Financial Provision for Children Part 1: Statutory Child Maintenance

Whatever their marital status, parents have a responsibility to provide for their children financially. At times, steps need to be taken to ensure that a parent meets this obligation; particularly where one parent does not reside with their child and is not managing their day-to-day care. In most cases, recourse to the Child Maintenance Service (CMS) will be sufficient to ensure the appropriate amount of maintenance is paid.

Child Support under the Child Maintenance Service
Financial provision for children was once calculated, paid and enforced entirely through the courts, or through voluntary agreements between parents. Since 1993, however, a succession of government agencies has been principally responsible for such matters. The CMS is the present iteration1.
Responsibility for the administration of child maintenance falls upon the CMS when both parents are habitually resident in the United Kingdom. They also handle cases in which the non-resident parent habitually resides in another country, so long as that parent is a member of the Diplomatic/Overseas Civil Service, a member of the British armed forces, or is an employee of a UK-registered company. In those cases which fall wholly within the remit of the CMS, the jurisdiction of the courts is suspended.
Who can apply?
Only the following people may make an application to the CMS in respect of a child:
a) The parent whom the child lives with,
b) The non-resident parent of the child,
c) The grandparent, or other guardian of the child,
d) The child themselves, (so long as they are resident in Scotland and have exceeded the age of twelve).
The maximum age for a qualifying child is twenty, if they remain in education.

How are the maintenance calculations made?
While there have been three child maintenance schemes, each handling calculations in a different manner, only the 2012 Scheme will be considered in this article.2
The sum of money which the non-resident parent is expected to pay is measured, firstly, as a percentage of their gross income. The CMS obtain the relevant information from HMRC.
The CMS apply one of four Rate Assessments, depending upon the non-resident parent’s circumstances. The Basic Rate is the most exacting, followed by the Reduced Rate (for non-resident parents whose gross weekly income is between £100-£200), the Flat Rate of £7 (for non-resident parents in receipt of benefits or pension credit) and the Nil Rate.

Basic Rate Assessments are calculated by way of the following mechanism, though other variables can apply:

1. A percentage of the non-resident’s income, up to the gross value of £800 per week, is deemed to be payable in child support. These percentages are:
a) 12%, where there is one child.
b) 16%, where there are two children.
c) 19%, where there are three or more children.
2. If the non-resident parent’s gross earnings exceed £800 per week, these additional earnings are described as “excess”. A percentage of the excess income will also be deemed to be payable. These percentages are:
a) 9% of the excess, where there is one child.
b) 12% of the excess, where there are two children.
c) 19% of the excess, where there are three or more children.
3. Lastly, where there are other children who reside with the non-resident parent, then the amount payable in child maintenance is reduced by the following amount:
a) 11% reduction, where there is one child living with the non-resident parent.
b) 14% reduction, where there are two children living with the non-resident parent.
c) 16% reduction, where there are three or more children living with the non-resident parent.

Under certain circumstances, child maintenance is simply not payable, or is assessed by the CMS to be nil. For instance, no child maintenance is payable if care of the child is shared equally between both parents. Likewise, if the non-resident parent is still a child aged between 16-17 and they are in receipt of benefits, their assessment will be calculated at a nil rate. The same is true of non-resident parents who are prisoners, or those who are financially vulnerable residents of care homes.
The CMS review their calculation annually; though a parent with care can seek an upwards variation in child maintenance at any time, so long as they believe that the non-resident parent is in receipt of additional income of at least £2500.
In the event that the non-resident parent’s gross weekly income exceeds £3000, it should be possible to obtain a ‘top-up’ of periodical maintenance payments from the court, over and above the maintenance provided through CMS calculations.
Note that under the present scheme the CMS are concerned with the non-resident parent’s income, not their capital. It is quite possible that a capital-rich parent will be expected to pay significantly less child support than would have been the case previously, if their income is low.

Can a non-resident parent ask for maintenance payments to be changed?
So long as the non-resident parent earns a gross income of at least £7 per week and is not in receipt of benefits, it is open for them to seek a reduction in the amount of maintenance owed, but only for the following reasons:

a) If the non-resident parent enjoys contact with their child and incurs expenses of at least £10 a week as a result, then this will be taken into account by the CMS. (Such expenses may include the cost of fuel or transport, for instance)
b) The non-resident parent bears costs connected with supporting a child with a long-term illness, or a disability.
c) The non-resident parent is repaying certain debts from a previous relationship, calling for payments of at least £10 per week, so long as these debts were incurred at the time of the relationship. (For instance, if the non-resident parent is making repayments towards a loan on the purchase of a car, which the resident parent has retained.)
d) The non-resident parent is making mortgage repayments, of at least £10 per week, on the home in which the resident parent and the child live; so long as this was the same home which the parents once shared and the resident parent has no interest in the property.

e) The non-resident parent is paying boarding school fees of at least £10 per week.
Can a non-resident parents with a “Special Occupation” avoid making payments?
Under the previous scheme, income derived from certain “Special Occupations” was exempt from the calculation of what a non-resident parent owed in child maintenance. The result was that, if a non-resident parent’s only source of income came from his work as an auxiliary coastguard, reserve or territorial serviceman, local councillor, part-time firefighter or part-time lifeboat crew, their maintenance payments would be nil.
Under the present 2012 Scheme, no such exemption applies and income from the above professions will be considered by the CMS.

Is the service free?
As of 30th June 2014, fees have become payable for those who use the CMS’s services. If the person making the application is under nineteen years of age, or has been the victim of domestic abuse, then the fees may be waived. Otherwise, a fee will need to be paid at each of the following stages:

a) Upon applying to the CMS
b) Upon using the CMS’s maintenance collection service (should you choose not to accept maintenance payments directly)
c) Upon taking enforcement action with the CMS.

What can be done if the non-resident parent fails to pay?
In the event that the non-resident parent misses their maintenance payments, you should alert the CMS so that they can take further action. A variety of enforcement actions are open to the organization, including arranging for the money to be withdrawn from the non-resident parent’s bank accounts, or having the funds deducted from their earnings or benefits. The price of the enforcement action varies depending on which method is employed.
In the case of Kehoe v Secretary of State for Work and Pensions [2005] UKHL 48, it was considered whether a mother possessed a civil right to enforce CSA calculated maintenance in her own right, or on behalf of her child, without recourse to the CSA’s enforcement mechanisms. The House of Lords indicated that this was not a possibility.

What if the non-resident parent is diverting their income to someone else?
In the event that a non-resident parent is found to have been managing their income in such a way that it has not been included in the figures which the CMS use to calculate child maintenance, then it may be possible to secure an upwards variation of the sum owed. This diversion of funds can encompass the making of pensions payments.
In such an event, it is the responsibility of the parent with care to request that a variation be made, by contacting the CMS.

Written by George Hallam-Attree paralegal at London Family Solicitor.

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