Part of: Financial Settlement after Divorce
Child Support for Second Child and Other Children
Child Support is also known as child maintenance. Child maintenance is designed to make parents responsible for maintaining their children, and the Child Maintenance Service uses a child maintenance calculation that is usually based on the paying parent’s gross income and gross weekly income. Non-resident parents (who do not live with the child) make periodical payments to the receiving parent who lives with the child and is responsible for the day to day care of a child, although shared care can reduce what is paid when the child spends overnight time with the other parent. Child support payments are often required to be made when the parents separate or divorce and once the child arrangements for children are decided.
The case law of GC v Secretary of State for Work and Pensions & AE
Our child law specialists consider a recent case of GC v Secretary of State for Work and Pensions & AE (2019) in which a father is making child maintenance payments for a second child. This case considers whether fathers support for second child should be taken into account when calculating child support. Many people would often argue that child maintenance a father pays for another child should be taken into account when assessing child support, however this matter was not that simple.
Background information of the case for Child Support for Second Child
The case concerns a father who has a child named James in the UK who resides with the mother. The father also has another child from another relationship named Williams who resides in Denmark. The father had entered into a voluntary arrangement with the mother of William in Denmark to provide child support for Williams which he has been making over ten years.
The mother of James applied for child support to the Child Maintenance Service who are referred to as the commission. An application to the Child Maintenance Service CMS must usually be started through the online service for a child under 16, and it usually responds within 4 weeks. An assessment was made by the commission and it was calculated the father was to make weekly payments of £144.39 in respect of James. The commission had not taken into account the child support payment the father was making for his child Williams who was a resident in Denmark. The father subsequently appealed this decision.
The matter went before the First-Tier Tribunal who has to consider whether the Commission is entitled to take into account the father’s payment towards his other child Williams who was living abroad in Denmark. The commission and the First-tier Tribunal were both of the opinion that the payment to a child who was living abroad should not be taken into account.
The legal regulations and child maintenance calculation
Section 9 of the Children Act 1989 makes provision for maintenance agreement between parents and does not prevent any person from entering into a maintenance agreement. The Act also encourages the making and keeping of maintenance agreements.
The regulation which deals with child maintenance payments is section 52 (1) of the Child Support Maintenance Calculation Regulations 2012. This regulation states:
52 – (1) a case is to be treated as a special case where –
(a) an application for maintenance calculation has been made or a maintenance calculation is in force with respect to a qualifying child and a non-resident parent;
(b) there is a different child in respect of whom no application for maintenance calculation may be made but whom the non-resident parent is liable to maintain
(i) in accordance with a maintenance order made in respect of that child as a child of the non-resident parent’s family, or
(ii) in accordance with an order made by a court outside Great Britain or under the legislation of a jurisdiction outside the United Kingdom; and
In general, the CMS calculates child maintenance based on the paying parent’s income. The main rates are a flat rate of £7 per week where gross income is under £100 weekly, a reduced rate where gross income is between £100 and £200 weekly, and a basic rate where gross income is £200 or more weekly. The amount can then be reduced by a percentage depending on the number of children supported, including 19% of income where there are three or more children.
According to the above regulation maintenance payments must be made under a court order or under the legislation of a jurisdiction outside the United Kingdom.
In this situation fathers payments to his child in Denmark were not under a court order which the regulation required as they were under a voluntary arrangement. It also seems the commission and the First-Tier Tribunal interpreted the payments were not made under the legislation of Denmark.
The considerations of the fathers appeal for child maintenance
As this was one of the first case of its kind the matter proceeded to the Upper Tribunal. The issue the judge had to consider concerned the status of an arrangement between William’s parents in Denmark which was made without an order of the Danish court.
The judge granted the fathers appeal in the upper tribunal on the basis that legal clarity was required. The judge was of the opinion that there has never been any challenge to the fact that the father has been contributing to his child in Denmark. Shared care can also affect the child maintenance amount, with the CMS looking at the previous 12 months on average, and 52 overnight stays in a year reducing payments by 1/7th. No maintenance is usually owed where care is exactly shared equally between one parent and the other parent. The issue was whether the informal arrangement sufficed to include his support for that child under a statutory maintenance calculation.
A special case under regulation 52 is made out where a non-resident parent is liable to maintain another child under the legislation of jurisdiction outside the UK. The Secretary of State’s investigations confirm that had the parents not made an agreement between themselves, the Danish state legislation would have been invoked. Accordingly, there was liability under the legislation of a jurisdiction outside the UK and such voluntary arrangements are taken into account. However, the judge ruled that credible evidence is required to establish the arrangement itself.
In this case the judge in the upper tribunal accepted the evidence by the father which confirmed the maintenance payments he had been for over 10 years reassessed the maintenance the father was to pay for his child James who was in the UK. The judge ordered the child maintenance payments to be reduced from £144.39 per week to £96.26 per week and taking into consideration the payments the father was making to his other child William’s in Denmark.
This case provided a sensible and clear approach when considering the issue of making child support payments for a second child. You may want to rest assure that if child maintenance payments being made for the benefit of other children on a voluntary basis should be taken in account.
At Kabir Family Law we have child law experts who are able to advise on any aspects of child law as well assist you in making an application for child support payments, including how one parent may pay child maintenance through CMS, where direct pay is often tried first and the CMS can collect payments if the paying parent defaults, though it charges an additional fee, to help avoid legal action. Contact us on 0330 094 5880 to discuss your query or let us call you back.
Our family lawyers in Newcastle as well as York, Manchester, Oxford and London offer free initial consultations if you query child maintenance.
