When parents separate, there can be a worry as to how any children’s expenses (including school fees) will be paid in the future. The purpose of this short blog is to provide an introduction to child maintenance and in brief explain the role the court might play when children’s expenses need to be met.

Child Maintenance Service

The starting point for any separating parents is the Child Maintenance Service (“CMS”) who implement a statutory scheme in relation to child maintenance. The vast majority of cases will be determined by the CMS and not the court.

By way of background, in April 1993 the Child Support Agency was established by the Child Support Act 1991. With effect from 1 November 2008, child maintenance under the statutory scheme became the responsibility of an independent commission, the Child Maintenance and Enforcement Commission. The Commission was abolished in July 2012 and the statutory scheme is now administered via the Department for Work and Pensions which has established the Child Maintenance Service for that very purpose.

The court does not usually have the power to make orders for child maintenance where the CMS has jurisdiction i.e. where a child qualifies under the scheme. In short, to be a qualifying child that child must:

1.   Live with one or neither of their parents.
2.   Be under the age of 16 or be under the age of 20 and be receiving approved full time education.
3.   Be living in the jurisdiction or have a parent living in the jurisdiction.

If there is a qualifying child, an application for a maintenance calculation can be made to the CMS. At the time of writing, an application fee of £20 is payable unless an exemption applies. The application can be made by either parent, defined as the parent with the day to day care of the child (“PWC”) or the non-resident parent (“NRP”).

Although child maintenance can be assessed in different ways, the standard formula for assessing child maintenance is taking a percentage of the NRP’s gross weekly income for each qualifying child. Downward adjustments are then made if the NRP has children living with them or if the qualifying child overnights with them a minimum of 52 nights per year.

The CMS ceases to have jurisdiction if an NRP’s gross weekly income is £3,000 or more i.e. £156,000 gross per annum. In practice, this means that if the CMS has made a maximum child maintenance assessment, the court has the power to make a top up order for child maintenance so the NRP pays a higher amount.

The CMS will also not make a child maintenance assessment where the parents have equal shared care, which means that overnights are split equally throughout the year. In other words, if a child stays with one parent 3 nights in week 1 and the other parent for 4 nights in week 2 and this pattern is alternated throughout the year, equal shared care will exist and no child maintenance will be payable through the CMS.

The court and child maintenance

Whilst the CMS deals with most child maintenance matters, the court does retain the jurisdiction to make or vary orders for child maintenance in some circumstances. The most common of these are:

1.   The parties have agreed on a child maintenance figure and want that agreement made into an order.
2.   The CMS has made a maximum child maintenance calculation i.e. the NRP’s gross annual income exceeds £156,000.
3.   To meet educational or training expenses e.g. school fees or training fees for a trade, profession or vocation.
4.   The child has expenses attributable to a disability—in such circumstances there is no age limit.
5.   The child is resident abroad but the NRP is resident in England or Wales.
6.   Where the parents have an equal shared care arrangement.

Claims for child maintenance can be made under different statutory provisions. For divorcing parents, the application would be made pursuant to the Matrimonial Causes Act 1973. For parents who did not marry, the application would be made pursuant to the Children Act 1989. This latter piece of legislation can play a crucial role not only in relation to child maintenance but also capital provision to, for example, meet housing needs.

Key points

For parents, the intersection between the powers of the child maintenance service and the powers of the court can be difficult to follow. Most cases will fall to the CMS to determine. A useful starting point for any parent should be using the child maintenance calculator to establish what the NRP ought to be paying the PWC. However, if the NRP has a gross annual income in excess of £156,000, or there is the issue of how school or training fees will be paid, or if parents were married and capital provision needs to be made as well as child maintenance, specialist advice ought to be taken to ensure that proper provision is being made.

Should you wish to discuss either child maintenance, or you need a child maintenance lawyer in London, please contact us at info@kmjsolicitors.com or 0203 709 6895 to arrange to speak to one of our solicitors.

Posted on 15.02.2023