Who Does the State Really Protect – The Child or Its Own Claim?

• If the state’s claim pushes the obligated parent to the limits of their ability to pay, it does not protect the child in the long term.
• A state governed by the rule of law cannot build a system on the assumption that every obligated parent acts in bad faith.
• Is the state protecting the child, or is it protecting its own recourse claim?

For years, Estonia has had a maintenance allowance system with a noble aim: to protect the child in situations where one parent fails to fulfil their maintenance obligation. The state pays the child up to 200 euros per month in maintenance allowance and later claims this amount back from the obligated parent. The goal is to protect the rights of the child, but in practice a situation has emerged where the same system may create a double obligation – even for a good-faith parent who complies with a valid court decision, write attorney Kristel Vaino and legal advisor Laura Liset Keerov from law firm Lepmets & Nõges.

The issue is not a malicious debtor, but a system that does not account for real-life situations and whose formal application may lead to a substantively punitive outcome. This raises an uncomfortable question: is the debtor not a human being?

Maintenance allowance during court proceedings is paid if maintenance proceedings have been initiated in court and a corresponding court order exists. The state pays the child up to 200 euros per month for a maximum of 150 days.

After the court awards maintenance, the claim transfers to the state to the extent of the maintenance allowance paid (so-called recourse claim). The state then claims the paid maintenance allowance back from the obligated parent, i.e. the debtor. In theory, this is logical: the state temporarily supported the child and seeks reimbursement. The problem arises, however, when the court awards retroactive maintenance for the same period during which the state already paid the allowance, and the obligated parent has paid or is paying this amount based on the court decision. At the same time, the Social Insurance Board (SKA) separately demands repayment of the maintenance allowance for that same period. This creates a situation where one and the same period gives rise to two obligations, effectively requiring the debtor to pay twice.

The SKA relies on the law: the allowance was paid, the court awarded maintenance, the claim transferred to the state, and therefore the money must be repaid. However, an essential question remains unanswered: what happens if the obligated parent has already paid for the same period based on a court decision or is paying it in instalments?

If the obligated parent fails to comply with the court decision, they risk enforcement proceedings. They also cannot ignore the state’s claim, as this too may lead to enforcement proceedings.

A court decision is binding and cannot be unilaterally altered. Maintenance disputes typically arise from conflict, and it cannot be assumed that parents will later peacefully adjust the amounts between themselves. The court decision clearly sets out how and for which period maintenance is awarded, and the receiving parent expects full compliance. They may not accept that part of the claim has transferred to the state, as they rely on the court decision. If the obligated parent fails to comply, enforcement proceedings may follow. Yet failing to pay the state’s claim also leads to enforcement risk. In essence, there are no good options.

Case law does not favour the good-faith debtor either. Courts have held that the state’s claim is not unlawful if the maintenance allowance was paid lawfully and the conditions for transfer of the claim were met. However, this approach ignores the substantive problem: the obligated parent may already have fulfilled the obligation for the same period under a valid court decision. This reveals a systemic contradiction: the state’s claim versus the court decision. The state does not take into account the factual situation or assess the proportionality of its decision.

This leads to a situation where the parent raising the child has received maintenance allowance and, based on the court decision, also receives retroactive maintenance – effectively resulting in a double benefit. At the same time, the state claims the same amount from the obligated parent, placing the entire financial burden on one parent, who suffers a double loss. This is not an isolated case, but a systemic risk arising from a regulatory gap.

This raises the question: is the debtor not a human being whose fundamental rights deserve protection? Certainly, many maintenance debtors act in bad faith and ignore court decisions. However, this should not come at the expense of those who comply. Cases that reach court are rarely black and white. Often, the obligated parent does contribute to the child’s maintenance, yet the other parent still initiates proceedings. If the obligated parent proves partial support or that the child spends significant time with them, the court determines maintenance accordingly, based on the law. Regardless of the background, violations of rule-of-law principles are not acceptable.

Under general principles of administrative procedure, authorities must act proportionately.

Therefore, if the obligated parent complies with the court decision and pays retroactive maintenance, the automatic enforcement of the state’s recourse claim may be unnecessary, unreasonable, and effectively punitive. Individuals must be able to understand the extent of their obligations. Currently, maintenance allowance is typically not addressed during court proceedings, and neither party resolves this issue at that stage. If the SKA later demands repayment, the obligated parent must initiate new disputes to avoid double payment, such as challenging enforcement or initiating administrative proceedings. The system is neither clear nor predictable.

The child’s interests include stable and sustainable maintenance, reduced conflict between parents, and preserving both parents’ economic capacity.

This also harms the child’s actual interests. The child’s interests are not limited to a one-time payment. They include stability, sustainability, reduced parental conflict, and maintaining both parents’ financial capacity. If the state’s claim pushes the obligated parent to their financial limits, it does not protect the child in the long term but increases instability. The paradox is that a system designed to protect the child may instead reduce the obligated parent’s ability to pay, increase litigation, and jeopardise ongoing maintenance payments.

Recourse must not become an end in itself. A rule-of-law state cannot operate on autopilot. Administrative law principles require proportionality and discretion.

The system of maintenance allowance during court proceedings has been in place since at least 2017. It is unlikely that the described situation is rare. The problem lies in the lack of a clear legal mechanism for cases where retroactive maintenance is awarded for the same period. There is no automatic set-off mechanism, and neither the court nor the SKA is obliged to resolve this issue before enforcing the state’s claim.

The current system assumes that the debtor must navigate the intersection of administrative and civil proceedings and, if necessary, initiate new disputes or draw the court’s attention to the maintenance allowance already paid. All risks and responsibilities are placed on the individual, which is not consistent with the principle of good administration.

If the maintenance allowance system is designed to protect the child, its application must not infringe the fundamental rights of a good-faith parent.

It is true that many maintenance debtors fail to fulfil their obligations in bad faith. However, a rule-of-law state cannot assume that every obligated parent acts in bad faith. A good-faith parent who complies with a court decision must not be placed in a situation where they are required to pay twice for the same period simply because state procedures do not align. The system must not undermine the child’s long-term financial security, escalate conflicts, or create legal uncertainty.

In a rule-of-law state, a system should not produce substantively unjust and disproportionate outcomes through formal application of the law. The issue is not whether the child should be protected – of course they should.

The real question is whether the state is willing to acknowledge that the regulation of maintenance allowance during court proceedings needs refinement to prevent double obligations – and whether it is willing to act. And even more fundamentally: is the state protecting the child, or its own recourse claim?

What could be changed?

The state has several possible solutions:

• Explicitly provide that if retroactive maintenance is awarded for the same period and paid, the state’s claim must be reduced accordingly.
• Create an automatic set-off mechanism between the SKA and court proceedings or establish a basis for claims against the parent who received the allowance.
• Grant the SKA clear discretion to waive claims in such situations.
• Require courts to take already paid maintenance allowance into account when awarding retroactive maintenance.

This article was published on 15 March 2026 in the newspaper Postimees.