ENGLAND & WALES Law and Practice Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
culate child maintenance due. The formula used to calculate child maintenance is contained in Schedule 1 of the CSA 1991 (see, in particular, paragraphs 2, 5A, 6 and 7). CS3 now applies, which is the third version of the formula. The Child Support (Enforcement) Act 2023 allows the CMS to impose tougher sanctions on non-paying parents – including the making of “liability orders” for non-paying parents – with - out having to apply to the courts. Previously, the CMS needed to apply to the court to obtain a liability order before they could use their pow - ers of enforcement under “enforcement orders”. This change will reduce delays for the receiving parent. Enforcement orders can include a sheriff officer going to the liable parent’s home to value their belongings that could then be sold to meet arrears, or disqualification from holding a driv - ing licence or UK passport for the non-paying parent. The CMS’ approach to calculating child mainte - nance is as follows. • Gross income of the paying parent is worked out. • The CMS will then check for things that will affect this gross figure (eg, pension contribu - tions). • The CMS will apply one of five rates for the paying parent (for all incomes above GBP200 gross per week the basic rate will be used). • The CMS will factor in any other children that the paying parent is supporting. • Using the first four steps, the CMS will calcu - late the weekly amount due. • A deduction will then take place where the child stays overnight with the paying parent. Where the paying parent earns over GBP156,000 or either party lives abroad, the jurisdiction to
make awards lies with the Family Court. Judges at the Family Court retain a broad discretion when adjudicating on the amount of mainte - nance due. The level of such child support has been growing throughout the years and the court has recently delivered slightly conflicting judgments about the basis on which such main - tenance should be calculated – ie, whether on the basis of a fixed formula, on the basis of a consideration of the lifestyle of the child, or on a more general basis. Child Maintenance Agreements Without Court Involvement Parties are at liberty to agree child maintenance arrangements without any involvement of the court or the CMS. Only where there is a dispute will the court or the CMS get involved. Child Maintenance Orders The Family Court retains jurisdiction to make orders on child maintenance where the paying parent earns more than GBP156,000 or a parent lives abroad. Further, the Family Court is able to make orders by consent where parties agree on the amount of child maintenance due as part of the overall financial negotiations. Important - ly, however, the Family Court’s jurisdiction can only be excluded for 12 months – at which point, either party will be at liberty to apply to the CMS for an assessment of the amount of child main - tenance due. The maintenance can be ordered to be paid until the end of the child’s education or until their 18th birthday. Under limited circumstances, a child can apply for financial provision under Schedule 1 of the CA 1989 when they are over 18 – for example, to assist with educational or vocational training.
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