Child Support and Overseas Parents
I recently heard a case about a father, living overseas, who was billed £12,000 for child maintenance by the Child Support Agency (CSA) when he returned to England. My first thought was there had been an administrative error. The rules on child maintenance state that the CSA is unable to become involved in a case when the non-resident parent is habitually resident abroad.
When I explored the facts before me, however, I was soon engulfed in the CSA’s labyrinthine complexities.
According to the CSA’s Quarterly Statistics, more than 6,200 non-resident parents are living abroad but only a quarter of these are paying child maintenance through the CSA. The CSA is unable to enforce maintenance abroad, but this does not mean that the assessed maintenance is written off. Instead, a debt accrues at the CSA in each case. No wonder the CSA has a resource problem – combined, these debts could be in the millions!
Legislation introduced in 1991 meant that on the face of it, a move abroad and habitual residence there was the ideal way for a non-resident parent to evade financial responsibility for a child. This changed in 2000, when the rules were amended to allow for certain circumstances when the CSA would still have jurisdiction to enforce maintenance. These circumstances include:
- When the non-resident parent works for a UK based company abroad.
- When the non-resident parent is a civil servant or works within Her Majesty’s Diplomatic Service or Her Majesty’s Overseas Civil Service.
- When the non-resident parent is a member of the armed forces.
- When the non-resident parent works abroad on a secondment for a prescribed body such as a NHS trust or a local authority.
Additionally, the vagueness of the term “habitual residence” can give rise to grey areas. The CSA does not define habitual residence; nor is there any case law that deals with this definition in the context of the CSA.
In general terms, “habitual residence” would suggest that you are resident in the country in which you are living. However if the non-resident parent’s sole motivation for a move abroad is work commitments, and they intend to come back to the UK, then the CSA could view their habitual residence as being in the UK. This is especially true if there is already a home and family in the UK, or if the parent spends more than 92 days a year in the UK and is registered as resident for tax purposes.
So when doubt hangs over a parent’s “habitual residence”, that parent may face a bill for ongoing maintenance and arrears accrued during time spent abroad. If this bill is left unpaid, it can be enforced by the CSA through the courts, using a Deduction of Earnings Order. This would mean that the CSA could take a sum out of the parent’s earnings each month, at source. Alternatively the non-resident parent could contact the CSA and try to come to some agreement over how much they can pay and when.
There are other processes whereby maintenance can be enforced upon a parent living abroad. The Reciprocal Enforcement of Maintenance Orders (REMO) allows orders made for maintenance in a UK court on behalf of a UK resident to be enforced by either the courts or authorities of the foreign country in which the non-resident parent is living. A list of countries that are party to this process can be found on the CSA website.
In order to begin this process, the parent with care of the children should either apply to the magistrates’ court to register an already existing order abroad, or apply to the magistrates’ court to make an order for maintenance to be registered abroad. The order then effectively becomes an order of that foreign country and is, therefore, governed by the law of that country.
If arrears of maintenance accrue through the courts and are backdated by more than 12 months you must obtain leave of the court before you are able to reclaim these. By contrast the CSA has no cut off date for arrears and are entitled to enforce arrears which are more than 12 months old. A CSA assessment will not accrue arrears if it is suspended by the parties, but will otherwise continue to accumulate.
Ultimately, it should be remembered that child maintenance is money that is owed to the child, not the other parent. Child maintenance is the responsibility of the non-resident parent and therefore it should be paid.
If the non-resident parent believes that their assessment is wrong or they cannot afford to pay then there may be some virtue in asking for a review or an appeal of their assessment. However this must be done within one month of receipt of the letter detailing the assessed amount that they are liable to pay.
So it seems that non-resident parents who think moving abroad will help them elude the CSA may have to think again. Parents who move abroad for legitimate reasons also need to consider whether they remain subject to the CSA’s assessments – and prepare accordingly.
Rachel Baul joined Stowe Family Law in 2004, and is a member of the Law Society’s Family Law Panel. She specialises in all areas of family law and ancillary relief, and has been commended by a number of the firm’s high profile clients.
Note: This blog receives lots of queries related to the Child Support Agency (CSA). Unfortunately, because of the complex and labyrinthine nature of CSA processes and rules, such questions often call for lengthy and long-winded answers. For this reason, it is difficult to answer such queries on an individual basis.
If you are seeking advice about a situation that involves the CSA, perhaps these earlier posts will help. If your CSA-related query is of a pressing nature, I recommend that you contact the National Association for Child Support Action: a hardworking organisation that can provide ongoing assistance, advice and support.
Child and sea image credit: Pingu1963.
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5 Comments
stephanie Botterill on August 24, 2010 at 4:42 pm
When my son was nine months old his father left and to cut a long story short, didn’t contribute towards his upbringing, emotionally or financially. My son would get a visit once every six months if he was lucky.
In early 2003 (when my son turned 4-years old) the Child Support Agency finally started to pay us from my sons father’s wages. This lasted until August 2004 when his father went abroad, our payments abruptly stopped and I was told that there was nothing that could be done. However I was told that his account would remain open until he notified them personally that he was out of the country. I was quite happy knowing that as long as he was out of the country he would still accrue arrears.
I spoke to the Child Support Agency later in 2006 who then decided that, because he was still out of the country, his account would freeze and no longer build up arrears from that point on.
I would like to draw to your attention the fact that I was a lone parent at the time (for five years), in and out of work trying to make ends meet and there was my son’s father having a very long holiday and not taking care of his responsibilities.
On his return to England in February 2009 my case was re-opened in July 2009. He then returned to work in late 2009 and the CSA then had to track him down again and reassess his income.
A year later we have received a letter from the CSA stating that my son will be entitled to £14.00 per week.
His father claims to be self employed (but works for his brother) and claims that his income varies drastically. Yet he works full time and has only declared weekly earnings of £137.00, hence my son getting a minimal amount of financial support. I’m having to seriously question what is going on here.
My biggest issue now is that I have been informed that the arrears he started to accrue when he first left the country will now be wiped clean. The law states that if a Non- Resident Parent leaves the country and stops paying Child Support (through choice) and is not working for a British company, no arrears will accrue from the moment they leave the country. Does a parent’s responsibilities cease just because they’re out of the country? Does the Government find it acceptable to let someone run away from their responsibilities so easily? I understand it is hard to keep track of someone’s employment when abroad, but I would have thought that a default amount would be set per month for the father (or mother) whilst out of the country, then re-paid to the child when they return to work in England.
This legislation needs to be reassessed, because from my view point it looks like the CSA are only there to benefit the parents shirking their responsibilities and not to benefit the children.
Mothers and fathers who have been left by themselves are being miserably failed by an outdated system , this law NEEDS to change within the CSA.
I have complained more than once to the CSA about these issues and they have told that me they can’t do anything as the law and legislation is very black and white.
I have spoken to the CSA again today and they have confirmed to me yet again that when the Non- Resident Parent leaves the country and doesn’t work for a British company, they stop acrruing arreas. How is this fair? Why can he get away with this? So what if didn’t work for a British company, surely my son should be owed something!
I’m going to kick up a big fuss about this as my son and I have been treated so badly and the CSA have only done favours for my son’s father, not my son.
S A Botterill.
Name Witheld on August 16, 2011 at 5:18 am
I am a non resident parent living abroad.
I fought the Child Support Agency for 6 years. For one child I was meant to pay 15% of my earnings. The calculations by the Child Support Agency reached as high as 90% of my earnings.
The CSA refused to accept copies of my bank statements or Income Tax returns and stated all information had to come from the resident parent.
I tried to fight the Child Support Agency through the Court but I was told by the Magistrate to “sit down and be quiet, if the Secretary of State says you owe money, then you owe money”. The Child Support Agency does not have to explain there calculations therefore if you are the father of the child you are guilty and a Court Liability Order is issued. At the end of 2009 the Child Support Agency was given new powers and could directly issue Liability Orders bypassing the court.
I tried to enlist help at four big law firms in Doncaster and was shown the doors, one solicitor that would talk to me advised me that as long as I had property I would not be left alone. I attended the Citizens Advice Bureau in Thorne and was told that there was nothing they could do for me. They said the Child Support Agency was a law unto themselves and that legal firms had stopped taking the cases because they could not win.
With the help of my father we wrote to everybody we could think of from the Ombudsman to the Priminister to no avail as all letters directed us back to the Child Support Agency.
In 2010 the Child Support Agency took out a court order on my property in Doncaster. The next step would be to force the sale of the property and take the proceeds. This action would also close my self employed business as I would have no where to store my stock..
The Child Support Agency is responsible for suicides as fathers are left with no finances and no hope. The only other option currently left to fathers is to leave the country and disappear. The Child Support Agency has and is trying to have passports automatically removed to stop this happening.
Realising that our property was about to be pulled from under us along with it my business, I sold everything I could and chose to disappear. I now live abroad and will not return to the UK. At best the future for me in the UK would have been a bed-sit on the DHSS and no money to take my daughter out, at worst a prison sentence for non payment of money I could not afford and did not owe..
I love my daughter very much and do not believe I took an easy way out. I keep in touch with my daughter by email, and still support her financially.
M
I currently hold a three inch file verifying all the above and my story in great detail.
Tulsa Divorce Attorneys on September 10, 2011 at 6:57 pm
So according to the 2000 amendments, the CSA does have jurisdiction over non-residents living abroad and if the non-resident does not pay CS, then an arrearage accrues that the CSA keeps track of and the CSA has the legal authority to collect on the arrearage??? very interesting.
I would have thought that the Hague Convention would come into play into play in this scenario.
susan on January 24, 2012 at 7:59 pm
the csa, did nothing to help me all those years ago, my x husband at the time, worked in car showroom, ran two buisnessess from home was told not allowed to touch that income, all my child was awarded was £ 2.50 a week when he lived the life of luxury , holidays abroad, we dont no what it is to have a holiday. they let us down , and to this day im sure they are letting alot of others down.
he also has a daughter, bit younger than our son, and a 3rd now in thai land. so im not sure how much he owes the csa thats probaly why he left the country after making a profit on 28 charter house road. i hope they get their payment but he will always lie and cheat his way out of his resposibility for at least 2 of his children, i no of their maybe many more.
Lancelot on January 29, 2012 at 5:29 pm
@Susan
We, we, we… Me, me, me. Good on your ex moving away. All you want is money for yourself and holidays. Why should he pay for your luxuries?
It gets me so mad. You women get EVERYTHING from the state. Help towards bills, housing, benefits and most of you work part time or not at all and sit on your asses.
I think it’s a joke. A guy does well for himself, and the women only want for themselves. Selfish the lot of you.
If you’re in hardship you should have thought about that before you had children, you should have made better life choices and made a career for yourself like your ex has.
Note Editor has removed the rest of this post as abusive.