Child Maintenance

Statutory Child Maintenance

The initially the statutory child maintenance scheme was regulated by the Child Support Agency (CSA), however, the responsibility was transferred to the Child Maintenance and Enforcement Commission (CMEC), following the introduction of the Child Maintenance and Other Payments Act 2008 (CMOP 2008). The CMEC was then abolished in 2012 and the responsibilities were transferred back to the DWP.

The Child Maintenance Service (CMS) administers the statutory child maintenance which is calculated under the gross income scheme.

There are three possible methods available to calculate the child support liability. These are:

  1. The old scheme – original calculation method
  2. The net income scheme – post March 2013 applications
  3. The gross income scheme – existing cases under the net income scheme were transferred between 30 June 2014 to 31 December 2018

Child Support Act 1991

The old scheme was introduced by the Child Support Act 1991. The scheme aimed to:

  1. Ensure parents fulfilled their moral and legal obligations to maintain their children
  2. Relive the burden ensued by the social security scheme for supporting children of separated parents
  3. Remedy the short falls in the methods of the Court for dealing with child support, particularly:
    • Inconsistencies in the payments ordered
    • Excessive levels of low awards being ordered
    • Orders that were difficult to vary or update
    • Child maintenance orders can be difficult to enforce and costly to order

Child Support Act 1995

The Child Support Act 1995 introduced a scheme of departure directions which allowed variations from the statutory child maintenance formula. There were three grounds set out by the Child Support Departure Direction and Consequential Amendments Regulations 1996 (SI 1996/29070), which are set out below:

Special expenses

These grounds are predominantly relevant to non-resident parents and if established, they would result in a departure from the formula assessment. These include:

  • Costs incurred in travel expenses for work
  • Costs of contact
  • Debts incurred by the non-resident parent or on behalf of the person with care or the child before he became a non-resident parent
  • Specific pre-1993 financial commitments
  • Costs incurred in supporting stepchildren

Property of capital transfers

Departure may be possible where the property has been transferred by the non-resident parent to the person with care or to the qualifying child. Further, it must not have been reflected in the formula assessment.

Additional cases

These grounds are predominantly relied on by the person in care however, they may be relied on by the non-resident parent to increase the level income taken into account in the formula assessment. the grounds:

  • Assets capable of producing income or increasing income
  • Diversion of income
  • Lifestyle not consistent with income
  • Unreasonably high levels of housing costs
  • Partners contributions towards housing costs
  • Unreasonably high levels of travel costs
  • Disregarding travel costs

Child Support, Pensions and Social Security Act 2000

This act removed the restriction against applying to the CSA where a child maintenance order was in place. Further, it introduced the net income scheme, which has been in effect since March 2003.

Child Maintenance and Other Payments Act 2008

The act contains provisions which intend to encourage, and support separated parents to agree their own child maintenance agreements on a voluntary basis. Additionally, it introduced the gross income scheme of calculating child maintenance based on a percentage of a non-resident parents’ gross income. Furthermore, it enhanced the enforcement powers of the Child Maintenance Service and removed the obligation on a person in care on benefits to apply for a child support calculation.

Power of the Child Maintenance Service to make a maintenance calculation

The Child Maintenance Service possesses the jurisdiction to make an assessment of child maintenance in the event all of the following are applicable:

  • There is a qualifying child
  • There is a person with care
  • There is a non-resident parent
  • The qualifying child, person with care and non-resident parent are habitually resident in the UK

In the event that the non-resident parent is not habitually resident in the UK, the Child Maintenance Service will have the power to make a maintenance calculation if the non-resident parent is:

  • Employee of the civil service
  • A member of the armed forces
  • Employed by a company that employs employees to work outside the UK but calculates earning payments in the UK
  • Employed by a prescribed body

Child Maintenance Service will not have jurisdiction where it would be contradictory to exercise the jurisdiction against the jurisdictional requirements of Regulation (EC) 4/2009.

Limitations on the Courts Powers to Make Child Maintenance Orders

A significant implication of the Child Maintenance Act 1991 was that it limited the Court’s powers to make orders for child maintenance. Before the statutory scheme was established, the Courts held the power to make orders for periodical payments for the benefit of a child. However, once the Child Services Act 1991 was implemented, it specified that in situations where the Child Maintenance Service would hold jurisdiction, the Court would have no power to make, vary or receive any maintenance orders in regards to a non-resident parent or a qualifying child.

The exception to this rule is that unless a maintenance calculation has been made, the court can vary a maintenance order already in force in respect of the non-resident parents and qualifying child, if the order was either after the 3 March 2003 or before the 3 March 2003 and an application for a maintenance calculation is prevented under section 4 of the Child Maintenance Act 1991.

These rules do not prevent a court from:

  • Making child maintenance orders by consent
  • Revoking child maintenance orders
  • Making child maintenance orders in the circumstance specifically provided for by section 8 of the Child Maintenance Act 1991
  • Making orders, other than maintenance orders, for the benefit of a child

Overview of the schemes

Old scheme

  • Administration – administered by the Child Support Agency who were acting on behalf of the Secretary of State for the Department of Work and Pensions.
  • Method of calculation – based on each child maintenance requirement and takes into account the income of both non-resident parents and person with care.
  • Shared care – there is a reduction from assessment for shared care in excess of 52 nights per year.
  • Departure or variations from the formula – post April 1996 the departure directions depend on underused assets, diversion of income and inconsistencies within the lifestyle.
  • Charges – there is no charge for the application or for the use or collection and enforcement services.

Net income scheme

  • Administration – from 2008 it was administered by Child Support Agency who were acting on behalf of the Child Maintenance and Enforcement Commission.
  • Method of calculation – calculated on a percentage formula which is based on the non-resident parents’ gross income and no account is take of the person in cares income.
  • Shared care – there is a reduction from assessment for shared care in excess of 52 nights per year.
  • Departure or variations from the formula – variations are based on assets, diversion of income, income not taken into account and inconsistencies within the lifestyle.
  • Charges – there is no charge for the application or for the use of collection and enforcement services.

Gross income scheme

  • Administration – from August 2012 it was administered by the Child Support Agency or Child Maintenance Service on behalf of the Department of Work and Pensions.
  • Method of calculation – calculated on a percentage formula which is based on the non-resident parents’ gross income and no account is take of the person in cares income.
  • Shared care – there is a reduction from assessment for shared care in excess of 52 nights per year and where the principle of shared care is agreed, there will be a presumption of 52 nights care. Furthermore, where the care is shares equally, there will be no calculation.
  • Departure or variations from the formula – variations are based on unearned income and diversion of income.
  • Charged – there are several charges including a £20 flat fee for application made from 30 June 2014, from 11 August 2013 the fees are payable by both parents for the use of collection services and from 30 June 2014, a non-resident parent is subject to fixed fees for enforcement services.