Child support or child maintenance is the financial support paid by a "separated” not necessarily divorced or divorcing parent and is paid to the parent with whom the child resides. It is not usually arranged as part of the divorce settlement as the Courts have limited power over child maintenance or support save as to incorporate in an order what may have been agreed. However the Courts will want to ensure that adequate arrangements have been made.
Clough & Willis Family Law Solicitors has two Resolution Accredited Experts in Family Law, Lee Marston and Marie Whittaker, who can offer legal advice and information on child support and maintenance. They may be contacted on firstname.lastname@example.org and email@example.com.
Child Maintenance Options Service
On 1 August 2012, both the Child Maintenance Enforcement Commission (CMEC) and the Child Support Agency (CSA) were abolished and the running of the child support scheme reverted to the Department for Work and Pensions. This was called the Child Maintenance Group but they were still to be known by everyone as the CSA.
We now have the Child Maintenance Service (CMS) who are still part of the DWP.
The Court still has the power to make orders in the following instances:-
Sometimes the child support element of an overall package of support to the parent with care can be incorporated in the Court order. These are known as global orders. This is useful where the total financial support required has been settled and it is merely a case of apportioning that between child support and maintenance for the parent with care in their own name (spousal maintenance). If the CSA became involved and that element of child support in the Court order is extinguished, the wording of the order ensures that the amount of support awarded by the Child Maintenance Service is slightly less then the spousal element makes up the difference. Similarly, if the Child Support Agency awarded more then the element of spousal maintenance would reduce to keep the same figure.
On 3 March 2003, a simpler formula was introduced for calculation of child maintenance as follows (the Old Scheme):-
One seventh for 52-103 nights per year; two sevenths for 104-155 nights per year; three sevenths for 156-174 nights per year and 50% for 175 nights or over a year (known as shared care and can cause bitter disputes).
The New Scheme was introduced on 10 December 2012 and is applicable to all new case. This is known as the Child Maintenance Options Service.
Its purposes are fourfold:-
(a) To ensure parents take financial responsibility.
(b) To provide support services.
(c) To encourage voluntary maintenance arrangements.
(d) To provide a residual statutory service.
The gross income of the non resident parent (NRP) is used.
Deduct the whole of any pension contributions. (This has to be confirmed by the payer, not by information provided by HMRC).
The percentages are as follows:-
On the first £800 per week - 12% for one child, 16% for two children and 19% for three or more children.
On anything over £800 per week, an additional percentage - 9% for one child, 12% for two children and 15% for three or more children.
The maintenance will be reduced if the non resident parent has other relevant children living in his household, namely 11% for one child, 14 % for two children and 16% for three or more children.
There is a flat rate of currently £7 per week and default maintenance decisions of £39 for one child, £51 for two children and £64 per week for three or more children necessary pending assessment or lack of co-operation.
The previous shared care deduction rates still apply but if there is conflict it would be assumed, pending resolution, to be one night per week.
We strongly recommend you look at the child maintenance calculator and following the link below.
http://www.cmoptions.org/ or telephone 0800 988 0988.
Please note the Child Maintenance Service will get their information from HMRC and will only be based on details they have for the last available tax year, including any bonuses or commissions.
How do I Challenge the Calculation?
Your query must be raised within thirty days of the assessment and could be amended if:
There is a 25% tolerance level for changes and a legal obligation on the payer to report any upward change of their presently assessed income if it is more than 25%.
The idea is to take cases away from what was the CSA, now the Child Maintenance Service for people to make Family Based Arrangements ("FBA”).
Parents are expected to ring the Child Maintenance Options Service as the first port of call and they will encourage everyone to engage in an "FBA”. They have an example on their website.
Be advised this is not a legal document and therefore seems difficult to enforce. There is the landmark case of Darke verses Strout showing the difficulties of enforcement and which this firm pursued on behalf of the mother, being ultimately successful having first had to go to the Court of Appeal.
You will have heard of the plans to start charging parents to use the CMS. These will be brought in 2014 as follows:-
Possible Applications for Variations
These were previously known as Departures. For those under the Old Scheme, the grounds are:-
These rules are all subject to it being just and equitable (fair) to apply the variation.
The New Scheme
This abolishes any claim for a variation where the NRP has assets over £65,000 or lifestyle inconsistent with his stated income.
The Government view child maintenance should be based on actual earned income does not take account of other circumstances where, for example, the father enjoys a fabulous lifestyle with the generous support of his parents. It is still subject to the just and equitable hurdle and there is a tightening of the qualification process from the previous grounds.
Recovery from the estate of the NRP is possible and orders can be made preventing disposal of assets.
Charges for Enforcement
Liability Order - £300.
Lump Sum Deduction Order - £200.
Regular Deduction Order - £50.
Deduction from Earnings Order - £50
These are subject to Child Support Fees Regulations 2014 and will no doubt change.
Any party can appeal a decision to the Child Support Appeal Tribunal. They should be made in writing and formal notice provided to the Child Maintenance Service within one month of the notice of the decision being sent out.
The matter would be reviewed again by a decision maker. If the decision maker does not revise it, the matter would be listed before the First Tier Tribunal who can give a wide range of directions.
A party can request the Tribunal to provide a written statement of reasons within one month of the decision being given or receiving a decision notice.
If dissatisfied, it is possible to appear to the Upper Tribunal if there is an error of law. It is not an error of law if the First Tier Tribunal simply does not believe the evidence of one of the parties provided the decision is one which a reasonable Tribunal could have arrived at and is properly explained as based on all the evidence.
The Upper Tribunal can make its own decision, refer it back to them or dismiss it.