Contradiction ? Absolute legal duty to provide, yet discretion to enforce collection

[Londonbabyland]

There seems to be an allowed 'contradiction in terms' when it comes to Child Maintenance arrears. While under UK family law, there is an ABSOLUTE legal duty of a parent to maintain their child, the parent with care has no right to collect the unpaid maintenance and must use state mechanism (CMS) which is DISCRETIONARY. So, practically speaking, the word 'duty' is actually 'if there's a will' from both the (non)paying parent and CMS collectively to exercise discretionary powers.
And when this was challenged in Ingold Vs Secretary of State for Work and Pensions (2023) the challenge failed because of the very DISCRETION that the state has in enforcement and even if that means hardship, loss of property and even abuse in the case of DV, it's still fine because there is hardship in families with paying parents too.

Isn't this utterly appalling and wholly controversial?

Even Russia treats child support (alimony) as an immediate, non-negotiable statutory obligation enforced automatically and unless paid,the person can't cross the border.

Utterly appalling.

Some years ago it was suggested that there could be a major liability issue for the CMS when it doesnt take recovery action or is incompetent

@JohnofWessex and yet when they are challenged in court, the decisions maintain that their lack of recovery action is well within the 1991 Child Support Act. There is no automatic compensation for maladministration, no duty of care to either parent and no penalties for lack of response.

The CMS enforcement powers are, of course, discretionary. If they were not, they would always have to use them even when there is no chance of recovering any money or the cost of exercising them is disproportionate to the amount of money owed. The question is whether the CMS is using its discretion correctly.

OP misrepresents Ingold. The main claim was that failure to collect and enforce maintenance in the cases of 7 of the claimants was a breach of ECHR Article 8 in that it failed to protect known victims of DA from economic abuse. This failed not because the powers are discretionary as OP claims, but because the court found that the CMS had taken reasonable steps to enforce maintenance and prevent economic abuse. The only exception was the case of BB where the judge found that the CMS should have moved her onto Collect & Pay 6 months earlier than they did but, since the NRP was unemployed during this period, this could not be regarded as economic abuse.

A secondary claim was that the alleged failures in the complainants cases constituted a disproportionate interference with their rights and those of their children. This was bound to fail as the claimants made it clear that they were not alleging a systemic problem and judicial review is available to challenge decisions in individual cases.

A further claim was that failures by the CMS were discriminatory due to the impact on three of the claimants and their children as victims of DV. This failed as the court found there is no uniform failure to take collection or enforcement action that disproportionately affected DV victims - that any failures were particular to the facts of individual cases. The court also found that the claimants had failed to show that victims of DV were more likely to be affected by any failings in the CMS, and that the failure of the Decision Makers Guide to make special provision for victims of DV did not amount to indirect discrimination.

Finally, the claimants argued that failure to enforce maintenance meant the CMS was frustrating the purpose of the legislation. This argument was always going to fail. The whole purpose of the CMS is to secure payment of child support. The fact that it fails in some cases does not undermine this.

The CMS is not perfect. It makes mistakes and sometimes fails to take adequate measures to enforce maintenance. When the CMS fails, it can be challenged through judicial review or referred to the ombudsman. I am not saying this is ideal, but OP's contention that any challenge will fail simply because the enforcement powers are discretionary is clearly wrong.

@prh47bridge Your argument is sound, however mine is not wrong in that the legal and policy challenges, including in High Court, failed on the basis that the current administration of the system is legally compliant. So, whilst it CAN be challenged on paper (complaints, judicial review, ombudsman) it's futile to do so, which brings me back to the practical conclusion that it actually can't be.

The challenge I references in the famous case but there are thousands that are just as demonstrative. Nothing is perfect but the legally compliant that is present at the moment is inconsequential at best.

No, it is not futile to do so. The challenge failed on the basis that the CMS had acted appropriately, not just on the basis that the system is legally compliant. If they had not acted appropriately, the challenge would have succeeded.

For example, in Ms Ingold's case, they had put a lot of effort into tracing the NRP's income, referred him for benefit fraud, put a lump sum deduction order in place, deducted money from his benefits, obtained two Liability Orders, repeatedly instructed bailiffs, tried unsuccessfully to send him to prison and remove his driving licence, then succeeded in getting a suspended prison sentence. The judge decided that the CMS had taken reasonable steps to recover the money from the NRP.

The decision was an overwhelming disappointment (the official responses from organisations like Women Aid are very telling) - half of receiving parents in the CMS are survivors and CMS fails to interrupt perpetrators' tactics.

There's not been a successful legal challenge and the cases that could qualify as non-futile attempts are in fact by paying parents who wanted the calculations reduced,claimed unemployment or non gainful self-employment as opposed to the parents with care who get stuck with CMS after mandatory reconsideration (when CMS decides that they've taken reasonable steps and the MP won't do anything because they already have your vote).

The reality of it all is appalling regardless of the seemingly available 'just' mechanisms.