1. Introduction
1. Child maintenance, which can
be defined as “a regular contribution from a non-resident parent
towards the financial cost of raising a child, usually paid to the
parent with whom the child lives most of the time”,
is increasingly present
in our societies. Due to the changes in family patterns over the
last decades, a growing number of children live with only one of
their parents, with an obligation for the parent who does not have
day-to-day care responsibilities (“non-resident parent”) to contribute
financially to the cost of raising them.
2. The emergence of new family models and the growing percentage
of single-parent families have an impact on a variety of matters.
For instance, such families tend to face a more difficult socio-economic
situation, which translates into a higher risk of poverty, and in
particular child poverty. This issue is not central to the present
report, also in view of the remit of the Committee on Equality and
Non-Discrimination, but it needs to be taken into account when designing
and enforcing relevant legislation and policies. I chose to consider
child maintenance mainly from the angle of gender equality. Indeed,
this is not a gender-neutral matter. The vast majority of single-parent
families in Europe are headed by a mother. This implies that child
maintenance, in its various aspects (notably the way the amount
of the payment is determined, and the consequences of possible non-compliance
by payers) impacts women disproportionately.
3. The Parliamentary Assembly has consistently taken into account
the gender aspect of family life, as well as the need to encourage
fathers to participate fully in it.
Resolution 1921 (2013) on gender equality, reconciliation of private and working
life and co-responsibility focused on sharing parenting responsibilities between
partners but also related to the case of separation or divorce.
It called on the authorities of the Council of Europe member States
to ensure, in that case, that “family law foresees … the possibility
of joint custody of children, in their best interest, which is based
on mutual agreement” (while it should never be imposed). Subsequently,
in
Resolution 2079 (2015) “Equality and shared parental responsibility: the role
of fathers”, the Assembly reiterated its support to a more even
sharing of responsibility between parents, in particular after a separation
or divorce, also as a way of transcending gender stereotypes about
the roles of women and men within the family.
4. I am convinced that separation and divorce should not automatically
lead to fathers disappearing from their children’s lives, but that
they should continue to play a major role in the upbringing of their
children. This is both a right and an obligation that does not cease
in case of separation or divorce. The reality throughout Council
of Europe member States is that in most cases after divorce and
separation children live with their mothers and the non-resident
fathers pay child maintenance. In the light of this situation, I
would like to identify and promote ways of ensuring that child maintenance,
both from an administrative and financial point of view, is reasonably
easily accessible to custodial parents. In view of the current imbalance
between resident mothers and fathers, whenever child maintenance
payments are not sufficient, not guaranteed, or their recovery is difficult,
we may consider that gender equality is jeopardised.
5. In this report, I intend to present the new patterns that
have emerged in Europe in the last decades as regards family life
and explain how divorce and sole residence present considerable
gender differences. I have also analysed how child maintenance is
regulated and how it functions in practice. On this basis, I have identified
measures that should be taken by member States in order to ensure
the payment of child maintenance, in order to tackle child poverty
and ensure that a separation or divorce does not impact disproportionately
on women’s social and economic well-being, as well as on their right
to equality.
2. Marriages
and divorces: new family patterns
6. General trends in Europe show
a decrease in the number of marriages and an increase in the number of
divorces. Although 71.2% of all families in the 28 member States
of the European Union
are
composed of married couples,
the number of marriages
fell from 3.4 million in 1964 to 2.1 million in 2011. In parallel,
the number of divorces increased by 150% compared to 1965.
Outside
the European Union, when we look at Ukraine and Albania, the former
had one of the highest divorce rates in the world in 2014, unlike
the latter which has an average divorce rate.
7. This situation inevitably leads to the creation of new family
models and patterns, such as children living permanently with only
one of their parents (when, following a separation or divorce, sole
residence is decided by the court or agreed between the parents)
or in blended families. Also, this means that today more children are
likely to have divorced parents, even though figures show that the
more children in the household, the lower the chance of divorce
(except in Nordic countries, where the number of children has no
impact on the decision to divorce).
In 2011, 16% of families in the
European Union were single-parent families.
This
percentage is higher in the Nordic countries, the Baltic States
and the United Kingdom and in Ireland, but is lower in southern and
eastern Europe. This regional difference may be the result of cultural
factors, including the influence of the Catholic and Orthodox churches,
and structural ones, such as conservative welfare State models and
the economic situation.
8. In addition to the situation of separated and divorced parents,
we should take into account the situation of parents who have never
been married or in a relationship. Even in this case, the interests
of the child and the rights of the mother should be protected.
3. Gender
differences in divorce and sole residence
9. The gender gap as regards sole
residence is considerable throughout European Union member States, with
on average 13.4% of sole mothers and 2.6% of sole fathers. The highest
gaps are observed in the Baltic States, Poland and the Slovak Republic,
the lowest gaps in Germany, Denmark, Sweden, the Netherlands and Cyprus
(in Norway, 13% of lone parents are fathers
). The high prevalence of mothers
as resident parents after divorce implies the involvement of gender
issues: it is the father who most often has the obligation to pay
child maintenance to his former partner. The mother is then in charge
of the children’s health, education and care on a daily basis, in
most cases having a professional activity at the same time. The
father – as non-resident parent – is in charge of taking care of
the children on a regular, but not daily basis, and needs to financially contribute
to the children’s education and well-being. This obligation usually
lasts at least until the child’s majority. Hence, if the father
fails to pay, it is the mother who initiates the necessary recovery
procedures according to the country’s legal provisions.
10. Over the last decades, women in Europe are increasingly achieving
higher education levels, which give them access to better or more
demanding jobs. This tends to change their vision of motherhood,
which is no longer necessarily their main priority. Career advancement
and professional achievements have acquired increased importance.
Work–life balance measures should be adopted: without these, women
too often have to choose between a high-level professional career
and motherhood. It is for this reason that women marry later, have
fewer children than a few decades ago, or get married but remain
childless when they have jobs with a high degree of responsibility.
11. Until a few decades ago, fathers were considered mainly as
breadwinners, often with only occasional parenting activities. With
the increase of female participation in the labour market and the
development of gender balance in parental roles, the father has
the possibility to bond with his child more: many countries have introduced
paternity leave schemes, the man’s role as a stay-at-home dad is
becoming increasingly popular in developed countries, and task-sharing
as well as work–life balance for both genders has acquired greater importance
in public policy.
12. In spite of these societal changes demonstrating a greater
involvement of fathers in their children’s education, mothers receive
the custody of their child in 85% of cases after divorce. This may
also depend on the fact that fathers often put their career first
and may have to spend part of their working time away from home.
However, conflicts as far as custody of children is concerned are
increasing, since fathers wish to get more involved in their children’s
day-to-day lives.
4. Child
poverty and child maintenance
13. After separation or divorce,
resident parents are confronted by a higher risk of poverty. Figures
show that despite an overall increase in incomes in Europe, child
poverty has grown over recent years, as households with children
earn less than households without children where both members of
the couple work full-time. Figures also show that child maintenance
payments have a considerable positive effect on child poverty: in
countries such as Denmark, Germany, Switzerland and Sweden, for
instance, the child maintenance system has enabled child poverty
to be reduced by 2.5%.
14. According to a study commissioned by the European Commission
in 2014,
younger
single mothers are less likely to have full-time jobs. In addition,
those who are employed part-time are much less likely to have managerial
positions and much more likely to be in non-skilled jobs, or to
work in services and sales, compared to all other groups of mothers.
15. The risk of poverty with which lone parents are confronted
led to policies such as: encouraging shared parenting (for example
in France, Germany and Belgium), strengthening State child support,
establishing rules on the payment of child maintenance by non-resident
parents, as well as maintenance recovery systems in case of non-payment.
Indeed, many countries have implemented rules according to which
the payment of child maintenance is obligatory by legal decision
established by a court after divorce and non-payment is punishable by
law.
16. Single parent associations and support groups are available
in a number of Council of Europe member States. Networking and mutual
support contribute to alleviating the challenges that single-parent
families face, particularly by providing reliable information on
topics including financial benefits provided by the State, domestic
abuse, access to health, childcare and education. Employment and
work–life balance are other areas of intervention of this kind of
network, with a possible positive impact on the risk of poverty.
5. Need
for child maintenance systems
17. Most Council of Europe member
States have established child maintenance recovery schemes, guaranteed
by the State, local authorities or dedicated agencies, for cases
of non-compliance by the payer. In most cases, recourse to these
procedures is only possible once all the judicial options have been
exhausted. In my own country, Austria, and several others, including
France (see case study below) and Germany, the child maintenance
system allows for child maintenance payments to be made upon request
of the resident parent, without the need to initiate legal proceedings
in advance. This is the most effective way of protecting the rights
of the resident parent, both financially and to relieve them of
the burden of taking legal action. The interests of the child are
also more effectively protected by an early intervention of the
State. Surrogate payments will then be recouped from the debtor.
18. Child maintenance is not only needed in order to prevent child
poverty, but also to encourage the non-resident parent to take responsibility
for their children’s upbringing and to protect gender equality in
family income. In most legal systems, the amount of child maintenance
is agreed on by the parents or, in case of a disagreement between
the parties, by a court decision. The payment obligation ends when
the child turns 18, except in some countries such as Ireland, Poland
or the United Kingdom, where it ends when the children finish full-time
education or when they become financially independent.
19. It should be noted that child maintenance differs from the
compensatory allowance, which is paid by one member of the divorced
couple to the other following a judicial decision. Moreover, in
most systems, child maintenance is due to the resident parent, whether
the parents are married or not. It should be noted that today 40%
of children in the European Union are born out of wedlock, compared
to 27,3% in 2000, with huge differences between countries: in Bulgaria,
Estonia, Slovenia, France, Sweden, Belgium, Denmark and Iceland,
a majority of children were born outside marriage, while in countries
such as Greece, Croatia, Cyprus, Italy, Malta, Poland and Lithuania,
70% of children are born within marriage (97% in Turkey).
20. A growing number of relationships and marriages in Europe
are binational: in Germany, for example, this is the case in approximately
14% of marriages (one in seven), with foreign spouses coming from
among others Turkey, Italy, the United States, Poland and Asian
countries. Mechanisms to ensure that child maintenance can be recovered
even when the payer parent lives in another country are therefore
increasingly necessary. The 2007 Hague Convention on the international
recovery of child support and other forms of family maintenance,
and its protocol on the applicable law, which have been ratified
by most, but not all, Council of Europe member States, aims to provide
such mechanisms, based on international judicial co-operation.
6. Case
studies
6.1. Albania
Country
fiche
–
Human Development index: 0,764; rank: 75
– Welfare
State model: post-communist
– Fertility rate: 1.7
–
Maternal mortality ratio (deaths per 100 000 live births, 2015):
29
– Child poverty: 17.4%
– Gender Inequality
Index 2015: 0.267; rank: 51
– Population with at least
secondary education (% aged 25 and older): men: 90.5%; women: 90.2%
–
Labour force participation rate (% aged 15 and older): men: 65.5%;
women: 44.9%
– Women and men working part time as a
percentage of full employment (data 2012): men: 19.2%; women: 28.4%
–
Unemployment rate, 2016: 16.3%
– Gender pay gap: 17.63%
–
Crude divorce rate (number of divorces during the year for 1 000
people): 1.7 in 2011
– Crude marriage rate (number
of marriages during the year for 1 000 people): 8.2 in 2013
|
21. After 1991 and the end of the
communist regime in Albania, the country started a series of structural reforms
towards democracy and free market economy. As in most post-communist
countries, those overwhelming changes had a huge impact on social
affairs, and social protection was among the elements of socio-economic
life that were pushed into the background by policymakers, with
no institutional structure provided in those areas and where there
are thus many shortcomings. The most vulnerable groups, including women
and children, were the first ones to suffer.
22. The complexity and difficulties of family life – socio-cultural,
economic and personal factors and residual traditional patriarchal
values – create a challenging situation for women. In addition,
there is a high rate of domestic violence and high levels of discrimination
based on gender. Cases of child marriage and forced marriage are
also reported. The combination of these elements explains Albania’s
low ranking in the area of gender equality. In 2011-2015, to tackle
these issues, a National Strategy on Gender Equality aimed at strengthening
gender equality by increasing women’s empowerment as well as their
participation in political and economic decision-making was implemented.
23. Albania is one of the youngest countries in Europe, with children
and young adults representing 46% of the population. The divorce
rate is very low, with only 0.2% of children living in divorced
households,
and single-parent
families account for 5.4% of Albanian families.
Divorce is an exception in the
country for cultural and economic reasons. Especially in rural areas,
divorced women are stigmatised. Women who are unemployed at the
time of divorce are deprived of custody of children because of their
insufficient financial means and despite child support provided
by the State.
This
situation leads to family fragmentation, with many children separated
from their mothers and placed in the father’s and the father’s parents’
custody. This aspect of the lone mother’s situation is extremely
challenging and would need attention from policy makers.
24. Albania’s Family Code states that the conditions of a divorce
can either be set by the parents and then approved (or rejected)
by a court, or by the latter if the couple cannot reach an agreement.
Then, the non-resident parent needs to provide child maintenance
and spousal support so that there are no strong discrepancies between
the parents’ living conditions. The amount of child maintenance
is established according to the current and future financial situation
of both parents, which implies the obligation of both parents to
be transparent about their financial situation.
25. The denial of necessary support for the children, parents
or spouse, from the person who is obliged, through a court order,
to provide the support, constitutes a criminal offence and is punishable
by a fine of up to one year’s imprisonment. However, the Family
Code does not present any enforcement procedure as regards child
maintenance. This leads to a lack of monitoring and of a guarantee
of the non-resident parent’s financial participation in the child’s
maintenance, which often affects the child’s and the resident partner’s
living conditions.
26. Divorce outcomes especially affect children in Albania, since
they become at risk of living in poverty due to a low level of income
earned by lone mothers and to the lack of government support. This
situation implies negative outcomes such as child labour and high
levels of illness and disability due to poor living conditions. Some
figures show that the proportion of children living in a state of
absolute poverty (with an income of less than €110 per month) is
17.4% and that almost 2% of children are living in families with
zero income.
27. Two main social assistance cash benefits are provided at local
level by the municipalities and are monitored and evaluated by the
State Social Services at national level: income support aimed at
guaranteeing the minimum standard of living for the unemployed,
and disability benefits. The country does not provide any specific
family benefit or child welfare programme.
However,
the Constitution of the Republic of Albania states that every citizen
is entitled to receive the highest standards of health, elderly
care, childcare as well as specialised education and integration
of disabled people. In 2010, Albania reinstated the profession of
private bailiff, which had been abolished during communist times.
Its role is to guarantee the enforcement of court decisions, among
them child maintenance obligations.
However, the service
is still new, not free of charge and its accessibility in rural
areas is questionable.
28. Despite the scars of the past still remaining in Albania,
the country put significant effort into building institutions guaranteeing
the rule of law and respect for human rights. The enforcement of
child maintenance payments is guaranteed by law, and gender equality
is monitored through independent entities. Thus, many improvements
have been made, taking western European countries as an example
as regards the guarantee of social rights. However, significant
changes are still needed for the country to reach a level of protection comparable
to those observed in western Europe in the area of child maintenance.
6.2. France
Country
fiche
–
Human Development index (2015): 0,897, rank: 21
–
Welfare State model: continental
– Fertility rate
(2016): 1.9
– Maternal mortality ratio (deaths per
100 000 live births, 2013): 12
– Child poverty: 21%
–
Gender Equality Index rank (2015): 19
– population
with at least secondary education (% aged 25 and older): men: 83.2;
women: 78.0
– Labour force participation rate (% aged
15 and older): men: 61.6; women: 50.7
– Women and
men working part time as % of full employment: men: 7.4; women:
30.0
– Unemployment and employment rates: men: 10.8%;
women; 9.9%
– Gender pay gap: 16%
–
Crude divorce rate (number of divorces during the year per 1 000
people): 2.0 in 2011
– Crude marriage rate (number
of marriages during the year per 1 000 people): 3.6 in 2012
|
29. There were 1.6 million sole
parents in 2008 (2.5 times more than in 1968).
In
1968, 8% of children lived with a single parent. In 2005, the figure
was 2.84 million,
or 18%. Overall,
figures show that only 10.3% of children living with a lone parent
are three years old or younger, and that there are fewer children
living with lone parents than with couples. Moreover, the regions
of western and central France are the regions encompassing the fewest
single-parent households.
30. 85% of sole parents are women and 15% of sole parents are
men. There are few single fathers bringing up their children alone
in France, since the child’s custody is more often given to the
mother than to the father. In addition, often fathers are not ready
to give up their job or change their lifestyle to take care of children
on a daily basis. Divorced fathers remarry sooner than divorced
mothers, also as a consequence of their being less often resident
fathers and therefore being more independent. It should be noted
that fewer young children live with their father than older teenagers:
10% of children aged 0 to 6 years old and 18% of children aged between 17
and 24 live with their father. Moreover, in 63% of cases, the single
father has only one child in his custody.
31. The reasons for sole parenthood have changed over the years:
in 1962, 55% of sole parents were widows or widowers. In 2005, this
figure was less than 10%, the main reason for sole parenthood being separation
or divorce.
32. 30% of single-parent households are at risk of poverty, compared
to 13% in other households, and 21% of children are at risk of poverty.
Single parenthood is the first
cause of poverty in France. Moreover, single parents have more difficulty
in accessing housing than other families.
33% of single mothers aged less than 35 years
old have no university education, against 19% of those living in
a couple (probably because of how challenging it becomes for a single
mother to continue her studies). 30% of single mothers earn less
than €1 000 per month. 59% of single mothers are employed, 23.8%
of them work part time and 17.3% of them work on a temporary contract.
33. In France, child maintenance is decided by a court. For a
long time this was a discretionary process without specific rules.
In 2010, the Ministry of Justice first introduced a scale, regularly
updated since then, to help the court to determine the amount. The
court and the social benefits agency guarantee the payment of child
maintenance to the resident parent and advance payments made to
the latter are possible, irrespective of the resident parent’s level
of income. In France, child maintenance payments end when the child
reaches the age of 18.
34. In France, child maintenance is the expression of family solidarity
and is designed to provide the child with the necessary conditions
for development and education. That means that even after the child’s
majority, the resident parent can request child maintenance payment
for his/her education. In that case, the resident parent must provide
evidence of the child’s needs (salary statements, unemployment certificate,
proof of a long illness, and maintenance and education costs).
35. Child maintenance amounts on average to €170 per month and
per child in the case of alternating custody (15% of cases); €172
per child is the principal residence of the child is at the mother’s;
and €118 per child if the principal residence of the child is at
the father’s.
36. When the mother has the exclusive custody of the child, the
father is required to pay child maintenance in 83% of cases. When
the father receives custody of the child, the mother needs to pay
child maintenance in 36% of divorce cases.
However,
it is interesting to note that the figures in practice are different:
68% of children receive child maintenance from their fathers, 3%
from their mother and 29% of children do not receive any child maintenance,
which means that 40% of the owed child maintenance is unpaid in
France and would concern 3 million children in the country.
37. Figures show that in two thirds of divorce cases, the parents
agree on the modalities and amount of child maintenance. However,
in case of disagreement, the parties can use the support of mediation
or conciliation. Both procedures imply the involvement of a third
person who is qualified, impartial and independent and whose role
is to assist the divorcing couple in putting in place a child maintenance
scheme. The family mediator or conciliator promotes communication
between the divorcing parents. His/her intervention is guided by
the principle of the best interests of the child.
38. Public policies regarding child maintenance are focused on
maintaining a relationship between children and parents, both economic
(obligation of financially contributing to the children’s material
well-being, maintenance and education), and social-emotional (sharing
of parental authority, sharing of the children’s custody and involvement
in the children’s life). Hence, public policy has been focusing
on encouraging alternating custody of the child after divorce. While
aiming to guarantee the financial well-being of lone mothers, the
French system makes the child’s well-being the top priority.
39. In 2013, the Minister for Women’s Rights announced specific
measures against non-resident parents who would not pay the child
maintenance to the other parent. Every year, 4 500 people are convicted
for “family abandonment”. The first measure taken following conviction
is attachment of earnings, but the government extended the measure
to an attachment of social benefits, through co-operation with the
family allowance agency. The latter will be entitled to pursue a
non-paying parent in order to compensate the losses. Indeed, in 2011,
the family allowance agency recovered only 15 million euros out
of the 75 million spent to compensate overdue payments, which justifies
the need for a strict framework of child maintenance enforcement.
This new framework is an example of the government’s investment
in child maintenance guarantees.
40. Law No. 873 of 4 August 2014
introduced
new measures to guarantee that single parents entitled to child
maintenance payments obtain the sums due. The CAF (Caisse d’allocations
familiales), is the entity in charge of compensating unpaid child
maintenance. Payment may be requested from the CAF by the resident parent
if the other parent’s payment is delayed by over one month.
41. This new system was experimented for over one year in 20 French
departments and proved timely and relevant. As the experimental
phase was successful, the system was applied to the entire national
territory from April 2016.
42. These regulations are a positive example of shifting the onus
of collecting due payments from the individual to the public authority.
6.3. Spain
Country
fiche
–
Welfare State model: continental
– Fertility rate:
1.3
– Maternal mortality ratio (deaths per 100 000
live births, 2015): 5
– Child poverty: around 24%
–
Gender Equality Index rank (2015): 15
– Population
with at least secondary education (% aged 25 and older): men: 70.9%;
women: 76.7%
– Labour force participation rate (%
aged 15 and older): men: 64.8%; women: 52.3%
– Unemployment
rate (2017): 19.6%
– Gender pay gap (2014): 14.9%
–
Crude marriage rate (number of marriages during the year for 1 000
people): 3.4 in 2011
– Human Development index: 0.884;
rank: 27
– Crude divorce rate (number of divorces
during the year for 1 000 people): 2.2 in 2010
|
43. Spain has achieved significant
progress in the area of gender equality in the last decades, thanks
to a significant body of legislation and policies. The Framework
law on gender equality of 2007, for instance, enshrines gender mainstreaming
as a basic principle of action for all public administrations, that
must be included in all norms and budgets. This law also requires
gender training for all public administration staff and the introduction
of gender issues in the public examinations to enter the civil service,
as well as the use of gender-disaggregated statistics and a gender
impact assessment for new legislation.
44. Parents share responsibility for their children. In case of
separation or divorce, the non-resident parent pays child maintenance
to the resident parent. In case of shared custody, a joint fund
is usually established, in which both parents contribute and from
which they withdraw during the time when they have custody of the child.
45. The amount of child maintenance and the criteria to calculate
it are not indicated by law. It is usually the parents who agree
the sum due, based on the needs of the child and taking into account
their income and expenses. A court may revise the agreement to ensure
that it is proportional to these elements. Orientative tables on
the amount of child maintenance were published in 2013 by the Consejo General del Poder Judicial, the
constitutional body governing the Spanish judiciary system. These
tables are not binding and they are based on the practice of Spanish
courts. The amounts may be adapted to the changes in the cost of
living and the financial situation of parents.
46. At the hearing on 12 October 2017, Ms Amalia Fernández Doyague
presented the situation of child maintenance and the challenges
that single-parent families face in Spain. A lawyer based in Madrid, Ms Fernández
is the President of the Association of Women Lawyers “Themis”, which
provides legal advice in matters that are particularly relevant
to gender equality, such as family law and gender-based and domestic violence.
47. Enforcing court decisions or the agreements between parents
on child maintenance is often challenging. There are approximately
2 million single-parent families in Spain that are entitled to child
maintenance payments; 80% of single parents are women. In case of
non-compliance, a civil procedure may be initiated, but it is lengthy
and often unsuccessful. Debtors often find ways to hide their financial
assets and the execution of judgments becomes difficult if not impossible.
Criminal sanctions are also imposed for non-compliance, but no measures
are taken to enforce the payment obligations during the criminal
procedure. It is worth noting that non-compliance with child maintenance
payments may originate from a variety of causes, including financial difficulties,
but it is in some cases deliberate and should then be considered
as economic violence (a form of psychological violence in which
the perpetrator controls and obstructs the victim’s access to revenue).
48. In the Spanish system, the public authorities may advance
the payments under two conditions: a court decision acknowledging
the non-resident parent’s obligation to pay, and the lack of sufficient
financial means of the resident parent. The situation is so challenging
for mothers (who, as mentioned, represent the overwhelming majority
of resident parents) and the remedies provided by the law are so
clearly inadequate, that Ms Fernández believes that entirely new
types of sanctions should be introduced. Depriving the non-resident
parent of the right to visit their children, she deems, would be
a more effective way of tackling situations of deliberate non-compliance.
While this proposal is interesting, it might be difficult in practice
to distinguish between intentional failure to pay and real economic
difficulties. In addition, children would be the ultimate victims
of such sanctions. However, the elements highlighted by Ms Fernández,
and particularly the psychological repercussions of the child maintenance
system (which in some respects, paradoxically, reproduces and consolidates
a patriarchal vision of the family) should be taken into account
when designing and enforcing legislation in this area. A reform
of child custody is currently under discussion in Spain.
49. The case of Spain, like that of the United Kingdom, shows
how challenging it can be for resident parents to obtain payments
due. The situation of countries that have an otherwise effective
social protection system but leave single-parent families in a vulnerable
situation confirms that more effective measures should be adopted
in this area. The most advanced legislation and policies at European
level, which postulate an intervention of the State at a very early
stage, should serve as a model.
6.4. Ukraine
Country
fiche
– Human Development
index: rank: 0,743, rank: 84
– Welfare State model:
post-communist
– Fertility rate: 1.5
–
Maternal mortality ratio (deaths per 100 000 live births, 2013):
23
– Child poverty: n.a.
– Gender Equality
Index rank (2014): 57
– Population with at least secondary
education (% aged 25 and older): men: 95.9%; women: 91.7%
–
Labour force participation rate (% aged 15 and older): men: 66.9%;
women: 53.2%
– Overall unemployment rate: 9.3%
–
Gender pay gap: around 11%
– Crude divorce rate: 2.8
in 2010
– Crude marriage rate: 6.7 in 2010, 7.8 in
2011
|
50. Despite significant improvements,
notably in children’s health, rights and well-being, introduced
since 1991, numerous issues such as child abandonment and HIV/AIDS
still significantly affect Ukrainian children. Like in Albania,
the transition from a centrally planned economy to a free market
economy resulted in an increase in unemployment, social inequality
and shortcomings in social protection systems. These factors particularly
affect children in single-parent households and in two-parent families
with more than one child.
51. In 2001, Ukraine developed a wide range of social assistance
schemes to support vulnerable people and low-income families: maternity
assistance, one-off benefits after the birth of a child, benefits
for children under the age of three, financial support for single
mothers – with two tranches: one for mothers of children aged up to
6 and one for mothers of children aged 6 to18 – and assistance for
children in care and under guardianship.
52. The divorce rate in Ukraine is high and divorce procedures
are simple. It can take as little as six weeks to obtain a divorce.
Child maintenance payments imposed on non-resident parents are low
(between 300 and 450 UAH, or €10 to €15 a month).
53. Article 141 of the Family Code of Ukraine guarantees equal
parental rights and responsibilities in respect of the child. The
divorce procedure is described in Chapters II to IV of the Family
Code, based on the International Convention on the Rights of the
Child, which provides that the couple can agree on the amount and
recipient of child maintenance, and the conditions for the exercise
of parental rights. The agreement must be certified by a notary,
who may issue an executive act for payment of the alimonies in case
of non-compliance.
54. The child’s custody is decided between the parents and the
child remains under the parent’s financial care until the age of
18. Both parents are obliged to contribute to the financial and
psychological well-being of the child. The non-resident parent participates
in child maintenance in cash or in kind. In cases of disagreement between
the parents, the amount of the child maintenance is decided by a
court as a part of the non-resident parent’s salary or a fixed monthly
amount. The latter should be no less than 30% of the minimum living
cost for a child of a given age.
55. The residence of a child under 10 is decided between the parents.
After the age of 10, the child’s residence is decided between the
parents and the child. Past the age of 14, children can choose their
place of residence themselves.
56. Parents decide together the modalities of the child’s upbringing,
and the resident parent does not have the right to prevent the non-resident
parent from maintaining communication with the child, unless it
harms the child’s well-being. The modalities of the child’s upbringing
can be defined in writing and registered by a notary. The non-application
of the measures of the document is punishable with financial compensation.
57. There is a possibility for the resident parent to obtain child
maintenance from the State if there is a lack of payment of the
due amount by the non-resident parent. The court has the possibility
to decrease or increase the amount of child maintenance in view
of possible changes that might occur in living conditions and health as
well as the life situation of the child and of the non-resident
parent. In case of voluntary non-compliance by the non-resident
parent with the payment of child maintenance, the enforcement is
ensured by the court through seizures of the non-resident parent’s
property, salary, pensions or benefits and the Court can impose penalties.
58. Public benefits are provided to single mothers. Only single
mothers who have applied through social protection agencies are
entitled to receive them. However, many single mothers are not aware
of their eligibility to receive the State benefits corresponding
to their situation and the other legal protection measures applied to
them (for instance, a single mother cannot be fired if she has in
her care a child under the age of 14). This lack of awareness and
information places women in a situation of vulnerability. In 2008,
almost 25 000 single-parent households and 54 000 children were
receiving social benefits of this kind. The number of single-parent households
is higher, but the lack of access to information prevents single
parents being included in the system and benefiting from the necessary
protection. This phenomenon has the consequence of hampering the
social profiling of vulnerable families as well as their mapping.
59. In May 2017, Ukraine’s Commissioner on Children’s Rights announced
that a draft law to amend the legislation on child maintenance was
under preparation.
The Commissioner explained that
one third of the claims that his office received concerned the collection
of child maintenance. That amounted to almost seven million applications.
A new law was therefore necessary to better protect the interests
of the child and to encourage more responsible parenthood. The new
draft legislation is based on the principle that the child (not
the resident parent) is the holder of the right to child maintenance,
while the adult living with the child only manages this right. In
addition, a new, simplified judicial procedure would be introduced,
which would take only three days from the launch of the proceeding
to the court’s decision on child support. Moreover, the minimum amount
of child support would be increased from 30% of the minimum living
cost per child to 50%. In addition, the person who files the claim
would not have to attend the court hearings and may file the claim
from where they reside.
60. Under the provisions of the draft legislation, the court would
take into consideration whether the child maintenance payer is in
possession of moveable and immovable property as well as money.
The aim is to better protect the child’s interests when child support
payers hide their actual income and pay the minimum wage amount.
“If one of the parents is in possession of expensive property and
vehicles, lives in a luxury house, often travels abroad and at the
same time claims to be getting a minimum wage, a child support payee
may demand a bigger payment upon presentation of proof to the court”,
said Oleh Prostybozhenko, attorney-at-law and head of the Center
for family law studies, at the presentation of the draft law.
61. The new measures introduced by the above-mentioned draft law
are steps in the right direction. As I pointed out, the most effective
way to protect the interests of the child and the rights of the
resident parent should be based on advance payments made by the
State. The proposed reform does not envisage introducing such a
system. However, at least it simplifies the legal procedures that
resident parents need to undertake to obtain child maintenance in
case of failed or irregular payment. This is a positive element
of the reform. Endeavouring to estimate the real income of the payer,
and to adapt the amount of child maintenance payment to their actual
standards of living, is also to be welcomed. It should be stressed
that if this reform is approved, actual enforcement will be crucial.
62. Further efforts should be made to improve the practical functioning
of the child maintenance system in Ukraine. Particular attention
should be paid to monitoring non-compliance with divorce decisions
and child maintenance obligations. Widespread cases of failure to
pay child maintenance represent a real gender issue in the country
at the moment. In addition, the public should be adequately informed
about the available public benefits. The figures of single-parent
families applying for State benefits, which I referred to above,
are disproportionately low.
6.5. United
Kingdom
Country
fiche
– Human
Development index (2015): 0,909, rank: 16
– Welfare
State model: Anglo-saxon (Main characteristics: relatively low level
of total State spending, and low level of expenditure on social
protection)
– Fertility rate (2016): 1.81
–
Maternal mortality ratio (deaths per 100 000 live births, 2013):
8
– Child poverty: 30.3% of children are at risk of
poverty
– Gender Equality Index rank (2015): 28
–
Population with at least secondary education (% aged 25 and older):
men: 99.9; women: 99.8
– Labour force participation
rate (% aged 15 and older): men: 68.7; women: 55.7
–
Women and men working part time as a percentage of full employment:
men: 11,2; women: 40.9
– Unemployment rate: men: 5.5;
women: 5.1
– Gender pay gap: 18%
– Crude
divorce rate (number of divorces during the year per 1 000 people):
2.1 in 2011
– Crude marriage rate (number of marriages
during the year per 1 000 people): 4.5 in 2011
|
63. There are 2.5 million separated
households in the United Kingdom and around 3.7 million children
living in this kind of family, which places the country among those
with the highest rate across the Council of Europe area. In comparison,
9.3 million children live with a couple and 320 000 live in another
type of household; 48% of couples divorcing in 2012 in England and
Wales had at least one child under 16.
64. The United Kingdom is also among the countries with the highest
rate of teenage pregnancies, which tends to increase the number
of single mothers who haven’t graduated from higher education. Couples
usually have their first child at the age of 30 whereas single parents
have children around the age of 20. The average age for divorced
people is 45 for men and 42 for women.
Figures show growth in employment
rates among households in the United Kingdom. An increase of employment
rates among lone parents has also been observed (more than 20 percentage
points since 1996), due to the government’s policy initiatives aimed
at lone parents’ employment (the New Deal for Lone Parents, from
1998 to 2011, and from 2008, the changes to Lone Parent Obligation).
Nonetheless,
of the 1.4 million children living in a workless household, almost
70% lived with only one of their parents.
65. In 2004, 21.9% of parents received child support and 2.8%
of families made child support payments, but a majority of single
parents do not receive any child maintenance. Figures show that
approximately half of single-parent households live under the poverty
line: low pay and job insecurity being the main reasons for this phenomenon,
added to the lack of child maintenance and child support.
Single
parents often resort to juggling more than one job or increasing
their working hours.
66. Historically, the first legal act mentioning child maintenance
was the Act for the Relief of the Poor of 1601. In the 19th century,
the law stipulated that the parish had the power to recover child
maintenance from fathers of children born out of wedlock. From 1993
to 2012, the agency responsible for calculating and enforcing child
maintenance payments was the Child Support Agency (CSA).
67. From 2012, the child maintenance system has been progressively
reformed in England, Wales and Scotland, to improve the overall
situation regarding overdue payments: “Two thirds (64%) of resident
parents on out-of-work benefits do not receive any child maintenance
from their child’s other parent.”
In
the United Kingdom, child maintenance is paid to the child until
the age of 18, but might be granted even after that age for children
who undergo specific professional training.
68. Today, the system encompasses a new entity called the Child
Maintenance Service (CMS) and the pre-existing Child Maintenance
Options (CMO) has become a “gateway service”: parents must now first
contact the CMO before they can apply to the CMS. The first step
to child maintenance is an agreement reached between the parents.
Indeed, the CMO promotes “family-based arrangements”, encouraging
separating parents to work together by making their own arrangements.
The CSA is being gradually closed down and replaced by the CMS (this
phase was due to be finished by the end of 2017 but has recently
been extended).
69. The CMS calculates the amount of child maintenance in case
of disagreement between the parents.
It
also has the role of finding the non-resident parent if his or her
whereabouts are unknown. It sorts out parentage conflicts, applies
the yearly revision of child maintenance and enforces payments.
Except in very specific circumstances,
parents are put in the “Direct Pay” service, where payments are
made directly between parents (for instance by standing order).
If a receiving parent reports non-payment to the CMS, the CMS should then
take steps to ensure a payment is made or move the case over to
the “Collect and Pay” service.
70. Collect and Pay, introduced in 2014 is used when the CMS must
step in to collect maintenance, because a payment has not been made
or is not being made in full. The CMS can take enforcement action
in the Collect and Pay service to recover arrears and ensure that
payment is made (for example, by taking out a liability order, which
opens the doors to further enforcement, such as deductions from
earnings). Collect and Pay involves significant fees.
71. The British child maintenance system provides parents with
the possibility and the freedom to determine the amount of child
maintenance, which offers more privacy and encourages compromise.
The aim of the reform was to make the procedure less stressful for
the parents and the children, and to cut down on costs and fees.
The encouragement for parents to reach a peaceful arrangement might
also have the consequence of making their relationship as a divorced
couple sharing custody of a child less conflictual. It is still
too early to assess whether the intended outcomes of the reform
have been achieved.
72. The current system testifies to a will to correct the inefficiency
of the previous one. However, it has several shortcomings. In particular,
the high fees that parents need to pay for the CMS to help them
find an agreement or when a paying parent is absent, impossible
to track down or simply refuses to pay might be particularly challenging
for low-income parents. This might also be considered discriminatory
in that it affects mothers disproportionately, as they generally
have a lower income than fathers. In a few years, the system should
be adequately assessed and, if necessary, improved.
7. Conclusions
73. As emerged clearly from the
research work and the hearing held with the participation of experts
directly involved in child maintenance, single-parent families,
most of which are led by a woman, face multiple challenges in their
everyday life. Their financial situation is often delicate and the
risk of poverty is higher than the general average. This is the
result of a combination of inequalities that women still face, in
particular in the work place, despite the progress achieved in gender
equality in recent decades.
74. There is still a pay gap, which at the end of a career determines
a wide gap in pensions; segregation by economic sector, with more
women employed in industries providing less-well paid jobs; the
so-called glass ceiling, that is the difficult access of women to
high-level posts. These forms of discrimination, combined with the
lack of flexible working arrangements such as teleworking and flexible
working hours and with insufficient childcare services, contrive
to make it extremely difficult for single mothers to work and support
their family adequately.
75. Single parents are usually entitled to child maintenance payments
to be made by the non-resident parent, most frequently the father.
When for various reasons the payments are delayed or not made, the interests
of the child and the rights of their resident parent should be effectively
protected. The best way of doing so is through payments being made
by the State upon request of the resident parent, without the need to
initiate legal proceedings. This is the most effective way of protecting
the rights of the resident parent, both financially and to relieve
them of the burden of taking legal action. The interests of the
child are also more effectively protected by an early intervention
of the State. Surrogate payments will then be recouped from the debtor.
76. It is not acceptable, in prosperous countries with effective
social security systems, such as Council of Europe member States,
that children grow up in poverty and the parents living with them
face the risk of social exclusion.
77. Progress in this area requires a far-reaching approach, encompassing
legislation and policies aimed at improving the situation of women
in the workplace but also at encouraging the sharing of child upbringing responsibilities
between parents, whether during a relationship or marriage or in
case of separation and divorce.
78. Therefore, a wide range of measures recommended in the past
by the Assembly in the areas of parents’ rights and the reconciliation
of work and family life are relevant to the situation of single-parent
families and I deem it necessary to refer to the following previous
texts adopted by the Assembly:
Resolution 1921 (2013) on gender equality, reconciliation of private and working
life and co-responsibility;
Resolution
1939 (2013) on parental leave as a way to foster gender equality;
and
Resolution 2079 (2015) “Equality and shared parental responsibility: the role
of fathers”.
79. In view of the gender breakdown of single-parent families
in Europe today, protecting the rights of resident parents to child
maintenance is an important step in the path towards achieving equality
between women and men. Many other steps are necessary; as the various
forms of inequality mentioned above are closely interconnected,
efforts should be made to tackle them in all areas.