Debt Advice Handbook Scotland - 1st editionChapter 4: Household debt1. Child support payments Special features
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Special features
The CMS refers to non-resident parents as ‘paying parents’ and the parent with care as ‘receiving parents’. The CMS calculates child support payments based on a percentage of the paying parent’s gross weekly income. The percentage depends on the number of children the paying parent is paying for. This includes each qualifying child plus any other child that the parent has a family-based arrangement for. The gross income figure used is reduced to account for any ‘relevant other children’ – ie, a child for whom the paying parent or their partner gets child benefit.
The CMS charges the paying parent a 20 per cent fee in addition to each assessed amount of child support payment and the receiving parent pays 4 per cent of the assessed amount. There are no collection fees if the parties agree arrangements for the paying parent to make payments directly to the receiving parent (Direct Pay). To encourage Direct Pay, the CMS can advise about setting up a non-geographical bank account which has a central sort code and so does not give any information about the area in which the parent lives.
There are no set rules on how quickly child support arrears should be paid, although the CMS 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. A client experiencing hardship should contact the CMS with full details of their circumstances, including how the collection rate impacts their ability to keep contact with their children. There is no right of appeal against a discretionary decision. However, a complaint can be made if the parent feels that they have been treated unfairly or there have been unacceptable delays or other maladministration. It can be helpful to get the client’s MP involved. Complaints can be escalated to the Independent Case Examiner or the Parliamentary and Health Service Ombudsman.
If child support is being paid through the CMS’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 CMS if a payment is missed. Otherwise, the CMS will not be aware of this. If the CMS decides to take enforcement action, it will also start managing ongoing payments through its collection service (and charge collection fees).
To avoid enforcement action, the paying parent should contact the CMS as soon as a payment is missed to explain why and make arrangements to pay.
Before escalating to tougher enforcement action, the CMS has other options including collecting earnings direct from parents’ employers or different bank accounts. The first step in enforcement is usually to make a deduction from earnings order (see here).1s31 CSA 1991
The CMS has the power to accept lump sum payments in full and final settlement of the arrears.2s32 CMOPA 2008 If an offer in full and final settlement is accepted, the paying parent has no further legal obligation to pay the rest of the arrears. The receiving parent has to agree. However, the CMS will investigate the offer before putting it to the receiving parent. If it thinks the paying parent can pay and there is a reasonable chance of getting back all the arrears, the CMS will insist on them paying the full amount.
When fully in force, the Child Support (Enforcement) Act 2023 will see families paid faster as it gives the CMS the power to issue its own a liability orders to reclaim unpaid child maintenance.3s2 Child Support (Enforcement) Act 2023
 
1     s31 CSA 1991 »
2     s32 CMOPA 2008 »
3     s2 Child Support (Enforcement) Act 2023 »
Appeal a decision about payment amounts
An appeal to an independent tribunal can be made if anything relating to the child support calculation is disputed. Get specialist advice if the client wants to appeal the assessment. Before you can appeal, you must contact the CMS to ask for the decision to be looked at again. This is called mandatory reconsideration.1gov.uk/child-maintenance-service/complaints-and-appeals
If you are unhappy with the outcome of the mandatory reconsideration, you can appeal to the First-tier Tribunal (Social Security and Child Support) within one month of getting the decision. If you submit your appeal after a month, you must explain why you did not do it earlier.
 
1     gov.uk/child-maintenance-service/complaints-and-appeals  »
Enforcement
Other enforcement action (but not recovery of arrears from the estate of a deceased paying parent or deductions from benefits) requires a liability order from the sheriff court. Your client will then have 21 days to object to the liability order being made. The court must accept that the payments specified are due from the paying parent and have not been made, but it cannot question the child support calculation itself.
Liability orders made in any other part of the UK can be enforced in Scotland.
If a liability order is made in Scotland, it can be enforced by:1s38 CSA 1991
    •charge for payment; or
    •attachment and exceptional attachment, which may involve sheriff officers going to your home to value your belongings that could then be sold to pay off your arrears; or
    •inhibition order.
If these methods are not successful, the CMS can take further enforcement action. If the court deems that the client has the means to pay but has ‘wilfully refused or culpably neglected’ to do so, the CMS can apply to court for an order to:
    •send your client to prison for up to six weeks;2s40A CSA 1991 or
    •disqualify your client from holding a driving license for two years or (but not both) disqualify your client from holding a passport for two years;3s40B CSA 1991 or
    •impose a curfew order for up to six months and order for the client to be searched and any money found on them confiscated.4s28 CMOPA 2008
Your client may also be subject to penalty payments of up to 25 per cent and this will not affect their liability to pay ongoing payment or to arrears.
The CMS can also apply to the 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.
The CMS has said it is only likely to use these powers in exceptional circumstances and only where arrears of over £1,000 remain outstanding. The CMS cannot seek both disqualification from holding a passport/driving licence and imprisonment.
The CMS 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 their 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.
Appeals to the sheriff court are possible.
 
1     s38 CSA 1991 »
2     s40A CSA 1991 »
3     s40B CSA 1991 »
4     s28 CMOPA 2008 »
Debt Arrangement Scheme
Child maintenance arrears can be included in an application for a Debt Payment Programme under the Debt Arrangement Scheme. However, ongoing liability payment cannot be included.1Reg 2 DAS(S) Regs
 
1     Reg 2 DAS(S) Regs »
Insolvency
Any obligation to pay child maintenance will not be discharged in insolvency proceedings.