Child maintenance (also commonly called child support) is financial support payable towards a child’s everyday living expenses.  It can also cover one-off expenses and housing costs.  You can agree the level of maintenance between you, ask the Child Maintenance Service (CMS) to calculate the amount or in certain circumstances the court can make an order.  In this article we explain what your child maintenance obligations are and how to go about agreeing the level of maintenance. 

Private Arrangement for child support 

If you can agree the level and frequency of child maintenance, you can record your agreement in a written document called a child maintenance arrangement.  This will not be legally binding and therefore if circumstances change it will be easy for you to review your agreement. 

Arrangements you may want to include within your agreement can include:

  • Who will pay for the child’s clothes, shoes and school uniform;
  • Who will pay for any sports equipment and kit;
  • Who will pay for school trips; 
  • Who will give the child pocket money;
  • Who will pay for one-off items such as computers, bicycles or musical instruments;
  • How often will the maintenance be paid; and 
  • When, or in what circumstances, will the arrangement be reviewed. 

If you need help in deciding the amount of maintenance you can consider using the CMS assessment  calculation (see below for a detailed overview).  A child maintenance calculator using the CMS assessment calculation is available on the government website Calculate your child maintenance – GOV.UK (www.gov.uk).

For more information on entering into a child maintenance arrangement and a downloadable form to record your agreement can be found on the government services website Child Maintenance Service: Make a private arrangement – GOV.UK (www.gov.uk).

Assessment by the Child Maintenance Service 

The CMS method of calculating child maintenance is called the gross income scheme.  The CMS has the power to assess child support when the following apply:

There is a qualifying child who is either under the age of 16 or has attained the age of 16 but not the age of 20 and meets the following criteria: 

  • Child benefit is paid in respect of them;
  • They are receiving full time, non-advanced education at a school or college (to end of A-levels or equivalent, not university) which is not provided by their employment or any office held by them;  
  • They are being provided with full-time education in England, which is not a course in preparation for a degree, a diploma of higher education, a higher national certificate, a higher national diploma, a teaching qualification, any other course which is of a standard above ordinary national diploma, a national diploma or national certificate of Edexcel, a general certificate of education (advanced level), or Scottish national qualifications at higher or advanced higher level provided by virtue of their employment or any office held by them;
  • There is a parent with care (PWC), usually a parent, who provides day-to-day care of the child;
  • There is a non-resident parent (NRP), the parent with whom the child does not live;
  • The parent with care, non-resident parent and child are all habitually resident in the UK. 

If the NRP is not habitually resident in the UK, the CMS will still have the power to make a maintenance calculation if the NRP is:

  • An employee of the civil service (including the diplomatic service and the overseas civil service); 
  • A member of the armed forces; 
  • Employed by a company (registered under the Companies Act 2006) that employs personnel to work outside the UK but makes calculations and payment arrangements in relation to earnings in the UK.
  • Employed by one of the following prescribed bodies:
    • NHS
    • Primary care trusts 
    • Health authorities
    • Local authorities 
    • Health and social service trusts and boards
    • Central services agency, or 
    • Other health boards 

Where a child’s day to day care is shared equally, no CMS liability arises.  If parents cannot agree the number of nights of overnight contact the CMS will look to see what pattern of contact there has been for the previous 12 months.

What is assessable income?

The CMS calculation is based on gross income figures without any deductions for tax or national insurance. Income will include employment income, pension income (but not UK social security pension), social security income and trading income (after any carry forward trade loss relief).  Gross income is then adjusted to take account of any pension contributions made during the year.  Account can also be taken of charges when converting foreign currency into pounds sterling if the NRP receives income in a currency other than pounds sterling. 

Under the gross income scheme the maximum amount of gross income from all sources which can be taken into account is £3,000 a week, £156,000 per annum.  Any income above this level will be ignored.

Under the gross income scheme the CMS must review each maintenance calculation every 12 months.  On the review date each year the CMS will, if available, obtain updated information from HMRC in relation to the NRP’s earned income.

How often does the child stay overnight? 

The number of overnight stays a NRP has is taken into account in the child support calculation.  To complete the assessment, you will need to work out how many overnight stays there are in a year from the following categories:

  • Less than 1 night a week (less than 52 nights a year)
  • 1 to 2 nights a week (52 to 103 nights a year) 
  • 2 to 3 nights a week (104 to 155 nights a year) 
  • 3 nights a week (156 to 174 nights a year) 
  • More than 3 nights a week (175 or more nights a year) 

Child Maintenance Orders (also known as periodical payments) 

The family court can make child maintenance orders if:

  • The CMS does not have jurisdiction;
  • Parents agree a child maintenance order;
  • It is an order providing for a child’s educational expenses or for costs attributable to a child’s disability;
  • It is a top up order (see explanation later in this guide); 
  • It is an order against a person with care of the child;
  • There is a court order already in existence about child maintenance made prior to March 2003. 

If none of the above apply, a PWC has no right to apply to the court for a child maintenance order and, failing agreement to enter into a child maintenance arrangement, will have to apply for a child support assessment by the CMS. 

If you and your former partner agree the child maintenance arrangements, the court can make an order (called a consent order) reflecting the terms of your agreement.  Any order for child maintenance (excluding a school fees order and an order attributable to a child’s disability) will prevent an application to the CMS for a child support assessment for a period of one year.  Once the child maintenance order has been in force for more than a year, you or your former partner may apply to the CMS for an assessment.  Once a child support calculation has been made it will automatically end the court order for child maintenance, except for orders made to meet educational expenses or expenses attributable to a child’s disability. 

A child maintenance order must not extend beyond a child’s 17th birthday, unless the court thinks it is right in the circumstances for the order to be made for a longer period. If so, the order cannot extend beyond a child’s 18th birthday unless the child is, or will be, in training or education, or there are special circumstances (for example, the child has a disability).

If the parent making the payments and the parent receiving the payments live together for more than six months, the order will cease. An order also ceases on the death of the person making the payments.

Top up order 

Where a calculation has been made by the CMS based on the maximum level of assessable income (currently £156,000 per annum), the court recovers the power to make an order for ‘top-up’ maintenance. This is an order requiring an NRP to make child maintenance payments over and above the CMS child support calculation. It does not extinguish or replace the CMS calculation, rather a top-up order is payable in addition to a CMS child support calculation.

For an overview of other financial orders the court can make for a child download Our Guide to Schedule 1 of the Children Act. 

The team at Watson Morris Family Law have considerable experience advising on child maintenance and financial provision for children.

Written by Caroline Watson

October 25, 2022

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