The Child Support Agency and the Old Poor Law

Thomas Nutt | 19 October 2006

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Executive Summary

• The state has long been involved in the maintenance of illegitimate children. Between 1576 and 1834, the so-called 'Old Poor Law' empowered parishes to enforce maintenance orders against putative fathers, whilst mothers were entitled to receive a weekly allowance. The system was administered by individual parishes under the jurisdiction of magistrates.
• Levels of illegitimacy increased across the eighteenth century and parish systems of child maintenance were geographically extensive: by the early-nineteenth century, parishes were recorded as expending as much as 38 per cent of their budgets on unmarried mothers.
• Some parishes were extremely effective in enforcing paternal responsibility and recovering child support payments from putative fathers. In West Yorkshire, for example, they recovered 84 per cent of maintenance payments.
• The CSA has only been able to recover 61 per cent of maintenance payments under the current scheme of assessment.
• The effectiveness of the Poor Law was due in large part to institutional determination to enforce paternal responsibility, which fostered a culture of compliance.
• Sir David Henshaw's recent suggestions for the redesign of child support are a timid response to the challenge of reform, and past examples caution strongly against attempts by the state to withdraw from involvement in matters of child support.
• Other lessons the CSA could learn from the past include the need for: less centralized and bureaucratic procedures, a greater degree of institutional determination, and a greater role for either judicial or administrative discretion.

Introduction

The creation of the Child Support Agency (CSA) was first proposed in a 1990 White Paper, Children Come First, which also suggested the establishment of a formula-based system for the assessment of child maintenance. This represented a significant break with the past, for prior to this, matters of child support had been a matter of family law, and hence fallen under the jurisdiction of the courts. Their administration had thus been discretionary and characteristically variable. Under the 1990 proposals the calculation of child maintenance would in future be standardised and consistent, whilst the administration of the system-in other words, the assessment, collection and enforcement of child support-would be the responsibility of a bureaucratic arm of the Department for Social Security: the CSA.

Reform of the child support system must have seemed compelling to the Conservative government at the end of the 1980s. Lone parenthood accounted for one of the fastest growing areas of public expenditure. In 1980, there were 330,000 lone parents in receipt of Income Support (IS) and by 1989, the number totalled 770,000. Public expenditure was inevitably significant, given the heavy reliance of most lone parents on benefit. In 1989, 70 per cent of lone parents were in receipt of IS, and the cost of benefit had risen from £1.3 billion in 1981-2 to £4.3 billion in 1990-1. This image of lone parents as welfare dependent was further compounded by the apparent failure of the existing legal and administrative systems of child support. Maintenance orders could be made with consent and privately between couples, without recourse to a court, or alternatively orders could be obtained through magistrates' and county courts. The Department for Social Security (DSS) could also pursue a 'liable relative' for maintenance. In 1989, however, only 22 per cent of IS claimants were receiving maintenance, and only 30 per cent of lone parents in total. Rates of maintenance were also typically low, at around £18 per week for a single child.

Finding a means of reducing this apparent welfare dependency had obvious attractions for a government that was ideologically committed to shrinking the state. The White Paper's objective of ensuring that 'parents honour their responsibilities to their children whenever then can afford to do so' also struck a wider political and public chord. The 1980s had seen legal advances in the field of child welfare, with the 1989 Children Act, for example, reaffirming the principle that the welfare of children be paramount. The introduction of an agency dedicated to the enforcement of parental responsibility meant that the government could claim to be acting both in the best interests of the child and the pecuniary concern of the tax payer.

The long title of the 1991 Child Support Act was thus 'to make provision for the assessment, collection and enforcement of periodical maintenance payable by certain parents with respect to children of theirs who are not in their care'. The CSA was operational by April 1993. In principle, most future cases of child maintenance fell under its responsibility, and certainly all lone parents claiming IS or Family Credit were obliged to make a claim for maintenance through the CSA. The Agency was even to take on retrospective responsibility for child support cases made prior to 1993. The basic operating principle was simple: child support obligations on non-resident parents would be calculated using a statutory, non-discretionary formula. These maintenance payments would be assessed by officers employed by the CSA, thereby cutting out the variation and unpredictability of the discretionary court system. The CSA would also be responsible for the collection of maintenance owed by non-resident parents.

The apparent simplicity of these operating principles obscured a radical and significant disjunction in the history of child support. The subsequent troubled history of the CSA serves as ample testimony to this, and the Agency's difficulties been described elsewhere and at length. The CSA can be seen, however, to have failed in all the principal areas of its operation: the assessment, collection and enforcement of child support. Its rigid, non-discretionary formula for the assessment of child maintenance was almost immediately condemned as unfair and unjust towards non-resident parents (typically fathers) and legislation since 1993 has introduced a greater element of discretion. Meanwhile, the present backlog of unassessed cases reflects the failure of the CSA to clear applications and to collect maintenance, whilst the accumulation of debt (now in the order of £3.5 billion, much of it considered to be 'uncollectable') is evidence of the inability of the Agency to enforce its child-support orders. If the modern, bureaucratic welfare state has repeatedly failed to administer a simple and effective system of child support, have previous agencies performed any better?

The long history of child support

The state in various forms has long been involved in matters of child support. An important distinction between the past and the present is that until the twentieth century virtually all cases of child support involved the illegitimate children of unmarried, rather than divorced, parents. In medieval England, such maintenance cases fell under the jurisdiction of the church courts, since canon law placed all parents under a duty to support their children. With the decline of the influence of church courts in the sixteenth century, child support became a matter for secular magistrates' courts and the so-called 'Old Poor Law'. This existed between the late-sixteenth century and 1834, and comprised a statutory framework of laws passed primarily between 1572 and 1601. These placed an obligation upon local communities to care for their own 'impotent' or deserving poor. This duty was to be administered by England's 10,000 parishes, and was to be funded where necessary by a local property tax, or poor rate. By the eighteenth century, this collective system of welfare provision (described by historians as a 'welfare state in miniature') had evolved into a system that could provide comprehensive assistance to categories of the poor such as children, the sick, the elderly, and the unemployed.

It was an Act of 1576 that first alluded to an illegitimate child's existing, implicit right to welfare assistance. The Act sought to displace the financial responsibility for maintenance away from the parish rate payers and onto the child's parents. It thus created an explicit legal and administrative mechanism for child support, based upon the jurisdiction of magistrates and the administrative infrastructure of the parish. By the early-nineteenth century, the system was operating as follows: an unmarried mother in need could approach the parish in which her child had been born. She was then taken before two magistrates where she was expected to swear on oath as to the identity of the putative father. He was then placed under an 'affiliation order' to pay the parish a sum 'weekly and every weekfor and towards the keeping, sustentation and maintenance of the said bastard child'. The mother was also expected to pay a weekly sum, but only 'in case she shall not nurse and take care of the child herself'. Mothers rarely paid such a sum, however, and the law had probably come to reflect what had always been a de facto division of parental labour: mother as parent with care, and father as financial provider. The putative father could be punished by three months imprisonment for non-payment of maintenance. Significantly, the mother was entitled to receive the affiliation sum, whether the putative father paid it or not; the difference being paid from the parish rates. The mother was paid this allowance typically until the child turned seven years old, although sometimes for longer.

There are obvious parallels between the contemporary system of child support, operating since 1993, and that in existence between 1576 and 1834. A mother requiring welfare assistance under both systems was compelled to seek maintenance from the putative father of her child, since under both systems parents were under a legal obligation to support and maintain their children. However, there are also significant differences. Under the Old Poor Law, the administration of child support was devolved to the localized control of parish authorities and jurisdiction for making maintenance orders was in the hands of local magistrates. By contrast, the CSA derives its legal authority from the Secretary of State for Work and Pensions (formerly the Secretary of State for Social Security) and its administration is centralized and bureaucratic. These are important structural points. Of perhaps more significance, however, are the differences between the two systems in operational terms.

Child support under the Old Poor Law

A direct comparison between the CSA and the Old Poor Law is difficult because poor-law administration varied from parish to parish. Its statutory framework had created what was, in effect, a national system, but parochial practice inevitably reflected the welfare needs of individual communities and local customary practices. These were further conditioned by prevailing socio-economic and demographic conditions. Case studies of parishes with good administrative records can, however, provide valuable comparative evidence. This can be supplemented with government surveys and reports which can add a further regional or national context.

The provision of poor-law child support was of growing importance across the eighteenth century. Levels of illegitimacy rose over this period of general population growth, so that approximately one in four first births was out of wedlock at the turn of the nineteenth century. For a small parish with a population of only several hundred people, this could mean that there might have been only one or two illegitimate children born each year. For larger parishes, however, the number of illegitimate children requiring child support and necessitating affiliation orders could be around 15-30 per year in a population of some 5,000 people. Since each parish was responsible for the illegitimate children born within its bounds, there can be little doubt that parochial systems of child support were geographically extensive.

Under the terms of affiliation orders unmarried mothers typically received between 1s 6d and 2s 6d per week in the early-nineteenth century. It is difficult to provide a contemporary equivalence of value, although it is worth noting that in the late-eighteenth century, a typical male agricultural labourer might have been earning around 10s a week. Unmarried mothers would thus be receiving as much as a quarter of a male labourer's wage. Such sums of child support also compared favourably to the allowances awarded to other poor-law recipients, such as the elderly. For example, a female pensioner might have received from 6d to1s 3d a week.

Child-support expenditure could thus potentially have consumed a significant proportion of a parish budget. In Sowerby, a large township near Halifax, West Yorkshire, between 25 and 38 per cent of annual expenditure on the poor was dispensed to unmarried mothers between 1818 and 1828. In Chelmsford, an agricultural market town in Essex, unmarried mothers accounted for between 10 and 15 per cent of expenditure on the poor between 1818 and 1829. These are gross expenditure figures, however, which do not take into account any of the maintenance payments paid to the parish by putative fathers. If the parish could enforce and collect maintenance payments, this could moderate the parish's costs of child support.

Variation in parochial policy and practice created a patchwork in terms of child -support recovery rates. What is surprising, however, is the extent to which certain parishes could be very effective in enforcing paternal responsibility. In West Yorkshire in the 1830s, some parishes were able to recoup as much as 97 per cent of their expenditure upon unmarried mothers from putative fathers. This was certainly not universal across the country, but nor was it unusual. According to a survey of poor-law practices conducted by a government commission in the early 1830s, rates of child-support recovery varied from almost nil to 100 per cent. There were marked regional patterns and West Yorkshire parishes were amongst the most successful in terms of their recovery of maintenance from putative fathers, recouping on average 84 per cent of their expenditure. By contrast, parishes in Essex were able to recover only 34 per cent. A sample of other counties reflects a regional gradation between the two: Cambridgeshire parishes, for example, were able to recover 53 per cent of their child support expenditure.

It is instructive to contextualize these figures with a comparison from the CSA, although it is difficult to draw a direct contrast. However, the CSA does calculate a statistic known as 'cash compliance', which 'measures the proportion of current maintenance and arrears actually paid by non-resident parents against the amounts which are scheduled to be paid'. In other words, this is a measure of the CSA's ability to recover maintenance from non-resident parents. In 2004-05, the CSA's overall performance was 70 per cent, with only a 61 per cent recovery under new scheme cases. In March 2004, this latter rate had been as low as 40 per cent. On these statistics at least, the Old Poor Law in West Yorkshire could claim to have been operating more effectively than the CSA.

A combination of socio-economic and cultural factors were at work. The most successful parishes in terms of recovering maintenance payments tended to have an occupational structure with a high level of industrial employment. This suggests that the male wage environment was important, and since an industrial wage was probably greater and more regular than an agricultural income, industrial workers were more able to comply. Successful maintenance recovery was also correlated to relatively low average affiliation payments (West Yorkshire parishes tended to demand less per week). This further suggests that an individual's ability to meet the demands upon him was important in determining his degree of compliance.

This variability underlines not only the importance of local (and regional) socio-economic environments, but also local cultural factors. There were, for example, Essex parishes that were successful in recovering maintenance payments from putative fathers. This suggests that one of the more important factors in the effective administration of child support was the degree of institutional determination to enforce the law. Such an intangible factor is difficult to quantify, but evidence can be drawn from a number of different sources. A witness before an 1831 House of Lords Select Committee on the poor law thus reported how his parish sought to enforce paternal responsibility:

It is one of our standing rules, if a person...does not obey the laws of bastardy, to regard no expense; we will have them if we follow them from one end of the kingdom to another. It is with great difficulty I have persuaded the parish to come into that, as the most economical system. We advertize them, and take every means to have them brought forward. We formerly had very great inconvenience this way, but we have now hardly any refractory subjects.

This kind of institutional determination was manifest in different ways. In Sowerby, putative fathers could expect to be repaying the parish for many years after the mother had ceased receiving her affiliation allowance. In Chelmsford, the strict enforcement of the law could be accompanied by the exercise of judicial and official discretion. Whilst putative fathers appearing before magistrates for noncompliance were liable to imprisonment, the court could also operate as a forum for negotiation and compromise between parishes and fathers.

Conclusions

Sir David Henshaw's July 2006 proposals for a redesign of the system of child support correctly identify enforcement as one of the key areas in need of reform. Yet the report's principal recommendations are a timid and shortsighted response to the challenge. The proposal that 'the state should only get involved when parents cannot come to agreement themselves, or when one party tries to evade their responsibilities' assumes that it is state intervention per se that is the problem to be solved, rather than the nature or structure of intervention itself. The plan that the state should provide only a 'back-up' child-support service is naïve in the extent to which it assumes that lone parents (typically mothers) will be able to navigate and manage their own welfare and child maintenance arrangements.

History provides a precedent that cautions against the withdrawal of the state from matters of child support. In 1834, a government enquiry declared that 'all punishment of the supposed father is useless', recommending that all legislation that charged putative fathers with maintenance be abolished. Such a drastic act proved to be politically unrealizable, but severe restrictions were placed upon the ability of parishes and mothers to enforce paternal responsibility for child maintenance. The move proved deeply unpopular, and within ten years the government was forced to perform a U-turn. This time, however, the law granted unmarried mothers an 'independent civil right' to pursue putative fathers through the courts, but explicitly prohibited the involvement of parish authorities on the basis that such intervention was inefficient. Yet in the years that followed, unmarried mothers continued to require welfare relief, and frequently lacked the means to go to court. Such women turned once again to the parish, but the authorities this time had no means to secure repayment from fathers. This system was both unpopular and fiscally untenable, and by 1868 the government was forced to accept once again that the state did have to play a more interventionist role in matters of child support. The law was changed, and parishes once more were allowed to seek child support from the putative fathers of illegitimate children.

The Henshaw report, of course, does not propose such an absolute withdrawal of the state from child support cases. Yet the government should be careful not to underestimate the extent to which lone parents may lack the means to pursue child support in a wholly private capacity. As this and other comparative studies have shown, there is a role for the state to play in the effective administration of child support.

In the light of the evidence on the Old Poor Law, the basic operating principles of the CSA can be seen as part of an historical continuum of child support, that has long placed a legal emphasis upon non-resident parents (typically fathers) to be financially responsible for their offspring. Parents with care (typically mothers) have always required welfare assistance, and in an English context this has meant collective, tax-based assistance rather than charity. A concomitant has always been that the state has seen fit to claw back some of this expense, and the history of the Poor Law and the CSA illustrates the variety of ways with which this has been attempted.

From an historical perspective, however, a number of lessons arise from the discussion in this article.

• First, the administration of child support could be less centralized and bureaucratic. Poor-law administration was devolved to the parish, meaning that local officials could deal with local issues, from entitlement to enforcement. Face-to-face administration could humanize a system and bring about the application of methods appropriate to the demands of each case.
• Second, an institutional determination to enforce paternal responsibility can foster a culture of compliance. This objective is perhaps best achieved with a firm, but discretionary approach. Ability to pay is self-evidently important: historically, compliance levels were greatest in circumstances where maintenance demands were relatively low and male wages relatively high.
• Third, the administration of child support could involve a genuine element of either judicial or administrative discretion, in order to account for the variety of circumstances in which both parents with care and non-resident parents find themselves. Hence, whilst the Poor Law could appear draconian in its imprisonment of putative fathers for non-payment, this was at judicial discretion, so the threat of imprisonment could be used as part of a parochial strategy involving both negotiation and compromise.

The author would especially like to thank Professor Nick Wikeley for his help in the preparation of this article.

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• Nutt, Thomas
• Public services and social policy

About the author

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Thomas Nutt is a Research Fellow at Magdalene College, Cambridge and a member of the Cambridge Group for the History of Population and Social Structure. He is the co-editor of Illegitimacy in Britain, 1700-1920 (Palgrave Macmillan, 2005) and Narratives of the poor in eighteenth-century Britain (Pickering and Chatto, 2006). twn21@cam.ac.uk.

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