United Kingdom Journals

The UK Child Support Agency: A Step Towards EU Co-operation in the Field of Family Law

Claire Archbold (LLB)

Lecturer in Law
Queen's University of Belfast

and

Helen Xanthaki (LLB, M.Jur.)

Lecturer in Law
Queen's University of Belfast

Copyright © 1996 Claire Archbold and Helen Xanthaki.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

Increasingly, European Union (EU) member states are having to wrestle with the dilemma of absent parents who do not discharge their obligation to maintain their children, leaving them to be supported by state social welfare payments. The implementation of the free movement of persons creates a further transnational dimension to this problem. The authors suggest that a common solution should be introduced throughout the EU and consider whether the introduction of the innovative Child Support Agency (CSA) in the United Kingdom (UK) could serve as such a solution. For this purpose, the authors present the legal framework of the CSA and assess its suitability for implementation within the two main civil law jurisdictions of France and Germany. The authors conclude that the CSA in its present form would contravene the well established constitutional principles of the separation of powers and of the independent judiciary but suggest that the incorporation of certain elements of the CSA, located within the traditional judicial child maintenance system, would provide the best way forward for the further co-operation of member states in the field of family law.

Contents

Introduction
A. The UK approach to child maintenance Background to the Child Support Act 1991

Structure and location of the CSA
Procedure of the CSA
Classification of Agency decisions
Appeal and Review of Agency decisions by the courts

B. The CSA in the light of civil constitutional theory

The principle of the separation of powers
The principle of the independence of the judiciary

C. Child maintenance in France and Germany

Child maintenance in Germany
Child maintenance in France
Does a common position on the issue of child maintenance already exist within the EU?

Conclusions

Bibliography

Introduction

The furtherance of the welfare of the child/ren, especially during and after a painful divorce, seems to be the main common aim of most national family and divorce regulations, both within Europe and elsewhere, and the protection of the child/ren's financial interests is vital to this aim. However, despite the repeated and persistent attempts of most modern judicial systems to provide the child/ren, both within and outside marriage, with an effective procedural and substantive remedy for the payment of child maintenance by the debtor parent/s, an effective judicial route guaranteeing payment of child maintenance, at least in the majority of cases, is yet to be discovered.

The recent attempt of the UK government to meet this need took the form of a "Next Steps" agency, the Child Support Agency (CSA), whose main aim is to ensure full and prompt payment of maintenance for all children. Within the UK the introduction of the CSA received mixed responses from both academics and journalists. However, it is now accepted that, despite some persistent administrative problems, the CSA constitutes a positive step towards the solution of the problem of parents who fail to fulfil their child maintenance obligations. The question arising at this point is whether, in an era of increasing co-operation amongst EU member states, the CSA could be adopted as a long- term policy in the field of child maintenance by all member states.

The adoption of a common position presents numerous benefits. In an era where EU nationals take advantage of economic, as well as political and legal, integration through the increasingly frequent intra-EU family migration, mixed nationality marriages and changes in the work or domicile locations of one or both parents, the prevalence of a common formula of child maintenance evaluation and payment could facilitate the member states in their commitment to effectively tackle the problem of late or non-payment of child maintenance, irrespective of the nationality and place of residence of parent/s and/or child/ren. Such is the importance awarded to the EU member states' co-operation in the field of Justice and Home Affairs, that the Treaty on European Union (the Maastricht Treaty) in Art K 1(6) has expressly provided for the judicial co-operation of member states in civil matters. This would clearly cover any court co-operation in the enforcement of orders of child maintenance. However, mere judicial co-operation has not proven adequate so far. The need for further collaboration, on a legislative and/or administrative basis, is becoming gradually more evident, as the problem of child maintenance becomes more wide-spread.

Having established the necessity of further co-operation in the field of child maintenance payment, the authors will attempt to explore the possibility of using the CSA formula as a common starting point for collaboration amongst Member States. In order to achieve this aim, the authors will begin with a brief presentation of the CSA as introduced in the UK. Particular emphasis will be given to the structure of the CSA, its procedures and types of decisions, as well as to the review of the CSA decisions by the courts. The authors will proceed to explore the possible reception of the CSA within continental jurisdictions. For this purpose, reference will be made to the constitutional principles of the separation of powers and of the independent judiciary as these are implemented in continental constitutional theory and practice. The authors will also present alternative solutions to the problem of child maintenance provided by some continental jurisdictions. Thus, it will briefly refer to the relevant legislation in two countries with long civil law traditions, whose legal provisions have greatly influenced most other European civil law jurisdictions: France and Germany. This reference will also lead to an assessment of the existence of a common position on child maintenance payment amongst the Continental EU member states. If such a common position already exists within the Continent, the CSA, despite its accomplishments in the UK, will stand alone and be impossible to emulate within the EU.

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A. The UK approach to child maintenance

Background to the Child Support Act 1991

Prior to the introduction of the CSA, in the UK the obligation to maintain children was thought of as suitable for enforcement by the courts (Domestic Proceedings and Magistrates' Courts Act 1978, s 2; Matrimonial Causes Act 1973, ss 22-24; Children Act 1989, schedule 1, para 1). Application for child maintenance was made to the court by the parent with custody of the child. Where the parents were unmarried, the circumstances in which maintenance could be claimed and its amount were limited. Where the parents were married, however, the financial provision available was potentially unlimited (Matrimonial Causes Act 1973, ss 22-24A), and the court had to consider an impressive array of factual matters before reaching a decision (Matrimonial Causes Act 1973, s 25, as amended by Matrimonial and Family Proceedings Act 1984, s 18). The value of a system based on such great judicial flexibility was recognised to be that it allowed the court to take into account the infinite variety of circumstances which might occur in a case without forcing judges into a statutory straitjacket.

In addition to being a perceived advantage, however, this was also one of the anomalies of the old system &endash; that although decisions on child maintenance are taken by a court, they may be argued to be not in their nature judicial decisions, based on the application of legal rules; but, as the statutes in question require a decision which takes into account all the circumstances of the case, to be essentially discretionary and therefore more akin to administrative decisions (Domestic Proceedings and Magistrates' Courts Act 1978; Matrimonial Causes Act 1973).

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Structure and location of the CSA

The new UK solution, by contrast, may be argued to be a mechanism by which an administrative body takes a judicial decision. The idea of enforcing and collecting child maintenance by administrative rather than judicial means had been mooted in the UK as long ago as 1974, when the Labour Government considered (but did not implement) it as a way, along with guaranteed maintenance allowances and day care facilities, of assisting one parent families (Report of the Committee on One Parent Families, Cmnd 5627). However, for the Conservative government under Mrs Thatcher, the proposal was not seen as part of a wider system to assist the unfortunate, but as a way to "make [absent parents] accept their financial obligations" (Smith 1991, p 644). The Child Support Act was designed to privatise responsibility for children, and in particular to ensure that parents and not the State bore the financial burden of raising them. In Parliament, Mrs Thatcher made it clear that the UK Government was not going to follow other European countries by payment of maintenance advance or by subsidising child care to allow single parents to go out to work (Eekelaar, 1991, pp 15-21).

The relocation of child support enforcement mechanisms in the executive came at a time when the government was restructuring the Civil Service into a large number of decentralised, semi-autonomous agencies, and it was this form which was chosen for the new CSA. Introducing the Child Support Act in Parliament, the Lord Chancellor said:

"...a CSA will be established as a next steps agency under the authority of the Secretary of State for Social Security. The agency will trace absent parents, investigate the parents' means and assess, collect and enforce payments of child maintenance...As a next steps agency, the agency will have no independent existence in statute. The powers that it will need to do its work are, therefore, expressed as powers of...the Secretary of State for Social Security." (HL Deb vol 526, col 770, 25 February 1991)

From 1988, the Conservative government in the UK has changed the unified civil service which had until then carried out the business of government to a new system in which policy has been made by government departments, supported by a very small central civil service, but implemented by so-called 'Next Steps Agencies'.(1) These small, decentralised bodies are run at arm's length from government, with the watchwords of better management and efficiency. Bodies ranging from the Companies Registry to the Inland Revenue have become agencies, with each local office responsible for its own operations. Traditional methods of constitutional accountability such as parliamentary questions to Ministers do not operate meaningfully within this framework (Bradley and Ewing 1993, pp 217-218). Although the powers of parliamentary Select Committees (Bradley and Ewing 1993, pp 220-223) too are limited in respect of Next Steps Agencies, the CSA has shown that with Agency co-operation, the Select Committee mechanism can still have some effect. It was the Social Security Select Committee's 1994 report on the Agency (Social Security Committee 5th Report), which was directly responsible for the publication of the 1995 White Paper Improving Child Support.

The CSAs Chief Executive's evidence to the Social Security Select Committee, however, reflects the shift in Parliamentary and executive thinking in the UK away from traditional mechanisms of constitutional accountability towards private sector ideas of efficient management and market control:

"I think that Child Support Agencies...are rather unusual in that they are not like business and are also not like the public sector, they are not like social services, they are dealing with private debt but they also have a very strong customer focus...."(Social Security Committee 5th Report, p xi.)

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Procedure of the CSA

Under the Child Support Act it is the Secretary of State for Social Security who has the duty to collect and enforce child maintenance (Child Support Act 1991, s 4). He is obliged to refer applications for maintenance to a child support officer a civil servant whose delegated powers are specified in his/her instrument of appointment (Child Support Act 1991, ss 11 and 13(2). Similarly, appeals from the Child Support Officer's assessment are to the Secretary of State who delegates his function to, in the first instance, a child support officer not involved in the original decision, and then to a Child Support Appeal Tribunal which also acts as part of the Agency. (Child Support Act 1991, ss 18(7) and 20-25). Only if there is a point of law will the case be brought into the court system and even then only at the final appeal stage.

Replacing previous statutory enactments for qualifying children, the Child Support Act, the founding statute of the Agency, sets out the duty of all parents, married or unmarried to maintain children under sixteen (Child Support Act 1991, ss 1(1) and 54). A parent with care of a child discharges the duty by caring for the child. An absent parent discharges the duty by making maintenance payments for the child through the CSA.

Regardless of how much the absent parent is willing to pay, the Agency makes a maintenance assessment according to a formula set out in Schedule 1 of the Act. The formula is based on Income Support rates for the child, the parent with care and the absent parent together with any of his other dependants. Originally the formula was rigid and took into account only limited circumstances. There was no discretion in either the courts or the Agency to depart from it in even the most blatantly unfair circumstances. The Child Support Act 1995, introduced following the White Paper Improving Child Support amends the formula and gives a child support officer discretion to make a departure direction in certain narrowly prescribed circumstances, but the principle that the formula should be applied uniformly remains.

When a child support officer has jurisdiction to make a maintenance assessment, a court cannot make a maintenance order in respect of that child (Child Support Act 1991, s 8). During the transitional period the Agency will administer only new cases. Existing cases will continue to be varied and enforced by the courts until the end of that period. After that the Agency will "take over" collection, variation and enforcement of prior court orders. As all Agency assessments are subject to a biennial review, court orders will have been effectively annexed by the Agency within two years of take-on.

A parent who is not on benefit may choose to seek maintenance through the Agency or make a private agreement. This latter, however, may only be enforced through the normal contractual enforcement procedures. In order to take advantage of the expedited enforcement procedures for family financial provision, s/he must proceed through the Agency. A parent with care on means tested benefit has no choice but to apply for child support (Child Support Act 1991, s 6). If the child support assessment is sufficient to take her/him outside the benefit system, but the absent parent fails to pay, the parent with care will have to reapply for benefit and wait for several weeks, without income, until the claim is reprocessed. If, however, s/he fails to disclose known details of the absent parent's identity to the Agency, deductions will be made from her/his benefit for up to one year (Child Support Act 1991, s 46 and Child Support (Maintenance Assessment and Special Cases) Regulations 1992 part IX). The only circumstances in which this rule will be waived are those in which the person with care or the child would be at risk of harm for example by rape, incest or violence from the absent parent (HL Debs vol 527, col 386, 14 March 1991).

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Classification of Agency decisions

It will already be apparent that there are difficulties in locating the CSA within the traditional mechanisms of constitutional accountability in the UK. Another difficulty which has been mentioned in passing is the classification of decisions as judicial or administrative in UK law. Perhaps the classic definition of a judicial decision was given in 1932 by the Donoughmore Committee, which defined a truly judicial decision as one in which, after the parties present their cases, including evidence of any facts in dispute and arguments on any legal points in dispute, a decision is made:

"which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including, where required a ruling upon any disputed questions of law." (Donoughmore Committee 1932, p 73.)

Administrative decisions, by contrast, normally taken by the executive, are policy-based, and contain an element of discretion. The Donoughmore Committee concluded that it did not matter whether a decision was taken by a court or a Minister &endash; if it met the criteria set out above, it was a judicial decision (Hadfield, 1996, pp 261-262).

Ironically, the UK has moved from a child support system in which a judicial body was arguably taking an administrative decision, to one in which an administrative body is taking a judicial decision. Although the decision of the CSA is made using a computer, the formula is set out in law, and although ancillary decisions such as whether to deduct benefit from a non-co-operative parent with care, or to make a departure order, involve an element of discretion, the primary decision could fairly be categorised as judicial, although essentially mechanical.

This being so, one might ask what protections there are in UK law for the citizen coming before such an administrative tribunal. The Franks Committee, which reported in 1957, was set up to answer this very question, and it suggested that the criteria by which such a body should be judged are those of "openness, fairness and accountability". Its words are worth setting out in full:

"...openness appears to us to require the publicity of proceedings and knowledge of the essential reasoning underling the decisions; fairness to require the adoption of a clear procedure which enables the parties to know their rights, to present their case fully and to know the case which they have to meet; and impartiality to require the freedom of tribunals from the influence, real or apparent, of departments concerned with the subject-matter of their decisions." (Franks Report 1957, para 42).

The last criterion in particular may cause unease in the case of the CSA, and one wonders whether the ability to present the case fully and to have all factors taken into account is really present in a computerised decision, but arguably any defect in the initial procedure may be cured by the provision of an adequate appeal.

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Appeal and Review of Agency decisions by the courts

In the Child Support Act as originally conceived there was no provision for review of the substantive merits of the formula assessment in an individual case. In the revised system following Improving Child Support, limited review is available in two ways. Firstly, 'broad brush' amendments to the formula take into account exceptional travel-to- work expenses and certain previous capital settlements for the benefit of the children in question and secondly discretionary departure directions may be made, allowing departure from the formula where it works injustice in certain closely defined circumstances (Child Support Act 1995). In other jurisdictions with Child Support Agencies, and in particular in Australia, departure directions, made by the courts, are an integral part of the system, allowing the administrative system to be overridden where justice demands it (see Parker 1990 and Harrison 1990). In the UK, a departure direction is made by a child support officer, and the internal nature of this procedure may give cause for concern. A pragmatist might argue that locating the review procedure within the Agency will prevent the courts being flooded with meritless applications by aggrieved parents, but a cynic might argue that it is another way of preventing the courts from interfering with the Agency.

Although the courts are given some role in the appeals procedure, it is minimal. As already mentioned, an assessment is reviewed by a Child Support Officer and then appealed to a Child Support Appeal Tribunal which is still part of the Agency. Only if there is a point of law will there be a final appeal to the courts. Neither the Tribunal nor the court has any jurisdiction over the merits of the case; the question is merely whether the formula was applied correctly. Similarly where courts are used on appeal in the enforcement procedure, their powers are limited in such a way as to allow them only to rubber-stamp procedurally correct decisions of the executive, allowing them no jurisdiction over the question of whether the enforcement procedure chosen is appropriate, or to look further into the circumstances of the case. Appeal of the Child Support Officer's discretionary decision to impose a deduction from earnings order is to the Magistrates' Court, but only on the ground that the order is defective or that the moneys in question are not earnings. It is not possible to question whether the order is appropriate. Appeal of a distress order &endash; an order for seizure and sale of a person's goods &endash; is only possible on the ground that the "levy was irregular" (procedurally incorrect). The Secretary of State may apply to the magistrates' court for a liability order as part of the enforcement procedure, but once the court finds that arrears exist, it has no discretion and must make the order. Only at the last stage of enforcement, where proceedings are brought by the Agency to imprison the absent parent for his/her debt, may the court make a full inquiry into his/her means and determine whether his/her failure to pay is due to some default or neglect on his/her part. Only if it is, may he be imprisoned (Child Support Act 1991, ss 32-35).

The other way by which the courts might be able to exercise control over the Agency is by the supervisory mechanism of judicial review, a process by which the court declares the purported exercise of power by an administrative body to be lawful or unlawful; as being either within or outside its actual powers. Judicial review is only available when all other avenues of redress have been tried, and is not a review on the merits, instead asking only whether a decision is validly taken. It will only be available in respect of the discretionary decisions taken by the Secretary of State or his Child Support Officers (Burrows 1993, para 9.45 - 9.47). This may be one reason for the dearth of applications to date. Another reason may be that the Act is still relatively new (only coming into effect in April 1994), and so any meritorious applicants may not yet have exhausted their other remedies. Whatever the reason, judicial review, available only in a limited number of circumstances in child support cases, has been little used to date.(2)

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B. The CSA in the light of civil constitutional theory

Having presented the structure, functioning and types of decisions of the CSA the authors concluded that the resolution of child maintenance disputes by any authority other than the courts would be unconstitutional within these countries. We will proceed with the examination of the possibility of a transfer of the CSA, or a similar formula, within other EU member states. Such analysis can only begin with the evaluation of the legality of the CSA in the light of modern civil constitutional theory and practice. The issue is of particular importance for the evolution of this paper, as, in the event that the CSA proves unconstitutional within civil Continental jurisdictions, its adoption as a common EU solution to the issue of the enforcement of child maintenance obligations would be impossible.

The first point to be questioned by the civil lawyer is the legality of this apparent exclusion of the courts' jurisdiction in cases of child maintenance. In the civil law system the judgement on disputes between natural and legal persons falls within the exclusive jurisdiction of the national courts, which are the exclusive judicial organs of the State (Spiliotopoulos 1991, p 7). The courts are the only organs that have the power to remove any doubt concerning the compliance with the current national law, applicable in the particular dispute, of acts of natural legal persons or the state (Tsatsos 1992, p 141; Fleiner 1963, pp 12-13). Organs of any other nature (legislative or administrative) lack the authority to judge on any such dispute, since their constitutive acts awarding them judicial power would be considered to have been issued "in violation of authority". Thus, these organs would lack legal personality, any acts issued by them would be "non-existent" from an administrative law point of view and any actions of any persons based on such acts would lack legal value. (3)

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The principle of the separation of powers

The rationale behind this way of legal thinking lies with an old principle of the constitutional law of most civil law countries: the principle of the separation of powers. The principle of Separations des pouvoirs, Gewaltenteilung, Diakrisi Exousion in French, German and Greek respectively stems from the liberal ideas of Locke, Blackstone, de Lolme, the philosophy of the English parliamentarianism of the 17th century and the ideas of Montesquieu as expressed in Art 16 of the 1789 French Declaration. According to it the state &endash; in order to avoid despotism and guarantee the liberty of its citizens &endash; must "distribute its power to more than one, independent and different from one another organs, in such a way as to guarantee that only a part of its power is exercised by each of the respective organs" (Manesis 1980, p 25; Burdeau, Hamom and Troper 1993, p 105). The principle distinguishes between three powers or functions:

1. the legislative function that passes, modifies, authentically interprets and abolishes legal provisions through constitutionally established procedures;

2. the executive function (divided into governmental power and pure administration) which, through administrative acts, deals with the execution of the legal provisions passed by the legislative function; and

3. the judicial function which, through judicial decisions, deals with the punishment of criminal offences and the settlement of legal disputes arising during the application of the law.

The rationale behind this distinction lies in the idea that the power of the state is one and indivisible. This indivisible power is realised through three different functions: the executive, the legislative and the judicial function (Kuenster 1949, p 401; Raikos 1989, p 213). According to the principle itself these three functions must be independent from one another. Thus, the organs exercising each function should not have the power to influence the way in which the other two functions are exercised and each of these organs must be specialised in the exercise of one of the three functions only. Thus, through the limitation and control of each of the three powers by the other two, the principle of the separation of powers guarantees the citizens' political freedom and the state's democratic functioning.

From the analysis of the principle so far it has become clear that in civil law countries the existence of an agency with the current powers of the CSA would be illegal. Since the courts have the exclusive jurisdiction to decide on civil disputes (which include child maintenance disputes) any legal or administrative act awarding an agency the power to judge on such disputes would be non-existent. Such an agency, even if it was set up under the constitutionally established procedures, would lack legal personality and its acts or decisions would lack legal value. Any person (employee of the agency or any other citizen) enforcing the decisions or acts of the agency or acting under the agency's directions would be acting illegally and &endash; in some jurisdictions &endash; could be committing a criminal offence. It follows that in civil law jurisdictions the CSA would not be able to resolve civil disputes or issue decisions on matters concerning child maintenance, since this activity &endash; as part of the judicial function &endash; is exclusively conducted by the national courts. Thus, the existence of the CSA with its current powers and competence would be unconstitutional (and therefore illegal) on the grounds that they directly clash with the principle of the separation of powers in its classical interpretation.

It should be noted, however, that the theory of the separation of powers in its classical sense no longer prevails in modern constitutional theories. Indeed some authors argue that the principle of the separation of powers in its classical sense was never implemented in practice (1980 p 29). In spite of the simplicity and clarity of the principle itself, in practice the separation of functions and the distinction between them is a complicated issue. The matter becomes even more complicated if one takes into account the inability of modern constitutional lawyers to classify some of the basic phenomena of modern parliamentary life. Indeed, in modern parliamentarianism there are functions that do not fall within any of the three traditional powers, such as the constitutional control of the government, the existence and functioning of political parties and pressure groups or even the existence and functioning of the opposition. It is therefore argued that the separation of powers stricto sensu is not the aim of the principle in its modern interpretation. In view of modern constitutional reality, the principle in its modern sense aims to achieve balance and co-ordination between the three functions, while at the same time accepting that in some cases the three functions can not possibly be independent from one another.

The question arising at this point is whether in the light of modern constitutional practice the principle of the separation of powers, in its modern interpretation, would classify the existence of the CSA with its current powers as a case of acceptable interference of one function (the executive) with another (the judicial). The answer to this question seems to be negative. The principle of the separation of powers is still considered one of the basic guarantees of political freedom and its exceptions must be expressly regulated by the constitution and narrowly interpreted by constitutional lawyers.

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The principle of the independence of the judiciary

Despite the limited application of the principle on the relationship between the executive and the legislative functions in the modern state, the principle of the separation of powers is still stricto sensu applicable to the relationship between the judicial and the other two functions. According to T. Renouix in France the legislative function is clearly stronger than the other two, since the executive function is a more executive organ of the decisions taken by the legislative function, whereas the judicial function has power (Renouix 1991, p A-26). Thus, even in the modern interpretation of the principle, the judicial function still remains independent from the other two. In its positive sense, this means that the organs of the other two functions must recognise and respect the acts issued by the judicial organs of the state, whereas in its negative sense this means that all non- judicial organs must abstain from any actions that fall within the competence of the judicial organs. Such is the importance awarded to the independence of the judicial function in modern constitutional theory, that the independence of the judiciary now forms a separate principle of constitutional law. These provisions regulate that the national judges - as the natural persons physically conducting the judicial function of the state, in the execution of their duty have "independent judgement" which should comply with the constitution and the laws of the state only (Manesis 1980, p 36). It seems therefore that the CSA with its current powers would be unconstitutional in modern civil law jurisdictions, since it clashes with the principle of the separation of powers in its classical and modern interpretation as well as with the principle of the independence of the judiciary.

In fact, the content of this latter principle in its positive sense (that all other organs should recognise and respect the acts of judicial organs) seems to indicate that the main course of action awarded to the CSA by its constitutive legislative act (namely the effective retrospective abolition of the courts' decisions on child maintenance) is also unconstitutional. It should be noted here that the abolition of courts' decisions through legislative acts is an established course of action, albeit rare, when the legislative function disagrees with the decisions of the judicial organs of the state. In spite of the profound clash of this course of action with the principles of the separation of powers and the independence of the judiciary, some constitutional specialists argue that &endash;in some cases and in view of the modern interpretation of the principle of the separation of powers&endash; this course of action can be acceptable. In fact, the abolition of courts' decisions by the legislative function is often presented as the only way under which these functions can adapt to the changing conditions of modern life (Georgiadis and Pavlopoulos 1988, p 705). However, F. Fleiner argues that the act that abolishes courts' decisions would lack legal value, as "the legality of every act of the state depends on the competence of the respective issuing organ". Since the courts themselves are the only organs that have the competence to modify or abolish courts' precedents, the administrative act in question would lack legal value (Fleiner 1963, pp 26-27; Balis 1961, p 28). Even these specialists, however, argue that the direct retrospective abolition of courts' decisions through legislative acts is unconstitutional (Keramefs 1983, p 100). The condition under which indirect retrospective abolition of courts' decisions could be considered legal is the general and abstract nature of the act in question, indicating the aim of the legislator to apply the principle of equality to a set of legal relationships. In other words, the act in question should aim to the application of the principle of equality, thus subjecting older legal relationships already regulated by the courts to the legal status that governs the modern similar cases.

From the analysis of the effective retrospective abolition of the courts' decisions on older cases of child maintenance it seems that this course of action could be considered legal in civil law jurisdictions. If one looks deeper into the matter, however, things change dramatically, especially if one takes into account the unconstitutionality of the CSA and the consequent "existence" of all the acts issued by it. Since the regulation of modern child maintenance cases from the CSA has not legally taken place, the legal status of modern cases of child maintenance has not changed. Thus, the regulation of old cases through the effective retrospective abolition of courts' decisions is not based on the application of the principle of equality and should therefore be considered unconstitutional, since it clashes with the principles of the separation of powers and equality.

From our reference to the CSA, in the light of the administrative and constitutional law of modern civil law jurisdictions, it appears that in these legal systems the existence of the CSA, its powers and its main course of action would be considered unconstitutional. Additional flaws in the functioning of the CSA could possibly be found, but they remain outside the scope of an article of this length. Thus, in the search for a common position, which would further co-operation amongst EU member states in the field of child maintenance, one should turn to alternative formulas. It is for this purpose that in its third part the authors will attempt to present the relevant legal provisions within Germany and France, two countries whose civil legislation has influenced almost all Continental jurisdictions. Through this presentation it will be attempted to assess whether a common position on the issue of child maintenance does already exist within the Continent.

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C. Child maintenance in France and Germany

Child maintenance in Germany

In the unified FRG child maintenance and support both inside and outside marriage are the parents natural rights and obligations, whose execution is supervised by the community (4) (Art 6, para 2 GG). Under Art 1602 BGB maintenance is owed only to children unable to support themselves by their parents, who must use all their resources equally for the maintenance of themselves and their children from their present and other marriages (Art 1609 BGB). These resources include income from additional secondary work, bonuses, State benefits, or money paid by third persons for the support of their own personal needs (Pages-Cabanel 1985, p 36; Schlueter 1995, p 166). The lack of personal income on the part of the father does not affect his obligation to financially support the children of a previous marriage. The content of the parents' child maintenance obligation includes "the costs of all needs", namely cost of food, clothes, home, medical insurance, as well as the cost of the child's spiritual, musical and professional development. The parents pay either in natura (i.e. by offering the child housing and care) or by compensation (i.e. a sum of money). There are two types of child maintenance by compensation: The Individualunterhalt (calculated according to the financial situation of the parent and the way of life of the child) and the Regelunterhalt, (regulated under Art 1615 BGB by a government decree and increased every second year so as to adapt to the increase in the average cost of living. The Regelunterhalt is usually recommended by the respective executive authority (the Jugendamt), which is considered the ad hoc tutor of the child. If the income of the parents changes after the divorce, the level of life that the child would have had changes as well; thus, the child maintenance owed by the parents changes dramatically (Graba 1994, p 479).

As far as the enforcement of child maintenance obligation is concerned, there are three systems of protection for the child: the contractual, the judicial and the administrative system. The child may opt for a contractual agreement on maintenance, thus receiving the dual protection offered by the notary before whom the agreement is signed (Art 1934 BGB) and by the court confirming the agreement (Art 1615 BGB). The judicial system offers the child protection in the form of a court decision which can be directly executed against the parent. The administrative system offers the child protection in the form of benefits or compensation due to the parent's death at war, due to nazism or during the parent's military service.

As far as the execution of the obligation is concerned, the child may opt for the acquisition of a court decision allowing it to liquidate the parent's fortune and keep the amount of money owed together with interest (291, 288 BGB). Moreover, the child may choose to obtain a court decision permitting her/him to acquire a detailed report of the parent's sources of income and ordering direct payment from the parent's employer (5) or debtor. A third, indirect option concerns the child's right to pursue payment under threat of a criminal procedure under Art 170 of the Penal Code, according to which failure to pay maintenance constitutes a criminal offence. If the child chooses this route, he/she may pursue the civil execution of the parent's obligation during the criminal trial.

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Child maintenance in France

In France one of the obligations arising from marriage is the mutual, non-transferrable and non-reciprocal obligation of both spouses to provide for the biological, financial, moral and educational development of their children (Art 203 CC). This includes the provision of food, shelter, general expenses and medical insurance/expenses. It goes without saying that the parental obligation of child maintenance is extended so as to cover children born outside marriage, or even adopted children (Carbonnier 1991, p 557). The parental obligation for child maintenance is, in contrast to the German legal system, non- transferable. Thus, in case of death of one of the parents the obligation ceases to exist and the heirs of the deceased have no obligation to continue paying child maintenance (TGI Bayonne, 2 Oct. 1973, J.C.P. 1974, 1117604). The obligation covers everything that is considered necessary for the well-being of the child (Ass.plen. 20 juill. 1979, Bull.Civ. No 6; Gaz. FW. 1979, 2.545, note Viatte). For the calculation of the sum owed as child maintenance the judge considers the child's needs and the resources of the parent. In fact, what is taken into account is the amount of money that the parent would have earned, had s/he used all the possible sources of income at his/her disposal (Civ. 2e, 17 dec. 1965, D. 1966. 465, note R. Savatier; 21 janv. 1976, Bull. Civ. 11, no 17). Obligations from other marriages are also taken into consideration (Civ. Ire, 17 mars 1964, Gaz. Pal., 1964, 2.56). Only when payment in natura is impossible, is the child offered money as a monthly allowance. The obligation of the parent to pay child maintenance and the precise sum owed to the child must be either declared by a court or agreed by the parties and signed in a contract before a notary (30 juin 1982, Gaz.Pal, 1982, 2. 440, note Brazier; also see Versailles, 16 dec. 1980, J.C.P. 1982. 11. 19716, note Lincoln).

French law offers the child a set of five protective legal routes provided that the child has obtained a title executoire (6) from the tribunal d'instance:

(a) Since the court's order for payment of child maintenance is covered by a judicial real security, the child may liquidate the parent's immobile fortune (houses, estates, car).

(b) The child can pursue the "direct payment of maintenance instalments", thus acquiring a court decision allowing him/her to be paid directly by the parents' employer, debtor or even the bank with which the parent has an account.

(c) The child may opt for payment by public organisations, which &endash; after the court decision determining the parent's obligation to pay and the amount owed to the child &endash; have the power to find the parent and enforce the court's decisions on behalf of the child. The advantage of this procedure regulated by Art 293 of the law of 22.12.1984 (as amended by decree 86-1073 of 30.9.1986) lies in its simplicity, since the only actions required on behalf of the child are the acquisition of a court decision and the presentation of the case to the respective public authority. All subsequent legal actions leading to the regular payment of child maintenance are conducted administratively without any further requirement (financial or other) from the child him/herself.

(d) The child may opt for payment through the Tresor Public after the relevant order from the public prosecutor of the tribunal de grande instance within whose district the child is domiciled. The Tresor Public has the power to pursue on behalf of the child all maintenance debtors after the acquisition of a final court decision provided that the child has already used in vain the first two legal routes. The procedure is free for the child. The Treasury is paid by the parent a salary of 10% over the debt (JO, Deb. Senat, p 2162, col. 1).

(e) The child has an indirect way to enforce the court's decision on child maintenance: to threaten the parent who has failed to pay for two consecutive months that he/she will be brought before the criminal courts with the charge of "family abandonment" (Art 357-2 Penal Code).

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Does a common position on the issue of child maintenance already exist within the EU?

This brief reference to the two main Continental civil law systems, the German and French, leads to the assessment that a common formula for the enforcement of child maintenance obligations does already exist in Continental EU member states, not as a result of a conscious decision to harmonise, but by virtue of the proximity of these legal systems. In these countries the resolution of child maintenance disputes, namely the determination of the debtor/s and beneficiaries of child maintenance in each case, the determination of the nature of child maintenance owed and the evaluation of the sum owed in view of the particular circumstances surrounding each case, is left to the civil courts, which have the exclusive jurisdiction to judge on such issues.

The common legal mechanisms set to ensure the payment of child maintenance in the EU Continental legal systems include the child/ren's rights to acquire a detailed report of the parents' income (which may be juxtaposed with the parents' inland revenue declaration), to demand the judicial liquidation of this income, to achieve payment directly through the parents' employer and, last but not least, to bring the parent/s who fails or omits to pay before the criminal courts.

These profound similarities amongst Continental EU member states both in the basic concept of exclusive judicial jurisdiction for the settlement of all child maintenance disputes and in the legal framework for the attainment of its payment have created an excellent collaborative environment in these states' efforts to ensure the payment of child maintenance. The intra-EU judicial co-operation in civil and criminal matters under Art K1 (6) and (7) of the Maastricht Treaty contributes to the final result, which is a theoretically flawless legal framework for the protection of the child/ren and the effective enforcement of child maintenance obligations, even in the multi-nationality and multi-residence family environment of this current era.

Within this collaborative environment the introduction of the CSA, which signifies the creation of a new, radically different, administrative formula for the enforcement of child maintenance obligations, seems to be out of step with the rest of the EU. The question arising at this point is whether the UK should get in line with its EU counterparts and abolish the CSA. In answering this question, one must take into account that in practice the Continental system is not without its imperfections. Perhaps the most obvious one of those is the limited legal aid available to children who, in making use of the exclusively judicial mechanisms for the settlement of child maintenance disputes, wish to bring their case before the civil and/or criminal courts.

It is in view of this undoubted contradiction between the exclusive judicial mechanisms for the achievement of child maintenance on the one hand and the restrictions in legal aid for the use of these mechanisms on the other, that the administrative CSA formula could be used as a refreshing consiliatory tool for the "fine tuning" of the already existing common child maintenance payment system within the EU.

Such a formula could accommodate both tendencies within Europe, namely the judicial solution favoured by civil law countries, as well as the administrative solution suggested by the UK. A compromise along these lines does not seem impossible, since at present administrative agencies do play a role in the enforcement of child maintenance obligations in the civil law countries, either as aids to the child for the completion of the necessary judicial procedure for the acquisition of child maintenance in France, or as initial assessors of child maintenance, should the child so require, in Germany. Such a formula would have the advantage of being enforceable within the whole of the EU against all debtor parents, irrespective of their nationality and the place of residence of themselves or their beneficiaries at any given time.

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Conclusions

The authors' primary intention was to explore the possibility of a common EU solution to the problems surrounding child maintenance payment. It is clear that in an era of increasing movement of persons and capital within the EU, both on a family and on an individual basis, further collaboration amongst member states on the enforcement of child maintenance obligations is necessary. The authors considered the innovative child support system now in place in the UK, which is favoured as a solution to the problem of non payment of maintenance in many common law jurisdictions. The administrative formula- based CSA procedure was then assessed from a civil law perspective in order to evaluate the possibility of successfully transplanting it into the legal systems of the other EU member states. I was concluded that the resolution of child maintenance disputes by any authority other than the courts would be unconstitutional within these countries in view of the basic constitutional principles of the separation of powers and of the independent judiciary as implemented in Continental constitutional theory and practice.

Having rejected the CSA as a viable starting point for the co-operation of EU member states on the issue of child maintenance, the authors looked to the alternative legal routes prevailing in the two main civil law systems, whose provisions have greatly influenced the overwhelming majority of Continental civil law countries: France and Germany. The authors observed that a common solution does exist within the Continent, whose basic feature is a combination of civil and criminal judicial protection to the child/ren that suffer damages due to the failure of their parent/s to pay for their maintenance. This common solution is the result of the common civil law tradition rather than of a conscious decision amongst the states in question to harmonise the child maintenance provisions and seems to be excellent in theory. However, it has not been proven equally successful in practice.

An effective common EU solution would therefore seem to include elements of both the traditional judicial mechanism and the UK's new administrative one. In the initiation and development of the relevant negotiations, the role of the UK can be positive, active and creative. With its innovative and radically different ideas on the resolution of the issue of child maintenance the UK can lead the EU to the discovery of an effective rapprochement between the judicial and administrative formulas for the payment of child maintenance, something that can only benefit European children.

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Footnotes 1 The idea of Next Steps Agencies came from a report to the Prime Minister's Efficiency Unit (Jenkins, Caines and Jackson, 1988) which aimed to "...identify institutional, administrative, political and managerial obstacles to better management and efficiency that still remain; and to report to the Prime Minister on what further measures should be taken" (p 33). See also Drewery 1988 and Hennessy 1991. Back to text

2 The two reported cases to date, R v Secretary of State for Social Security, ex parte Biggin [1995] 1 FLR 851, and R v Secretary of State for Social Security, ex parte Lloyd [1995] 1 FLR 856, were respectively described in the judgements as "inappropriate" and "fanciful and unrealistic". Back to text

3 See decisions 206-209/1929, 365/30 and 531/1971 of the Greek Council of the State (the Greek supreme administrative court). This category of acts exists in the theory and practice of French and German administrative law as actes inexistentes or Nichtakte respectively. Dagtoglou considers such administrative acts as acts that are existent but can be nullified by the respective administrative courts (see Dagtoglou 1984, pp 80-81). Back to text

4 For an analysis of the problems caused by the unification of Germany on family law cases and especially cases of child maintenance, see Horst Heiner Rotax, "indesunterhalt in Mecklenburg-Vorpommern"in (1993) 40 FamRZ (Zeitschrift fuer das gesamte Familienrecht) at pp 143-1150. For an analysis of the German status of child support, see P. Finger Familienrecht mit familiensoziologischen und familienpolitischen Schwerpunkten (Athenaeum Verlag, 1979) at pp 95-409.

Children within and children outside marriage now have equal rights under para 5 of art 6 of the GG. It should be noted that modern family law does no longer use the terms "legitimate" and "illegitimate" when referring to the status of children born within or outside marriage respectively. As far as German law is concerned, the terms ehrliche and unehrliche Kinder is now being used. Parents are not only the natural parents of a child born within marriage, but also the mother of a child born outside marriage. See B. Schmidt-Bleibtreu and F. Klein, Komentar zum Grundgesetz fuer die Bundesrepublik Deutschland (Hermann-Luchterhand Verlag, 1973), at p 206.

The positive obligation of the state is to respect the individuality and "self-responsibility" of the family, whereas the negative obligation of the state is to abstain from any actions that would unjustifiably harm the family. See ibid., p 205. Back to text

5 See Arts 834 ZPO; 829, 166-168 and 835 CPC. As part of the protection offered to the parent, the transfer of the whole salary of the parent is illegal. See L. Pages-Cabanel, op.cit., at pp 116-119. Back to text

6 This is any document that under the provisions of the Code of Civil Procedure can be used as an order to the bailiffs for the execution of the obligation in question. Back to text