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Sep 05

How to Handle Unpaid Child Maintenance

Reading Time: 5 mins

When couples with children are separating, it’s necessary to ensure that the child or children are adequately financially supported. Simon Fisher, Partner in the Family Team at Gardner Leader offers step-by-step advice on calculating Child Maintenance payments, the support available from the CMS and what to do if there is a problem.

The Child Maintenance Service Calculator

The CMS calculator tells you how much unpaid child maintenance you could be owed

The best place to start to find out about any due child maintenance payments is to use the Child Maintenance Service Calculator. This is through the Child Maintenance Service (CMS), the Government’s statutory child maintenance service that calculates, collects, and pays out child maintenance payments for some separated parents.

The non-resident parent must pay the resident parent the amount that the CMS calculator gives. There’s a legal obligation that provision must be made for children under 18.

Making a family-based child maintenance agreement

Consider drawing up a family based child maintenance agreement – it’s free and can be quicker and easier than involving the CMS.

You can use the CMS calculator as a guide to work out the maintenance amount due. You can also include things like bills or annual lump sums towards school expenses. It’s a good way to reach an agreement together and stay on good terms with your partner. Together, you can make special arrangements or changes any time, quickly and easily.

When to use CMS Collect and Pay

However, a family based agreement isn’t legally binding and if, for example, the child’s parent refuses to take responsibility or stops paying, they can’t be forced to legally do so.

If the non-resident parent refuses to pay maintenance, or if one of the parties is unwilling to share personal details, then you can turn to the CMS Collect and Pay Service. The CMS has the power to collect the money, but charges a fee to both the payer and receiver for using the service. This reduces the amount of money you receive.

Paying parents have to pay a 20% collection fee on top of their usual child maintenance amount and receiving parents pay a 4% collection fee deducted. So, although it guarantees payment it can be costly.

Common problems with payments

Getting evidence of the former partner’s income can often be a problem – less so when there are payslips as evidence but more so when partners are self-employed or has a limited company.

Make sure you get evidence every year from your paying partner so it can be reviewed regularly. If you’re struggling to get this information then the CMS can assist, or there are companies that do private searches. As well as child maintenance, you can also apply for a lump sum for things like housing of a minor child using Schedule 1 of the Children Act. But ensure to get specialist advice on this before making an application and use it on top of any child maintenance claim.

CMS Enforcement Action

If you’re not receiving expected maintenance payments then The Child Support Agency (CSA) or the CMS can step in to recover arrears through the Department of Work and Pensions. They have the power to force payment. They either make deductions from an account held by the person who has failed to pay child support, or from their wages (called an earnings order), or they can issue lump sum deduction orders.

When to go to court

When to go to court for unpaid child maintenance

There are limited circumstances when you can apply to the court about child maintenance payments as typically the power is with the CMS. But, if the CMS enforcement methods have failed, the CSA or CMS can apply to court for the person who has failed to pay to be disqualified from driving or sent to prison. A court can also stop this person from having and using a UK passport.

The court can make or vary orders for maintenance for children as following: –

  • A court order is in force that was made prior to 3 March 2003
  • A court order was made after 3 March 2003 and it is less than 12 months’ old
  • The parties have agreed a maintenance figure and want that agreement made into an order
  • The CSA has made a maintenance assessment and the NRP’s net income exceeds £104,000 a year, in which case the court can make a top-up order
  • The CMS has made a maintenance calculation and the paying parent’s (PP’s) gross income exceeds £156,000, in which case the court can make a top-up order
  • To meet expenses in connection with instruction at an educational establishment or training for a trade, profession or vocation, even if the child is in gainful employment
  • If the child has expenses attributable to a disability—in such circumstances there is no age limit
  • If the child is resident abroad or non-resident step-parent is resident in England or Wales
  • If the child is resident in England or Wales or non-resident step-parent is resident abroad and is not employed by the civil or diplomatic or armed services of the Crown, or employed by a company registered in the UK

Even when the court decides they have power to deal with child maintenance they will still have to refer to the CMS calculator to decide the amount of the payment.

You can also appeal against a child maintenance calculation if these are not accepted for whatever reason, but it must be made within one month of the notification of a decision.

Free Help and advice

There are various bodies that offer free help and support to parents including the Citizens Advice Bureau and Gingerbread, a charity which offers advice and information to help parents understand how to arrange child maintenance payments, use the CMS and information on challenging a child maintenance calculation.

In summary, you should exhaust using the CMS first and foremost for all child maintenance situations and the starting point is always the CMS calculator. Setting out a family based child maintenance agreement is always best. But if that is not possible for any reason then look to enforcement methods through the CMS. Going to court really is the last option and there are very limited circumstances where an application can be made. If these circumstances do apply, then the court can deal with the issue and ensure that the child or children are legally and financially supported.

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