C Explanatory memorandum by Ms Liliane
Maury Pasquier, rapporteur for opinion
1 As rapporteur of the present
opinion, I very much appreciate my colleague Ms Gisela Wurm’s comprehensive
summary of the situation in Europe regarding changing family patterns
and their effects on gender equality, as well as the detailed case
studies on child maintenance systems in Albania, France, the United
Kingdom, Spain and Ukraine. I can fully support her recommendation
that the Council of Europe member States should ensure that child
maintenance payments are paid fully and on time, and, in cases of non-compliance,
should substitute themselves and advance payment in the best interests
of the child.
However, Ms Wurm focused specifically on the gender equality
aspect of child maintenance. It is important to keep in mind that
child maintenance is the right of the child (as guaranteed by the
United Nations Convention on the Rights of the Child) – not of a
parent of whatever gender.Note
As rapporteur for opinion
of the Social Affairs Committee, I will thus put the focus on the
children’s rights perspective, recalling the principles which also
underlie the recent Assembly Resolution
on cross-border parental responsibility conflicts: whether
we are talking about the sharing of parental responsibility, about
contact, or about child maintenance, the international and European
legal instruments which govern these situations are based on the need
to strike a fair balance between competing interests (those of the
child, of the parents and of public order), while guaranteeing the
primacy of the child’s best interests.
So, what exactly are the child’s rights? In accordance with
the United Nations Convention on the Rights of the Child:Note
- a child has “as far as possible,
the right to know and be cared for by his or her parents” (Article
- “States Parties shall respect the right of the child who
is separated from one or both parents to maintain personal relations
and direct contact with both parents on a regular basis, except
if it is contrary to the child’s best interests” (Article 9.3).
- “States Parties shall use their best efforts to ensure
recognition of the principle that both parents have common responsibilities
for the upbringing and development of the child” (Article 18.1).
- “States Parties shall take all appropriate measures to
secure the recovery of maintenance for the child from the parents
or other persons having financial responsibility for the child,
both within the State Party and from abroad” (Article 27.4)
It is on this basis that most Council of Europe member States
have developed a system of child maintenance payments, usually paid
by the non-custodial parent (the “paying” parent) to the custodial
parent (the “receiving” parent).Note
As Ms Wurm’s explanatory memorandum
rightly points out, however, the systems differ enormously; often,
only a child’s minimum needs will be covered, and few are the countries
(such as my own, Switzerland) which consider that the child has
the right to the standard of living of both parents, not just the
standard of living of the custodial one.Note
It is also
important to underline that in the vast majority of cases, child
maintenance payments are significantly lower than the actual cost
of raising a child. This means that children are not provided with
equal opportunities in life if the custodial parent cannot make
up the difference between the child maintenance payments and the
cost of raising a child (see Amendment A). Hence the generally higher
rates of child poverty observed in single-parent families.
Obviously, the risk of poverty rises when there is non-compliance
with child maintenance payment obligations, be that intentional
or non-intentional non-compliance (for example, because the “paying”
parent has become unemployed or can no longer fulfil his/her payment
obligations for other objective reasons). This is why some countries,
such as my own (as well as France, Germany and the United Kingdom,
as described in Ms Wurm’s case studies), have instituted systems
which make it possible for the State to advance payment,Note
why all States should do so, in the best interests of the child
(see Amendment E).
6 However, the State’s services are seldom free of charge, even
for the recipient: in my own country, costs may have to be born
by the “receiving” parent if the “paying” parent cannot pay them,
and in the United Kingdom, the service incurs a 4% charge for the
“receiving” parent (in addition to a 20% charge for the “paying” parent).
This can act as a deterrent to “receiving” parents to make use of
the State’s services, in particular if the non-compliance is not
total (i.e. in case of irregular – see Amendment B – and/or partial
compliance). This is why it is important that such services entail
no or minimal fees for the recipient (see Amendment F).
7 Ms Wurm is correct that intentional non-compliance with child
maintenance payment obligations can constitute psychological violence,
and should be sanctioned as such. It is very important in this context
to remember that children in particular can be traumatised by witnessing
domestic violence of any kind (see Amendment C).
8 Even more importantly, it is vital to find sanctions that
work, i.e. sanctions which are going to persuade an intentionally
non-compliant parent to pay child maintenance again (as well as
arrears). Most States in the United States have the possibility
to suspend or revoke professional or other licences (such as a driving licence)
for intentional non-compliance, which can be considered a good practice
that could inform European policy.
9 In paragraph 3 of this explanatory memorandum, I detailed
a child’s rights, which include the right to contact with both parents.
I am thus not in favour of sanctioning a non-compliant parent by
reducing contact rights; this would violate, first and foremost,
the child’s rights to contact. It would also make it possible for
an adult who does not wish to assume a parenting role to avoid the
only support he or she can be forced to give: financial support.
10 Finally, allow me to recall that adults should behave like
adults… and children should not be made to pay the price of adults’
disagreements and conflicts. This is why I would like to propose
(see Amendment G), that mediation between separated parents be promoted
as a means of overcoming conflicts over child maintenance payments.