With few exceptions, child support payments are regulated by The Child Support Act (“the Act”) and administered by the Child Support Agency (“the Agency”).
By the end of December 2009 the parents of 809,800 children were receiving maintenance through the Agency.
The Act was originally introduced in response to a failure on the part of the courts to make adequate and sufficient provision for child maintenance. The courts were consistently underestimating the cost of bringing up children. In response, the Government attempted a radical reform of child maintenance. The Agency is responsible for administering the rules.
The 1991 Act was badly thought through and had to be frequently amended in consequence. The Act and the myriad of regulations which underpin it is almost incomprehensible to all but a few experts.
For further information or to contact us for an appointment regarding child support law and related legal issues please call our family law specialist solicitor Colette Kerr on 0141 332 0915 or fill out our online enquiry form.
At the core of the Act is a simple formula where the non-resident parent (that is the parent with whom the child/children do not normally live) pays the parent with the care of the child/children the following proportion of his or her net income –
Net income is income (including tax credits) after tax, national insurance and pension contributions are deducted.
Thus if the non-resident parent has net income of £300 per week child maintenance for (a) one child is £45; (b) two children £60 and; (c) three or more children is £75.
A reduced rate applies to non-resident parents with an income of less than £200 per week.
The child support calculations do not take into account the non-resident parent’s income over £2,000 per week. If the non-resident’s income is more than £2000 per week the parent with care can apply to the courts for extra maintenance.
Child maintenance is reduced where the children spend long periods with the non-resident parent.
Many parents make private arrangements for child maintenance within minutes of agreement (also known as separation agreements) . These agreements are unaffected by the Act. However it is open to a parent to make an application to the agency for a maintenance assessment even after an agreement has been reached.
The Agency has wide ranging powers to ensure the information it uses to calculate maintenance is made available to it and to allow it to collect maintenance from reluctant payers.
The Agency can take child maintenance directly from a non-resident parent’s bank account by way of deduction order. The agreement of the non-resident parent is not required. A deduction order is made administratively by the agency.
Similarly, the Agency can serve a ‘deduction from earnings order’ on the non-resident parent’s employer. This charges the employer to deduct child maintenance direct from the non-resident parent’s wages before they are paid to him.
Where child maintenance remains unpaid the Agency can apply to the Sheriff court for a liability order. A liability order is recognition of the debt by the court. Once granted a liability order allows the Agency to arrest money belonging to the non-resident parent, auction the non-resident parent’s assets and inhibit the non-resident parent from selling property such as his house.
The Act allows a Sheriff to imprison a person who wilfully refuses to pay some or all of his child support payments or refuses to co-operate with the Agency. The maximum term of imprisonment is six weeks. The person can also be found liable for the expenses of the prison committal proceedings.
Upon committal to prison the person can be released upon payment of the full sum. Part payment of the sum results in a proportionate reduction in the jail sentence.
Although the debtor has served a sentence, the debt remains outstanding and is not written off.
Although the Act is silent on the matter we believe that only one jail sentence can be served in respect of the debt. If however the debt continues to rise then a further sentence can be imposed.
The Act allows a Sheriff to disqualify from driving a person who wilfully refuses to pay some or all of his child support payments or refuses to co-operate with the Child Support Agency.
The maximum disqualification period is two years. If the debt is repaid the disqualification is revoked. A further period of disqualification can be imposed when the ban has expired and if the debt remains unpaid. Further debts in the future can also lead to subsequent bans.
Where a person knowingly makes a false statement or provides false or misleading information to the Agency he is guilty of an offence which can lead to a fine of up to £1000.
Inspectors may be appointed by the Secretary of State to acquire information on non-payers. These inspectors will be employed by the Agency. Inspectors can enter premises to ‘make such examination and inquiry as he thinks appropriate.’
The inspector must have reasonable grounds for suspecting that the premises are:
Premises include all types of premises including aircraft, ships, oil rigs, buildings except those used wholly as a residence. Thus a home with a home office can be searched.
In the year to October 2009 the Agency sent out over 65,000 deductions from earnings orders. In the courts, the Agency obtained 26,000 liability orders and over 800 non-resident parents received prison sentences during the same period.
The effectiveness of the Agency and the Act has been subject to continuing adverse criticism since the 1990’s. The Agency was described in early 2010 by M.P.’s on the public accounts committee as “the greatest public administration disasters of recent times”.
There are signs that the Agency is becoming more efficient at recovering child maintenance on behalf of parents with care and is using its extensive powers more effectively. However the statistics disclose that recovery of maintenance is still poor: by December 2009 only 74.5% of non-resident parents who had a liability to pay maintenance made a payment.
The passing into law of the Child Maintenance and Other Payments act 2008 will result in the CSA being abolished and replaced, in 2010-2011, by the Child Maintenance and Enforcement Commission (CMEC).
The regulatory structure will herald a new scale calculation for child maintenance which will result in child maintenance being calculated on the basis of gross income.
CMEC has been given a number of enforcement options including the removal of a passport, curfew orders, imprisonment and disqualification from driving. Perhaps most importantly will be the removal of the need to apply to the court for a liability order thus increasing significantly the speed and volume of enforcement action against non-compliant parents.
The Child Maintenance and Enforcement Commissions web site can be found at www.childmaintenance.org.
To contact us for an appointment please call or e-mail our family lawyer Colette Kerr on 0141 404 1091 or [email protected]. For general queries surrounding any family law matter please fill out our online enquiry form.