Child Maintenance and Financial Support for Children

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 your children’s clothes, shoes, and school uniform.
• Who will pay for any sports equipment and kit.
• Who will pay for school trips.
• Who will give your children 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.

The Child Maintenance Service (CMS) is the government’s statutory child maintenance service. The CMS can calculate as well as collect child maintenance payments.

The CMS refer to parents as the parent with care (PWC) and the parent with whom the child does not live as the non-resident parent (NRP).

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.

If the NRP is not habitually resident in the UK, the CMS will not have the power to make a maintenance order unless 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

The Gross Income Scheme

The CMS method of calculating child maintenance is called the gross income scheme.

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 do your children 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)

Varying a CMS assessment

The grounds for variation fall into two categories:

• Special expenses and
• Additional income

The regulations specify five categories of special expense:

• Contact costs
• Expenses attributable to long-term illness or disability of a relevant other child
• Prior debts
• Boarding school fees
• Payments of mortgages, loans, or insurance policies

Additional income

A variation can be considered on the basis that the NRP:

• Has unearned income
• Has income from assets exceeding an aggregate prescribed value of £31,250
• Is on a flat or nil rate but has gross weekly income equal to or more than £100
• Has diverted income.

Where a calculation has been made by the Child Maintenance Service (CMS) on the maximum level of assessable income (currently £156,000 per annum), the court recovers the power to make an order.

A top-up order is an order requiring 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.

Under Schedule 1 of the Children Act 1989 unmarried parents can apply for maintenance as well as for housing and capital for the benefit of a child.

The court can make a variety of financial orders including:

• Periodical payments order.
• Secured periodical payments order.
• Lump sum order (to include a lump sum to be paid in instalments).
• Settlement of property order.
• Transfer of property order.

Who may apply?

Those entitled to apply are set out in paragraph 1 (1) of Schedule 1 and are:

• A parent of a child.
• A guardian or special guardian of a child.
• An adult child.
• Any person named in a child arrangements order as a person with whom the child is to live.

Who is a parent?

‘Parent’ is defined as being the biological parent or other persons who are parents by operation of the law. 'Parent' includes any party to any marriage or civil partnership, whether or not subsisting, in relation to whom the child concerned is a child of the family. This will therefore include step-parents.

A ‘child of the family’ in relation to the parties to a marriage or civil partnership is defined as either a child of both of them or any other child (other than a foster child) who has been treated by both of them as a child of their family. The child must live with the applicant.

Who is a child?

A 'child' is defined for the purpose of the Children Act 1989 as a person under 18.

However, subject to the Child Support Act 1991, an adult child, whose parents are not living together in the same household and in respect of whom there was no periodical payments order enforced before they reached 16, is able to apply for periodical payments or a lump sum if either they are in full time education or training, or where there are special circumstances such as a disability.

For the benefit of the child

The claim by the applicant can only relate to the needs of the child and any order made must be to the child directly or to the applicant for the benefit of the child.

If a married couple or civil partners apply for financial remedies during their divorce or dissolution the court can make a child maintenance order (also known as a periodical payment order) 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.
• It is an order against a person with care of the child (PWC).
• 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 a child maintenance arrangement, parents will have to apply for a child support assessment by the CMS.

If parties can agree child maintenance the court can make an order (called a consent order) reflecting the terms of the agreement. Any order for child maintenance (excluding a school fee 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, either party 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.