What is Child Maintenance? How is it calculated and enforced?

Both parents are legally responsible for the financial costs of bringing up a child.  When the parents of a child are in a relationship with one another and live together in the same household, this is rarely a matter of dispute.  However, when a relationship breaks down and parents separate, decisions have to be made about the future care arrangements for the child, and this can bring issues such as money into sharp focus. In this article, we delve deep into what Child Maintenance is as well as other factors affecting it.

What is Child Maintenance?

Child maintenance is the legal term for money that is paid by the parent who doesn’t live with the child to the parent who does live with the child.  We shall refer to the former as “the non-resident parent” and the latter as “the parent with care” in this article (these terms are used by the Child Maintenance Service).

Child maintenance is intended to cover the cost of everyday living expenses such as food, clothing, and accommodation.  It is paid until a child turns 16 years old.  In some cases, it is paid until a child turns 20 years old, provided he or she is in approved education or training.  It is acceptable for payment of child maintenance to cease before the child reaches the maximum age limit in certain narrowly defined circumstances.  For example, if the parent with care stops being the child’s main carer or the non-resident parent goes to prison.

How do parents sort out the arrangements for payment of Child Maintenance?

Separated parents can come to an agreement on the rate and frequency of child maintenance payments between themselves.  This is often referred to as a private family-based agreement.  It works best when there is a high level of trust between the parties and each is committed to upholding his or her side of the bargain.  This is because a private family-based agreement is not legally enforceable.

Sometimes separated parents are unable to communicate with one another.  They may feel hurt or anxious as a result of the breakdown of the relationship and find it difficult to keep discussions on a constructive footing.  They may benefit from instructing solicitors to help them make decisions about important matters that have arisen as a result of their separation.  Once consensus has been reached between the parties, the terms of the settlement will be recorded in a formal legal contract called a Minute of Agreement.  It is not uncommon for a Minute of Agreement to contain a clause that sets out the arrangements for the payment of child maintenance.  Such a clause will be legally binding for a period of 12 months.  Once this 12-month period has lapsed, it will be up to the parties to decide how the payment of child maintenance is going to be managed.

If separated parents are unable to agree on the amount of child maintenance to be paid between themselves or through solicitor-led negotiation, then either party can contact the Child Maintenance Service for an assessment to be carried out.

How does the Child Maintenance Service calculate the amount that is payable?

The Child Maintenance Service will collect information from HMRC to determine the annual gross income of the non-resident parent.  The Child Maintenance Service will then deduct relevant outgoings, such as pension contributions, from this figure.  The Child Maintenance Service will then convert this figure into a weekly figure.  The Child Maintenance Service will then apply a formula to this figure to help them calculate the weekly amount of child maintenance payable.  This figure may be further reduced if the non-resident parent is providing financial support to other children.  This figure may be reduced again depending on the number of times per week the non-resident parent exercises overnight contact with the child who is the subject of the maintenance assessment.  Once all of these factors have been taken into account, the Child Maintenance Service will arrive at a weekly child maintenance amount.

Shared Care

It is not uncommon for a non-resident parent to continue to play an important role in a child’s life by providing regular overnight care.  This arrangement can have an impact on the level of child maintenance that the non-resident parent is required to pay.  If the non-resident parent provides overnight care for a child for at least 52 nights per year, then this will constitute “shared care,” and the Child Maintenance Service will apply a deduction to the level of child maintenance that the non-resident parent is required to pay.  There are four “shared care bands,” which can be applied depending upon the level of involvement of the non-resident parent in providing overnight care for the child.  These are as follows:

1. If the non-resident parent provides overnight care between 52 and 103 nights per year, then their child maintenance liability will be reduced by one-seventh.
2. If the non-resident parent provides overnight care between 104 and 155 nights per year, then their child maintenance liability will be reduced by two-sevenths.
3. If the non-resident parent provides overnight care between 156 and 174 nights per year, then their child maintenance liability will be reduced by three-sevenths.
4. If the non-resident parent provides overnight care for 175 nights or more, then their child maintenance liability will be reduced by one-half.

If the non-resident parent reports that they have shared care of the child for at least 52 nights per year, then the Child Maintenance Service must contact the receiving parent for confirmation of the position.  If the parent with care agrees with the number of nights of shared care put forward by the non-resident parent, then the Child Maintenance Service will apply the appropriate deduction and no further enquiry will be needed.  If the parent with care disagrees with the number of nights of shared care put forward by the non-resident parent, then Child Maintenance could request documentary evidence from the parties, such as a Court Order or Minute of Agreement to help guide their decision-making.

Day-to-day Care

Sometimes, both parents continue to play a significant role in providing overnight care for a child post-separation.  In such cases, it can be difficult to distinguish the non-resident parent from the parent with care.  Generally speaking, the Child Maintenance Service will operate on the presumption that the parent who receives Child Benefit will be the one with primary responsibility for the child and therefore the parent with care.  If this presumption is challenged, then the Child Maintenance Service will assess whether one parent provides “day-to-day care” for a child to a greater extent than the other parent. 

The concept of “day-to-day care” is distinct from “shared care”.  It requires a forensic examination of a child’s daily schedule to determine if one parent is more involved in this than the other parent.  The Child Maintenance Service will pose the following questions to the parents of the child in order to determine the factual position:

1. Who does the child spend most of their time with when they are not at school or nursery?
2. Who pays for most of the child’s clothes and meals?
3. Who arranges and pays for any childcare costs?
4. Who is the usual contact for the child’s school or nursery?
5. Whose GP or dentist is the child registered with, and who accompanies the child to appointments?
6. Who has the greatest involvement in the child’s recreational activities and is responsible for paying for them?
7. Who already receives financial support, such as benefits or local authority assistance for the child?

The answers to these questions can make or break a case.  If they reveal that one parent is more heavily involved in the child’s day-to-day care, then the Child Maintenance Service could uphold the terms of a maintenance assessment.  If they reveal that both parents play an equal role in the child’s day-to-day care, then the Child Maintenance Service will overturn the terms of a maintenance assessment.  

What if a parent disagrees with the decision of the Child Maintenance Service?

If a parent disagrees with a decision of the Child Maintenance Service and wishes to challenge it, then he or she should request a Mandatory Reconsideration.  This request can be verbal or written.  It must be submitted to the Child Maintenance Service within one month of the date of the decision letter.  Once the Child Maintenance Service has received a Mandatory Reconsideration, they will undertake a detailed review of the original decision and consider if any changes are required to be made.  Once the Child Maintenance Service has reached a conclusion, they will then prepare and issue a Mandatory Reconsideration Notice to both parties.  This will set out whether the original decision will remain in force or be revised.  If a parent is not happy with the outcome, then he or she can appeal to an independent tribunal within one month of the date of the Mandatory Reconsideration Notice. 

Conclusion

It is recommended that each party instruct an experienced family law solicitor at the outset of any child maintenance dispute, given the complexity and potential financial implications.

Please contact us if you are affected by any of these issues.  Our Family Law Team is here to help.  This article was prepared by Laura Cousins, Solicitor.

The content of this article is for information only, is not intended to be construed as legal advice, and should not be treated as a substitute for specific advice. Scullion LAW accepts no responsibility for the content of any third-party website to which this article refers.