Child maintenance payments – how to agree, appeal and pay legal fees
When parents separate, a non-resident parent (that is the parent who does not live with the child) is required to pay regular financial support towards their child's everyday living costs.
How to agree child maintenance
In many instances, parents are able to agree a figure that is to be paid in child maintenance; usually assisted by the Government's free online calculator. Child maintenance is calculated in line with a percentage formula applied to the 'non-resident parent's' gross income. A discount can be applied for shared care where the child stays overnight for one night in seven or more with the non-resident parent.
Where parents cannot agree, either parent can apply to the Child Maintenance Service (CMS) for a formal assessment, whereupon a £20 application fee will need to be paid. If you use the CMS to collect and enforce, the paying parent has to pay an additional 20% on top of the maintenance assessment, and the receiving parent has to pay a 4% collection fee when the payment is passed to him/her, so the amount he/she receives is reduced accordingly. There is therefore a big incentive to try to agree matters. If the non-resident parents earns over £3,000 gross per week, it is also possible to apply for further child maintenance. An application for capital provision can also be made. Such an application would be made under Schedule 1 of the Children Act 1989. The court will take into account the financial resources of each parent and the child, the parents' needs and the child's financial needs, any physical or mental disability of the child and the manner in which the child was, or was expected to be, educated or trained. The important distinction to be made is, unlike upon a divorce, the financial provision awarded must be for the benefit of the child, not the parent. Consequently, the awards are much less generous usually than compared to a divorce scenario and the paying parent could receive their property and some of the money awarded back once the child reaches 18 or finishes education.
Appealing an assessment
If either parent believes that the CMS assessment is incorrect or if there is any additional information that has not been considered, then it is possible to apply for a mandatory reconsideration. An application for a mandatory reconsideration must be made within one month of receiving the CMS assessment.
During the mandatory reconsideration, the CMS will re-examine the facts and evidence used to make their original assessment, alongside any new evidence that has been made available. The CMS then determine whether to uphold their original decision, or whether to change the assessment. Once a determination has been made, a Mandatory Reconsideration Notice is sent to both parents.
If a parent is not satisfied with the outcome of the mandatory reconsideration and continues to believe that the assessment is incorrect, then it is possible to appeal the decision of the CMS. A Tribunal will then consider the appeal.
The recent case of BC v DE (2016) may provide some reassurance to mothers seeking financial provision on behalf of their children. This case found that the mother, who had no financial resources of her own, was entitled to receive from the wealthy father money to pay her legal fees to ensure equality of arms. This was found to be in the best interests of the child, as otherwise the mother may have felt pressured to accept an unfair deal because of her inability to pay her lawyers' fees and their unpaid bills.
For advice on child maintenance payments please contact the Blake Morgan family team.