Child maintenance and your options

Insights - 23/03/2017

The amount of uncollected child maintenance in Britain now exceeds £3.8 billion, the BBC  has claimed. The figure, highlighted on The Victoria Derbyshire show, is based on collated government statistics and dates back 23 years.

An estimated 1.2 million parents with care of their children are currently owed child support payments by their former partners.

According to the programme, the majority of the backlog was accumulated during the notorious Child Support Agency (CSA) era.  The government began a phased closure of the CSA in 2012 but no less than £93 million has reportedly already built up under the successor organization  The Child Maintenance service.

Janet Albeson of single parent charity Gingerbread described the figure as a huge, startling number…. People can’t quite believe it, and do a double take. And its money that has built up over a long time.  She called on the government to pay compensation to parents with care of their children who have lost out.   They shouldn’t just be able to walk away and say its history when its due to their errors and their poor practice that money hasn’t been collected. That’s wrong and the government should pay for that”.

A Department for Work and Pensions spokesman stated that the government was actively pursuing child maintenance debts, adding that under the current system 90 per cent of non – resident parents “are paying towards the money owed”.

The Parliamentary Work and Pensions Committee is expected to publish a critical assessment of the Child Maintenance Service (“CMS”) next week.

How else can maintenance be administered?

Parents have a legal responsibility to provide financially for their children even if they no longer live with them.
There are various types of child maintenance arrangements available to parents.

  1. You can agree child maintenance with the other parent by negotiating with them directly or through a solicitor. This can be recorded in a private agreement.  The benefits of an agreement are that neither party will have to pay CMS fees and the parents can change the maintenance rates by agreement as their circumstances change.  Arrangements for child maintenance made by way of agreement and without a court order are not legally enforceable.  This means that if the non-resident parent decides to  reduce or stop their maintenance payments you cannot force them to stick to the agreement.  If the non-resident parent stops paying or reduces maintenance you should contact the CMS.  The non–resident parent will only be required to make payments from the date you apply to the CMS.
  2. If you are unable to agree arrangements for child maintenance with the other parent then you can make an application for child maintenance to the CMS.
  3. If you are involved in Court proceedings to divide assets following a divorce or dissolution of a civil partnership and can agree child maintenance you can apply to court to have this agreement turned into a financial order.  If the non- resident parent fails to pay the maintenance  agreed in the financial order, then the Court has powers to enforce the order.  12 months after the financial order has been in place either party can “opt out” of the agreement in the financial order and choose to go to the CMS instead.
    1. There are also certain limited circumstances when a resident parent can seek orders from the Court under Schedule 1 of the Children Act 1989, in addition to seeking maintenance through the CMS, or if a CMS assessment is not available i.e.•         the non-resident parent lives abroad
      •         the income of the non-resident parent is greater than the statutory schemes upper limit (currently £3,000 per week before income tax and national insurance)
      •         the application concerns costs for a child’s education or to support a child with a disability
      •         the resident parent is seeking a sum of money, for example, to provide a home for the child
  4. Under the children Act 1989 you can apply to the court for maintenance payments, a lump sum or the transfer of property into your sole name.  When deciding an application the court will consider all the circumstances in the case including the welfare of the child.
  5. Any financial provision that the court orders will last until your child reaches 18 unless she or he is, or would be, in full time education or training or there are special reasons why the provision should continue (e.g. because your child has a disability and requires further support)
Child maintenance for someone living abroad

An application can be made to Court under Schedule 1 of the Children Act 1989 to secure child maintenance from a non-resident parent who is living abroad.

Child Maintenance  Service  only deals with applications for child maintenance where both parents are habitually resident in the UK with certain exceptions. Eg, one of the parents works abroad for the Government (e.g. a diplomat), the Armed Forces, a UK based Company or on secondment for a certain organization (e.g. local authority).

You or the non-resident parent are habitually resident in the UK if you are allowed to live in the UK if you have made it your home and intend to live here for the time being.  It is possible for a person to be habitually resident in more than one country.

The UK has arrangements  with over 100 countries and overseas territories that enable someone from one jurisdiction to claim maintenance from someone in another.  The Reciprocal Enforcement of Maintenance Orders (REMO) is the process by which maintenance orders made in the UK  courts can be registered and enforced by courts or other authorities  in other countries. We will have to wait and see if this will be affected by Brexit!

If you would like further advice on the on the issues raised in this blog please contact Family Senior Associate Solicitor, Selena Ludick in our Woking office on 01483 215015 or by email [email protected].

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.