to the setting up of a Child Maintenance Agency.

Maintenance payment in other countries

In looking at how other countries assess maintenance several factors came to light not taken into account here.

In the UK, these factors are taken into account in determining how much child maintenance is paid:

  • How many children the person has
  • The income of the paying parent
  • How much time the children spend with the paying parent
  • Whether the paying parent is paying child maintenance for other children.

In Germany contrary to Ireland child maintenance payments are also deductible in income tax

In Holland Child maintenance is usually determined by using a standard calculation, which was introduced in 2013 to simplify maintenance calculations. This calculation is based on net income of both parents during their relationship, which determines the amount needed by the child to keep up the former standard of living. Then the ability of the parent to pay this amount is tested using their current monthly net income and a certain amount of predetermined living costs. The amount of time the child spends with each parent is also factored into the calculation.

According to this link Maintenance payments in Germany are regulated by law meaning that child support is fixed from the outset at a rate determined by both parents. The Dusseldorf Table serves as a guideline. It appears that this enables the calculation of maintenance to be done very swiftly and would serve as a template which could be used consistently across the state.

In Germany contrary to Ireland child maintenance payments are also deductible in income tax returns within limits.

In all cases maintenance payments can quickly be determined contrary to the Law Society’s claim.

In Holland spousal maintenance is also deemed to end in a specified way. From 2020, in principle, the maintenance period is equal to half the length of the marriage with a maximum of five years. So, if parties have been married for three years and two months, one year and six months of maintenance is owed. If parties have been married for 11 years the five year period is applicable.