Special features
Child support payments are worked out by the Child Maintenance Service and are based on a percentage of the paying parent’s gross weekly income. The percentage depends on the number of qualifying children (including any ‘relevant non-resident children’ – ie, a child for whom the parent is paying maintenance under another maintenance arrangement). The gross income figure used is reduced to take account of any ‘relevant other children’ – ie, a child for whom the paying parent or her/his partner get child benefit.
An appeal to an independent First-tier Tribunal can be made if anything relating to the child support calculation is disputed. Specialist advice should be obtained.
The Child Maintenance Service charges fees for:
•collecting payments and passing them on to the person looking after the child (the receiving parent), for which the paying parent pays 20 per cent in addition to each child support payment and 4 per cent is deducted from the payment due to the receiving parent. There are no collection fees if the parties agree arrangements for the paying parent to make payments directly to the receiving parent;
•taking enforcement action, for which fixed charges of between £50 and £300 are charged to the paying parent.
The view of the Child Maintenance Service is that enforcement of child support arrears is a priority if the paying parent is liable to pay ongoing maintenance for her/his children. Enforcement in arrears-only cases in which there is no on-going maintenance being paid is likely to be a lower priority. There are no set rules on how quickly arrears of child support should be paid, although the Child Maintenance Service aims to clear arrears within a maximum of two years, at a rate of up to 40 per cent of the paying parent’s income. However, enforcement officers have the discretion to extend this period in appropriate cases. All decisions relating to the collection and enforcement of child support are discretionary and the welfare of any child affected must be taken into account. This includes if the paying parent has a child in a new relationship. There is no right of appeal by way of revision and then appeal to the First-tier Tribunal against a discretionary decision, but there is a right of appeal to the courts in some cases; for example, to the family court in England and Wales against a CMS decision to impose an order to deduct funds (regular or lump-sum) from a bank account. If necessary, a complaint can be made which might be escalated to the Independent Case Examiner or even the Parliamentary and Health Service Ombudsman.
If child support is being paid through the Child Maintenance Service’s collection service, it can consider taking enforcement action as soon as a payment is missed. If child support is being paid directly to the receiving parent by the paying parent, the receiving parent should notify the Child Maintenance Service if a payment is missed. Otherwise, the Child Maintenance Service will not be aware of this. If the Child Maintenance Service then decides to take enforcement action, it will also start managing ongoing payments through its collection service (and collection fees will be charged).
The paying parent should contact the Child Maintenance Service as soon as a payment is missed to explain why and to make arrangements to pay, if s/he wishes to avoid enforcement action. The first step in enforcement is usually to make either a deduction from earnings order or, if this is not appropriate (eg, if the paying parent is not employed or is self-employed), an order to take money from a bank account. A court order is not required.
Other enforcement action (but not recovery of arrears from the estate of a deceased paying parent) requires a liability order from the magistrates’ court. The court must accept that the payments specified are due from the paying parent and have not been made, but cannot question the child support calculation itself.
Note: from 12 July 2006, the six-year limitation period (see here) on the Child Maintenance Service applying for a liability order was abolished. If a liability order is made, it can be enforced by taking control of goods (see Chapter 14) or the county court can make a charging order (see here) or third-party debt order (see here). The Child Maintenance Service can also apply to the High Court for an order preventing the disposal of assets if the paying parent has disposed of, or is about to dispose of, assets with the intention of avoiding payment of child support. If all other methods of recovering arrears have failed, the Child Maintenance Service can apply to the court to commit a person to prison for a maximum of six weeks (an option of last resort) or disqualify her/him from driving for a maximum of two years, but not both. In order to do so, the court must decide that the parent has the means to pay, but has ‘wilfully refused or culpably neglected’ to do so (see here). The Child Maintenance Service can also apply to the court to disqualify a person from holding or obtaining a passport or other UK travel authorisation for up to two years. The Child Maintenance Service has said it is only likely to use this power in exceptional circumstances and only where arrears of over £1,000 remain outstanding. The Child Maintenance Service cannot seek both disqualification from holding a passport and imprisonment.
The Child Maintenance Service can write off arrears if it considers that it would be unfair or inappropriate to enforce the liability and:
•the receiving parent has requested that it cease taking action on the arrears; or
•the receiving parent has died; or
•the paying parent died before 25 January 2010 and there is no further action that can be taken to recover the arrears from her/his estate; or
•the arrears accrued in respect of an ‘interim maintenance assessment’ made between 5 April 1993 and 18 April 1995; or
•it has advised the paying parent that the arrears have been permanently suspended and that no further action will be taken to recover them.
If the arrears are more than £500 (or £1,000 for cases with an effective date before 1 November 2008), the receiving parent is sent a notice of the intention to write off the arrears and will be given 60 days to contact the Child Maintenance Service if s/he believes that the arrears should not be written-off. The Child Maintenance Service may still decide to write off the arrears if it believes that there is no reasonable prospect of the arrears being cleared.
If the receiving parent with care does not respond within 60 days, the arrears are automatically written off. Where the arrears are less than £500 (£1,000 for pre-1 November 2008 cases), the arrears can be written off without asking the receiving parent, although s/he will still be notified. Arrears below £65 are written off and no notice sent.
The Child Maintenance Service can also consider writing off arrears that remain outstanding from the previous child support schemes run by the Child Support Agency if it considers that it will not be cost-effective to pursue the arrears.
For more information about the child support scheme, including arrears and enforcement, see CPAG’s Child Support Handbook (see Appendix 2).