Clough & Willis Solicitors, Commercial and private legal services UK

Child Support Solicitors

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 lee.marston@clough-willis.co.uk and marie.whittaker@clough-willis.co.uk.

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:-

  • Step-parent orders.
  • Foreign residence, ie parent or child living abroad.
  • University children or children over age.
  • If parents are still in the same household.
  • Where the parties agree.
  • Where there is a maximum maintenance calculation and the parent with care is seeking to top it up.
  • Where a child suffers from a disability and an order is necessary to meet some or all of any expenses related to the child's disability.
  • For school fees.

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):-

  1. To calculate the net income of the non resident parent by deducting income tax,  national insurance and all pension contributions.
  2. To make a deduction for any new children living with the non resident parent in his household, namely, 11% for one child, 14% for two children and 16% for three or more children.
  3. The same percentages will then apply to his remaining income.
  4. There would be deductions from this figure for each average overnight contact as follows:-

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 Calculation

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:

  • Official error, or
  • The paternity of a child has been proved to be negative, or
  • The Child Maintenance Service became aware that the HMRC information was in accurate.

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.

Charges

You will have heard of the plans to start charging parents to use the CMS. These will be brought in 2014 as follows:-

  • £20 application fee.
  • The NRP to pay an additional 20% collection charge. The PWC (parent with care) to have 4% deducted from the support for collection.
  • Charges for enforcement.

Possible Applications for Variations

These were previously known as Departures. For those under the Old Scheme, the grounds are:-

  • Special expenses - the cost of maintaining contact over £15 per week - the costs of long term illness/disability of a child - the costs of debts of the relationship if incurred pre separation can qualify - boarding school fees (maintenance element only) - the costs of paying the mortgage of the parent with care/child's home if the payer has no interest in it.
  • Property or capital transfers made before 5 April 1993.
  • If the non resident parent has assets over £65,000 excluding his home a notional interest of 8% will be added to his income.
  • Diverted income or unreasonably reduced income.
  • The NRP has a lifestyle inconsistent with the stated income. However, an added variation can apply where the NRP has unearned income (by example, rental or dividends) equal to or exceeding £2,500 per annum.

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.

Enforcement

  • Deduction of Earnings Order.
  • Liability Order (Court Order). The Court has the power to question the maintenance calculation which is a gateway to other enforcement actions so can lead to the following:-
    (a) Distress - seizure and sale of goods.
    (b) Charging Order (through the Court against the payer's property).
    (c) Third Party Debt Order (freezing funds held by the payer having them released to the Child Maintenance Service).
    (d) Committal (through a Magistrates Court and there will need to be demonstrated wilful refusal or culpable neglect and frequently, any Committal Order will be suspended).
    (e) Disqualification from driving - rarely used up to a maximum of two years.

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.

Appeals

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.



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