But there are some cases that it would be simply wrong to ignore and which provide examples of how a determined father can string out a case for years, while the hapless mother is unable to apply to court and circumvent a circus of litigation that takes place at the public expense.

Cases involving non-resident parents are often particularly messy and complicated. And the Child Support Agency (CSA) has accumulated £3.8 billion in arrears by non-resident parents during its 18-year lifespan.

The case of GF v CMEC (2011) UKUT 371 (AAC), published last month, is yet another example of an inefficient and cumbersome draftsmanship at work. It centres on an argument as to whether an English father should pay his English child maintenance if he is working abroad. You might think the obvious answer is “yes”. After all, what difference does it make where he earns his money?

In court that fact would not be a bar. In “the other world” of the Child Maintenance Enforcement Commission (CMEC), it is. You cannot apply to the Child Support Agency (CSA) for a child maintenance arrangement unless “the parent without the main day-to-day care lives in the UK, or works in the civil service, the armed forces or for a UK-based company.”

However, following this decision things aren’t quite so straightforward – although we don’t yet know whether the argument will stop here. And whatever may still happen with this case, bear in mind one point: we are not told whether the father has yet paid any child support to his daughter throughout this laborious process.

The specifics are worth a closer look because they outline just how complex and longwinded this case has been.

Ms K is the mother of one child, Lauren, who is now aged 14. In October 2007, over four years ago, Ms K first made an application for Lauren’s child support.

Five-months later, in March 2008, a decision was made that her father Mr F should pay child support for Lauren at £55.36 per week.

But by then Mr F had started work in Afghanistan. His job had begun on 23rd January 2008 and he was now being paid an increased income of some £45k per annum, tax free, by a company based in Jersey. So the amount of his CSA liability from January 2008 was some £130 per week.

Mr F did not agree to pay £55 per week for his daughter. He appealed the decision of March 2008, arguing he was now based outside the jurisdiction of Child Maintenance and Enforcement Commission (CMEC) because earnings outside Great Britain for a non UK-based company are not covered.

His appeal was decided 19 months later, in October 2009, when the tribunal found there had been a change of circumstances when he had taken a job abroad. The tribunal directed the CSA to obtain appropriate evidence of earnings and family circumstances and conduct a re-assessment.

On 19^th January 2010, two years after he changed his job, a decision was made that during that period the amount of child support maintenance should be reduced to nil because “Mr F was employed by a company based in Jersey Channel Islands and the company’s payroll was non-UK based and therefore out of the jurisdiction of the Agency”.

Imagine how Ms K must have felt when she received that decision? The father was earning a tax free income of £45k per annum, and didn’t have to pay a single penny to his daughter.

Ms K appealed on 1^st February 2010. Then on 19^th April 2010, she also applied for a “departure direction” on the grounds that the father enjoyed a lifestyle that was inconsistent with his declared income. Such a direction can be made when the Secretary of State is satisfied that the current assessment is based on a level of income substantially lower than the level required to support the overall lifestyle of the non-resident parent. Her application for a departure direction was refused on 10 May 2010. Undeterred, she also appealed this decision.

On 19^th October 2010, eight months after she first appealed, the initial appeal was allowed on the basis that the income earned in Afghanistan should be taken into account. The case was remitted to recalculate the amount of child support payable. Calculated at 15 per cent, the weekly maintenance payment was around £130 a week – equating to £6760 each year. What you might think is hardly a huge sum with which to look after a teenager.

The second appeal to request a departure direction was refused because when Mr F’s earnings were taken into account, the cost of his lifestyle was not greater than could be funded by the income and therefore the measure was considered unnecessary.

Mr F was aggrieved. He still believed his earnings outside England and Wales were not subject to CMEC jurisdiction. He appealed both decisions and his appeal finally came before a Judge of the Upper Tribunal on 30^th August 2011 – just under four years since Ms K first applied for child support. The decision has just been published.

The Judge dismissed the first appeal. His reasoning however was different to the Tribunal, so he simply substantiated his own judgement for theirs. He found that the income was indeed not earned in Great Britain, and therefore the income earned in Afghanistan is not “earnings” that should be taken into account. However, he could still take it into account as “other income” under the Regulations. He stated:

I do not accept the argument on behalf of Mr F that amounts which fall within the ordinary meaning of “earnings”, but are not within Part I of Schedule 1, cannot be “other income” falling within Part III. I think that the better construction, looking at reg. 7 of the MASC Regulations, and Parts I and III of the Schedule, as a whole, is that items which fall wholly outside Part I, by reason of the way in which “earnings” are defined, are capable of falling within para. 15 unless expressly excluded from it. The key provision is really reg. 7 of the MASC Regulations. The argument on behalf of Mr F has to be that reg. 7(1)(c), in referring to “other income”, is not intending to include amounts which are in the nature of “earnings”, dealt with by reg. 7(1)(a). However, that argument in my judgment fails by reason of the fact that by reg. 1(2) “earnings” (including therefore the use of that expression in reg. 7(1)(a)) “has the meaning assigned to it by paragraph 1, 2A or 3, as the case may be, of Schedule 1”. If, therefore, something does not fall within para. 1 (e.g. because it is from an employment abroad) it is not “earnings” for the purposes of any of the provisions of the MASC Regulations, and there is therefore no reason why it cannot fall within para. 15, unless expressly excluded.

I make no apology for including this paragraph in its entirety. I expect that 99 per cent of my readers will find it virtually incomprehensible. I also think the decision is arguable both ways. I think CMEC and then the Judge have done their best to find a way of including “income not earned in Great Britain” into the calculation despite it actually being exempt as both income not earned in Great Britain or for a UK-based company.

Should mothers seeking child support have to rely on such bizarre tautology to obtain maintenance for their children? Should fathers who clearly do earn income be able to get away with it, by earning the money and being paid tax free offshore or as in other cases, being paid through other devices to reduce their income and have to rely on departure directions? And should they then have to wait years for it all to be rectified albeit with little chance of all the monies due ever likely then to be paid?

I have no idea if at any time during the last four years the mother has ever received a single penny for the child and whether the father may even now be appealing the latest decision –still avoiding what you or I may regard as his overriding duties to his child.

So I can only wonder when a good dose of common sense – in view of burgeoning costs, poor performance and over complicated draftsmanship – will ultimately restore the issue of child support to the courts.

Yes this is a difficult case, but it is by no means unusual. More people are now working abroad than ever before and I would suggest that only the courts have the power deal with these cases swiftly and definitively.

How long would the mother have waited for a successful outcome in court? It would likely be a few months, rather than years. And once the decision was made, even if enforcement needed to be followed up in Jersey, my guess is that it would all have been in place within a year. And furthermore, the mother’s legal costs would have been paid by a father who refused to obey the requirements of the law. Can anyone argue that would not have been a better outcome for all involved?

In the recent High Court case of FG v MBW ([2011] EWHC 1729 (Fam) child maintenance payments were ordered to be made out of a non-resident father’s capital.

So does this then set a precedent for similar orders where an absent parent fails to pay a fair level of child maintenance from his or her income? Or is the ruling highly specific to the details of this case?

The circumstances of this case are particularly complex and worth considering in some detail.

Top-up maintenance

The relationship between mother and father had lasted 4 years and they had a child in 2002, named Luc, but remained unmarried. They separated shortly after Luc’s birth and the father then had a further son after marrying and then later divorcing. At the time of this judgment he resided with a new partner and had fathered a third child.

He made maintenance payments to Luc in accordance with an order made under Schedule 1 of the Children Act 1989. Maintenance payments had not been subject to a Child Support Agency (CSA) assessment because the father earned in excess of the £2,000 per week maximum level of CSA assessable income.  Therefore the case concerned a higher“top-up” maintenance payment, based on the lifestyle the mother had enjoyed during their relationship and their future expectations for Luc as they had been at that time.

Under an order made in 2005, the father paid £1,886 in child maintenance each month. This was based upon the couple’s salaries, which amounted to £130,000 per year in total. They had a comfortable lifestyle and were paying for Luc to be privately educated.

During the father’s divorce proceedings, Luc’s mother learnt that shares in one of the companies he had owned appeared to still belong to him, whereasduring the 2005 maintenance proceedings he had alleged these were in his wife’s name.

The mother obtained disclosure of the husband’s financial position as he had been presenting it during divorce proceedings.   It was shown that he hadclaimed that the shares belonged to him and had been put into his wife’s name to “ensure they were protected from a litigious ex-girlfriend”.

Giving evidence during the 2011 proceedings, the father claimed that he had only made that statement because he wanted the shares to be included in the pot of family assets for the purposes of the divorce.

The father’s earnings had also increased consistently over the years since the original maintenance order, which had been based on a projected future salary of £150,000. In addition, it was thought that he could expect significant capital growth in the future. He failed to disclose these facts to the mother and, although he had made some small voluntary increases in child maintenance, these were not proportional to his increase in income and capital.

The mother had been unemployed for some time after sustaining injuries in a car accident. She was in receipt of state benefits and her long-term prognosis and capacity to work were uncertain.

A decision born of uncertainty

There are two distinct features of this case:

• It is a “top-up” case in which maintenance is to be higher than the level at which the CSA administrates;
• Non-disclosure was alleged by the mother and the application was for an upward variation of maintenance payments. It was not a case of non-payment, but of under payment.

It is only in top-up cases,or where an agreement has been reached between the parents as to child maintenance arrangements,that the court has the jurisdiction to make a maintenance order under Schedule 1 of the Children Act 1989.  However where an agreement is reached, a party may apply to the CSA for an assessment after 12 months have passed.  This may result in the sum of the original child maintenance agreement, which may have been relatively generous, being reduced and maintenance arrangements falling outside of the jurisdiction of the court.

It may be possible for a “Christmas” order to be agreed between parties,which would have the effect of ensuring that the maintenance agreement was never more than 12 months old and therefore could not be subject to CSA assessment.

It is likely that where relations between parties are acrimonious, no agreement will be reached. Where there is no substantial wealth on the part of the absent parent and no agreement, the CSA will have the jurisdiction to deal with the matter. Unfortunately this excludes the vast majority of cases from the court’s jurisdiction.

In delivering his judgment in this case Mr Justice Charles found that there had been inconsistences in the father’s account of his ownership of the company shares.  The father’s financial position was described as being “in a state of transition” and his future income therefore uncertain.  His current disclosed income indicated that he would have to meet maintenance payments by using his capital reserves.

So why were payments ordered out of the father’s available capital of £130,000? This was largely due to the uncertainty of the financial positions of both parties and the fact that there would only be clarity as to their positions in the long-term. In the meantime, even though an increased maintenance order would mean the father eating into his capital, this was considered preferable to reducingpayments to Luc: the interests of the child were paramount.   In this instance the issue of maintenance will be subject to future review in light of any future capital gains or increase in income.

Balance of fairness

I believe that the most crucial point to emerge from this judgment is the alteration of the balance of fairness between the parents. The balance had previously been tipped in favour of the father, insofar as he was able to conceal income and assets and the onus was on the mother to uncover any facts that would entitle her to a higher level of maintenance for their son.

As a result of this decision, the balance of fairness seems to have been equalised, as in order for the father to make any application for a reduction in maintenance payments he must provide financial details showing that he cannot afford the current payments  He therefore must disclose information for his own benefit.

The advantage gained by the mother is that she is at the very least able to maintain the higher level of payment awarded in the case. Combined with the order made by the judge for further, regular disclosure in the future by the husband, her son is in a much more certain and strong position as to his future financial wellbeing.

But is this an example of maintenance payment enforcement in the long-term, or an example of a short-term arrangement designed to secure payment just for the time being?

It is clearly not intended that the father carry on making payments out of his capital. However, now that the balance of fairness has been adjusted between the parties the likelihood of being able to enforce maintenance at an appropriate level in the future does seem to be stronger.

The court expecting an absent parent to pay maintenance from capital reserves could be a crucial development. But the circumstances of this case are very particular. It will prove difficult to extend this principle to CSA-assessed cases where the court does not have jurisdiction.So only time will tell as to whether this ruling sets a precedent, or is merely an inventive solution to individual circumstances.

 Lindsey Randall studied at Trinity College, University of Cambridge, for an MA in English before deciding to pursue a career in law. She attended The College of Law in York before going on to study for the Bar at BPP Law School in Leeds. She is a barrister member of the Middle Temple, having been called to the Bar in 2010.Following a brief career in Banking Litigation Lindsey has decided to pursue a career in family law. She has now joined Stowe Family Law LLP .

For example, what if parents reach a private agreement for child maintenance in the context of an overall financial settlement, which is likely better than that which the CSA would award to the receiving parent? Recently a client of mine was startled to discover that even though a generous private agreement had been proposed by the other party, it would be invalidated after 12 months if that party decided to apply to the CSA in a bid to reduce child maintenance payments.

If you have children and are going through divorce or considering it, I recommend that you acquaint yourself with the following rules:

1.            When a court order has been made before 5 April 1993: the court retains jurisdiction. The CSA will only have jurisdiction if the parent with care claims income support.

2.            When a court order has been made between 5 April 1993 and 6 April 2002: the court retains jurisdiction unless the parent with care claims income support, or the court discharges the order.

3.            When a court order has been made after 6 April 2002: the court has jurisdiction for agreements reached between the parties. Once the order has been in place for more than 12 months, however, either party can apply to the CSA after giving two months’ notice to the other party. The CSA will then take over and assess child maintenance. The parts of the court order relating to child maintenance “fall away” and will never be reinstated, even if those parts of the court order had provided for child maintenance beyond the CSA statutory provision.

4.            When there is no court order: in those circumstances, there would be no Court jurisdiction unless the parties agree or the CSA does not have jurisdiction, for example step parents. The CSA has jurisdiction.

As an example of the third and largest category, let’s take a couple who, upon divorce, settle their financial arrangements. The parent with care secures capital, pension, income or agrees to a clean break on favourable child maintenance terms (in excess of the CSA formula, perhaps, or ignoring any overnight staying contact for the purposes of deduction of child maintenance). All is well.

Twelve months later, the parent who pays child maintenance applies to the CSA to undertake an assessment. To the horror of the parent with care, the child maintenance payments are reduced. All the good intentions and the work done to achieve the global settlement are completely undone.

Can the parent with care do anything to prevent this from happening?

Any agreement that seeks to exclude a parent’s rights to apply to the CSA is void. However, as my client was delighted to discover, there is an often overlooked way for those looking to create an arrangement to minimise the impact of the CSA…

A solution in contract

The parties can “protect” themselves from the CSA if they set up payments by means of a contractual agreement. To put such an arrangement in place will usually require all of the following:

1.            A recital in the preamble of the order setting out the party’s intention

2.            Provision for child maintenance in the order itself

3.            A separate child maintenance agreement (“the contract”) setting out the obligation to pay.

The contract is designed to create a “compensatory debt”, to equal any advantage secured by either party on application to the CSA.

The contract can also be used to provide for a minimum child maintenance payment (for example if a substantial lump sum has been paid instead, or in situations where one party is concerned that the work or income of the payer is likely to be reduced or purposely depressed).

It’s flexible

With a contractual agreement, parties can reach child maintenance agreements, safe in the knowledge that they have contractual claims against their former spouse if the CSA becomes involved and assessment of maintenance falls below the original agreement.

It’s enforceable

If necessary, the same remedies are available as for breach of contract, including damages, judgment summons and potentially even bankruptcy.

In one case in which I was recently involved, we went one better. We secured provision in the order so that if the payer defaults, the final order can then be set aside in full, thereby reopening the receiving party’s matrimonial claims in their entirety.

If you are struggling with the conflicting and often contradictory jurisdictions of the court and the Child Support Agency, and you want to make provision to minimise the impact and uncertainty of the CSA, I suggest that you consider a contractual solution. It won’t work for everyone – but it may work for you.

James Thornton is a lawyer mediator at Stowe Family Law Settlements and a partner at Stowe Family Law’s Harrogate office. With 15 years’ experience, James’ specialisms include dealing with the financial issues arising from divorce, particularly when substantial personal, business or pension assets are involved. His expertise also extends to cases involving children. A former member of the Law Society’s Family Panel, James is an Accredited Specialist member of lawyers’ organisation Resolution, sits on the North and West Yorkshire Resolution committee and is a member of the West Yorkshire Family Justice Council.

Rachel Baul

My previous posts about the Child Support Agency and its replacement, C-MEC, drew a number of pointed comments and questions from readers. Thank you to everyone who got in touch.

I would like to emphasise that every case is different and my responses are not intended as substitutes for tailored legal advice. If there are question marks over your case, you should consult a solicitor. However, I very much hope that my answers may be of benefit to questioners and others.

Question: I have recently received the assessment from the CSA. My son’s father has to pay £5 a week – he has lied about his income, and is self employed. He is actually a very successful TV producer who earns at least £50k a year. What can I do to question this? It’s a disgrace and unjust. It reflects a serious loophole in the system and I want to fight it all the way – not just for my son but for other children and their mums. Any advice would be gratefully received.

Rachel says: If you can demonstrate his income, either through paperwork such as proof of contracts or by his standard of living (this may require a private investigator), you can apply to a CSA team that specialises in working out payment calculations for those whose incomes are not easy to ascertain. Unfortunately, when a person’s income is largely cash or fluctuates heavily, it is always difficult to prove that the actual income is greater than the amount disclosed by that person.

I seem to be having a lot of trouble with the CSA the moment. I had my first call from them on September the 20th. They asked me if I would like to complete the application there and then, or have the forms posted out. I explained I was at work so I would like them posted out to me. When my ex partner left the family home months prior to this conversation, she had her mail redirected to her new home. Unfortunately, a lot of my mail was redirected too so I never got the forms.

I had another call from the CSA on the 13th October. I agreed to complete the application on the phone and was informed that payments would be effective from the 13th October. I was advised by the case worker to put some money aside to cover the next two weekly payments of October. I received several letters confirming that the effective date is the 13th but whilst on the telephone with them today, they said it was their mistake and the effective date is 20th September. They have informed me that they will take 40% of my monthly salary until I catch up.

Rachel says: Whenever an assessment is made, it is backdated to the date of the application. Therefore the non-resident parent may end up paying considerably more than 25 per cent of their net salary.

Payment of arrears is compulsory, but there is one course of action available to you. You can ring the CSA and apply to pay the arrears over a longer period of time. Note that this has to be agreed with them direct.  Usually, they seek to recoup arrears within 12 months. However, if the arrears stretch across a period of time that is in excess of 12 months, you may wish to arrange to repay over 2 years or more. See below for more details.

I have recently been contacted by the CSA and asked to pay for my two children. I had been offering my partner 20% of my net salary for weeks but she continued to refuse it because she was convinced that she would get 20% of my gross salary. The CSA have now told me how much I have to pay and they are refusing to take my student loan into consideration. I believe this is unfair because I incurred this debt whilst I was with my partner and after my children were born. Before I graduated, I was unemployed and was earning nothing. Had I not taken the student loan, I would not be in a position to pay the amount that I am able to at the current time.

The family home was signed over to me recently and I will struggle to make the payments and pay – what is in effect – more than 20% of my salary. The response from the CSA was “Tell the student loan body that you can no longer pay them”. My student loan is taken directly from my salary.

Could you please tell me if my student loan should be considered?

Rachel says: I’m afraid that your student loan is not considered when calculating CSA payments. However, you may be eligible for a variation of maintenance (as described above).

Eligibility is centred upon factors that you believe should be taken into account. These can include student loans and/or other deductions at source, or if you are self employed and have lost a contract or source of income since the last tax year.

You can apply for a variation of the maintenance through the CSA by applying with evidence of the factors that you would like to be taken into consideration.  Since October 2008 you have been able to enter into a private agreement and opt out of the CSA.  The CSA is becoming more flexible  – but unfortunately, this is at their discretion and they are not compelled to take these factors into consideration.

When my son was born I had no reason to question whether or not I was the father until some time later when an affair was uncovered. My (now) ex-partner never allowed me to be put on the birth certificate, nor does my son have my last name. He was told not to call me “daddy” and I have no parental rights. My ex says I will only ever get them “over her dead body”. Lastly and this may have just been out of spite when the relationship ended, but she once said to me, “How does it feel to pay for another man’s child?”

I reported this to the CSA whose response was to call my ex and ask her if I am the father. She obviously said I was and in the eyes of the CSA my claim was unfounded.

Now the CSA say I need to apply for a section 20 in court to get a DNA test carried out, but that’s all the information they will give me. Do you have any advice for people in my situation who have signed the form saying they where the father but later have had doubts and would like to clarify the situation?

Rachel says: One particularly tragic circumstance, which has cropped up on the comments section more than once, is when a father accepts the CSA calculation and begins paying out, only to discover at a later date that he may not be the biological father of a child.

When first contacted by the CSA, a non-resident father is offered the opportunity to take a paternity test.  The non-resident parent pays for the test and if he is shown not to be the father, he is reimbursed.  If the test is refused and a person wishes to contest at a later date, there will be no such reimbursement. When a paternity test is taken at a later date, the parent must apply through the magistrates’ courts for a declaration of non-parentage and to obtain a paternity test from a specialist firm.  We are able to assist with this somewhat complex procedure and liaise with the CSA to ensure that matters are resolved.

It is important to note that the CSA does not refund child maintenance that has already been paid prior to contesting parentage.

Also, even if a person is not the biological parent of a child, they are able to apply for contact with the child on the basis that they have been a de facto parent. We can assist a step-parent or equivalent in applying for contact with the children of their ex-spouse or ex-partner.

Will I receive more maintenance if my child is disabled?

Rachel says: No. The CSA uses a flat rate calculator and does not factor in special educational or care needs.  We have been asked if, in such circumstances, the court can order a top-up of maintenance. Unfortunately, this is not a case unless the non-resident parent has a net income in excess of £2,000 per week.

However, the resident parent can make an application through the courts in respect of provision of accommodation, capital and school fees where appropriate.

Your site contains a wealth of detailed information, especially your reference to the Child Maintenance and Enforcement Commission (CMEC) and I would be grateful to receive clarification of reported implementation dates for revised legislation detailed hereunder:

• CMEC will operate on the percentage based scheme as seen in CS2 rules but income of the NRP will be taken from the latest available tax information.

• Child maintenance will be calculated on the gross income of the NRP.

• Percentage rates will be set at 12% for one child 16% for two children and 19% for three or more children.

• Increase the capping of income from £2000 pw to £3000 pw

• One year fixed term payment schedules will be imposed, with variations to maintenance payable allowed only if a minimum 25% change of income is reported.

Rachel says: There has been a great deal of interest in what the CSA will charge going forward. Unfortunately, at the time of writing we are still awaiting confirmation from CMEC or the CSA as to what percentage of income will be used to calculate maintenance in the future. We will keep you posted…

Finally, a note on appeals:

I have been charged arrears and the CSA cannot provide a breakdown of these arrears. What can I do? I’m still having to pay, although I know for a fact I do not owe them. This is on top of what I already pay – in total, £320 out of £1000 a month

Rachel says: An appeal must be made within 1 month of the CSA’s decision, if it is received outside of the time limit then the appeal may be disregarded.  The CSA produce a leaflet detailing how to appeal and this includes an appeal application form.  However, when considering an appeal consider whether you are appealing the calculation or the timeframe over which this has to be paid.  A risk of appeal is that the calculation may go up as well as down.

Upon receiving a valid appeal the CSA will contact you to try and resolve matters, if it is not resolved a submission is made by the CSA to the appeals tribunal.  This includes all of the information that the CSA used to make their decision and all documents and information provided with the appeal application.  This can be a long process and you are required to pay the assessed rate of child maintenance throughout.

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.

In addition to my day to day work, I was invited to appear on BBC 1′s The One Show, to discuss the imminent introduction of the Child Maintenance and Enforcement Commission (CMEC). It is set to take over from the much-loathed Child Support Agency. However, as I have noted in previous posts about the CSA, there are already question marks over this replacement organisation’s fitness for purpose.

I note that on The One Show’s blog, the topic has already attracted almost 300 comments from viewers. Frankly, I’m not surprised. For many of those who have encountered the old CSA – be they parents, children or legal professionals – feelings about this deeply flawed  organisation run high.  Click below to see the item.

Readers who seek further information about CMEC may wish to read Rachel Baul‘s recent guest post: From the CSA to CMEC: 10 Things That You Should Know.

On Monday I appeared on BBC Radio 4′s Law in Action programme, along with David Lister from Mishcon de Reya, to discuss the impending divorce between Madonna and Guy Ritchie.

On air, I was at pains to point out that these big celebrity cases can give the impression that divorce is always “an absolute nightmare” – when the truth is that the process can be far less painful.

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.

A guest post by Rachel Baul of Stowe Family Law.

Many lawyers are sceptical that C-MEC can provide effective solutions to the CSA’s shortcomings.

Further to my last guest post, which answered some common questions about the CSA, here are ten things that you should know about the changes currently in hand.

The CSA is currently undergoing huge revisions. Later this year it will be phased out and replaced by C-MEC (Child Maintenance and Enforcement Commission).  All cases should have been transferred to C-MEC by the end of 2011. C-MEC will become fully operational from 2013-2014.

C-MEC aims to simplify and streamline assessments, and improve the collection process. A number of changes are planned, and he most significant of these are as follows:

1. The way that maintenance is calculated is set to change. As of 27 October 2008, parents can choose to opt out of the CSA by reaching agreement between themselves.  The CSA has set up a team to assist parents in coming to a written agreement. Please note that this agreement is not legally binding. If it fails, parties will have to apply to the CSA for an enforceable agreement. This new option will apply both to new cases, and to existing cases and arrangements.
2. It will no longer be compulsory for a parent on benefits to apply to the CSA.
3. A parent in receipt of benefits will be able to retain a greater amount of the child maintenance paid through the CSA: £20 per week instead of £10.  However the Child Maintenance Bonus for parents in receipt of maintenance returning to work will end from 26 November 2008.
4. From April 2010 money parents receive in child maintenance payments will not be taken into account when calculating that parent’s out-of-work benefits or Housing and Council Tax benefits.
5. C-MEC will differ from the CSA in that it will use gross income rather than net income (“take-home pay|) to determine CSA liability. The details have yet to be confirmed, but the change could mean there will no longer be an allowance made for large pension contributions – which were previously deducted from the “net” calculation. The formula for maintenance is expected to change from net to gross in 2011.
6. The flat rate of maintenance will increase for those earning less than £200 net per week, from £5 per week to £7.
7. C-MEC will have greater powers of enforcement. These will include deducting child maintenance directly from the non-resident parent’s bank accounts, and -confiscating passports, curfews and powers to negotiate repayment, or to reclaim payment from the estate of a deceased parent.  C-MEC also will have greater powers to enforce its decisions without the need to apply to court.
8. The rules governing the payment of maintenance arrears are to be changed. They will affect the processes and procedures that are followed when the agency seeks to enforce the payment of maintenance, and the changes are intended to increase effectiveness and efficiency. Again, the details have yet to be confirmed.
9. A change to enforcement will mean that in a large percentage of cases, C-MEC will no longer need to apply to the court to take enforcement action against a non-resident parent who refuses to pay. The new procedure is more streamlined, and purely administrative.
10. Many lawyers – myself included – are sceptical that C-MEC can provide effective solutions to the CSA’s many shortcomings. To date there is a lack of clarity in exactly what formula will be used to calculate maintenance and how, if at all C-MEC will be more efficient that the CSA.  It has been reported that in order to make the necessary savings and increase effectiveness up to 43% of the current case load will have to be scrapped. There is also controversy about a proposed scheme to “name and shame” parents who do not pay maintenance. It has been viewed by many parents’ rights groups as a mere continuation of a flawed system.

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.

Solicitor 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.

The breakdown of a relationship is never easy, but the involvement of children can make a difficult break-up emotionally and financially gut-wrenching.

Not every couple will need the Child Support Agency’s help – many come to amicable agreements that work well and support the best interests of the child – but in the absence of an agreement the CSA is arguably the easiest and cheapest way to ensure that child maintenance is paid.

You can ask your lawyer to pre-empt the CSA when preparing a financial settlement upon divorce, by taking into account whether it is appropriate to combine spousal and child maintenance into a global figure. This can then be enforced even if an application to the CSA is later made by the non-resident parent.

This is certainly an avenue to pursue given the CSA’s reputation, with those using the service complaining of serious difficulties. Frequently it appears that there is no uniformity of advice. Phoning 3 different departments can result in 3 different answers to the same question.

Given the administrative problems at the CSA, and the emotional pressure involved, I am often asked to advise people on how to deal with the agency. I have listed some of the most common questions, along with my advice, below.

When can I apply?

Unless you have a child maintenance agreement from before 1991, or a court order dated pre-March 2003 then you fall within the remit of the CSA.

Either party can apply to the CSA for a maintenance calculation, except when there is a court order in place from after March 2003. In these cases the CSA is excluded for 12 months, after which time either parent can opt out of the order and apply for a CSA assessment.

The CSA’s calculations are based on the income of each party, with the assessment having a maximum ceiling of £104,000 take home pay per annum. If either party wishes to have income above this level taken into account, they are able to apply for additional “top up” maintenance through the courts.

What if both parents spend an equal amount of time with the child?

If there is a joint residency agreement in force, the parent in receipt of child benefits is deemed to be the resident parent and can apply for CSA maintenance from the other parent. If the child’s time is divided equally between both parents, the maintenance to be paid by the parent who is not in receipt of child benefits is calculated at the standard rate, but with a discount of 3/7ths. (This is the rate of discount when a child stays overnight with a non-resident parent for between 156 and 207 nights per annum.)

If there are two children, it may be that the parents agree to split the child benefits. If each parent is in receipt of benefits for one child then in theory, parents can make cross-applications – although in practice, most parents simply do not claim in these circumstances.

Does the CSA cover children living abroad or from other marriages?

The CSA can act when the non-resident parent resides in the UK. There are also reciprocal agreements with other child support agencies around the world, including Australia.

It is important to note that the CSA only has jurisdiction over the natural or adopted children of a relationship and cannot deal with, for example, step-children where the step-father has taken financial responsibility for the child during the relationship.  However, the court has the power to make maintenance orders in respect of these “children of the family”.

How much must non-resident parents pay?

CSA maintenance is calculated based upon the net income of the non-resident parent. That is to say, income after deductions of tax, national insurance, student loan and pension contributions.

There are 3 bands of child support.  For those on a weekly income of less than £100 per week, or who are on benefits, there is a £5 flat rate.  Those with an income of £100 – £200 per week will pay the flat rate for the first £100 then a proportion of their income for the next £100.

The majority of claims will fall into the standard rate category, which covers any non-resident parent with a net income of between £200 and £2,000 per week. The formula is somewhat simplistic: 15% for one child; 20% for two children; 25% for three or more children.

There is provision for a reduced payment to be made if the non-resident parent is responsible for the children over night more than 52 nights per year, on a sliding scale that starts at 1/7^th discount of the weekly payment. Non-resident parents can also deduct a small amount of up to £15 per week for special expenses such as travel.

The CSA will also take into account any other child living with the non-resident parent for which they have financial responsibility.

What if the non-resident parent earns more than £2,000 net per week?

The Children Act makes provision for special top-up payments to be awarded where the non-resident parent has an income above this level. This can take the form of increased maintenance levels or paying for school fees, nursery fees or other extras.

As any top-up payment needs to be pursued in the courts, without support from the CSA, this effectively means there is a two tier system, forcing a resident parent to reapply to the court to enforce the increased maintenance demand.

What if they won’t pay?

In the same way as PAYE tax works, the CSA has the power to deduct from the non-resident parent’s wages at source to ensure payment. The agency also has the power to confiscate passports and driving licences as well as various enforcement and penal actions it has at its disposal.

The CSA has been heavily criticised for a lack of clout when it comes to self employed parents where income dries up, or when funds are diverted to a partner’s or business account. Equally vocal have been the critics who point to the laborious process of appealing a CSA assessment, which is felt to be too low to support the child’s expected lifestyle.

Arrears are deducted as additional payments along with future child maintenance payments (in the same way that overpayments of benefits are deducted at source from future income and benefits).

In situations where there is a delay in the CSA making a ruling, or there is a prolonged investigation into the true financial picture, the payments will be backdated to the date of the application and arrears will be included into the monthly payments to be repaid over the next year.

In other words, for non-resident parents it’s extremely important to respond promptly to CSA notifications and provides any information requested as soon as possible – you’ll have to pay eventually.

What if I don’t think I am the father?

If the CSA contacts you about a child, but you do not believe you are the father you have the option to request a paternity test. The CSA requires that you pay for the DNA test in the first instance, but if the results of test show that you are not the father the CSA will reimburse the expense.

If your name is on a birth certificate, you were married to the mother at the time the child was born or if you refuse the offer of a DNA test, the CSA will assume you are the father. This is why it’s extremely important to not ignore the agency’s requests.

For those fathers who do resort to a DNA test, ensure that you have the test carried out by a recognised DNA laboratory such as CELLMARK or the CSA may reject the test results as invalid.

When should you seek legal advice?

Liaising with the CSA can be a time consuming and fraught process and at Stowe Family Law we’re happy to communicate with them on your behalf.

If you are contesting an allegation of paternity we can assist in arranging a DNA test and advise you on your options dependant upon the outcome.

However, more important is what to do if you are a resident parent and you believe you are entitled to a top-up payment. This is a court process; we can advise you and pursue your application on your behalf.

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.

Image credit: roblisameehan.

The law needs changing – the Government must do more than tinker at the edges

Although I believe that the increased number of unmarried couples has created problems that are not covered with existing legislation, I was startled to learn that the Government has unveiled proposals to make unmarried mothers declare their children’s fathers on birth certificates.

At present, only children born to married couples must have a father’s name entered on their birth certificates. When a mother and father are not married, the naming is at the mother’s discretion. Every year nearly 50,000 babies – seven per cent of the total – are “sole-registered”, with only the mother’s name on their certificate.

The new proposals are described by The Daily Telegraph as follows:

Mothers will be forced to name their child’s father on birth certificates for the first time under Government plans which will improve collection of child maintenance from absent fathers.

The 45,000 mothers who leave the father’s name blank when registering a birth each year will have to identify him unless they can prove it is “impossible, impractical or unreasonable” to do so.

Once a name is given, the potential father will be contacted and ordered to register or submit to a paternity test. If a DNA test is positive, the man’s name will be recorded on the child’s birth records.

Fathers who deny paternity, but do not undertake a DNA test, will face potential fines.

Speaking as a family lawyer, I’m less than impressed. As I’ve noted previously, the Child Support Agency is unfit for purpose and has left millions of devastated people in its wake. These new proposals appear to be clumsy attempts to “patch” its failings, rather than to address the wider problems that continue to exercise a stranglehold upon that blighted organisation.

The plans are also a clumsy attempt to raise revenue via the CSA from named fathers. How exactly women will be compelled to disclose the name of the father is one obvious stumbling point. They fail to address the highly complex situation where – with the mother’s support – the father does not wish to acknowledge parental responsibility.

In my opinion, they are a smokescreen for the inadequate legal remedies that are currently available to unmarried parents. Marriage provides a safe and secure framework to support children. However, when couples simply live together or have children and are not married, the law is glaringly deficient.

The Government needs to stop tinkering at the edges and to bring forward laws that tackle the unnecessary challenges faced by unmarried couples.

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.

When I was a pupil at Leeds Girls’ High School, (how many years ago?!!!) each week we had to learn some Shakespeare by heart. The meaning of what we learned was never explained beforehand, and we had to work it out for ourselves. The following day we had to take turns to recite it from memory, with all the meaning we had attributed to it. This was quite difficult to do, but one speech fascinated me more than the others. I have never forgotten learning Portia’s role as the male lawyer in the Merchant of Venice, and her words about the “quality of mercy” in the law. This famous speech argues that there is room for moral obligations within the law’s confines.

I think Portia fashioned my own approach to the law, and fired up my enthusiasm for becoming a lawyer. I liked her clever arguments. I liked her understanding of justice because it is mine too.  “Justice” can often mean something completely different to two people caught up on opposing sides of the same case. Justice is about more than administration; it is about tempering the application of law with mercy, to bring about the right result. This is how the law is applied within the English legal system, in both the civil and criminal courts. It is a system within which I have been privileged to work, and I love it.

However, reading The Times about the new reforms to the Child Support Agency, I wondered for the umpteenth time when the principles of mercy and justice will come into play.

To date, they have been lacking from a system that is administrative, rather than judicial. I believe that if mercy and justice were applied on a judicial basis, and discretion was introduced to make the system more flexible, the CSA would flourish.

I was one of the first appointed Chairs of the Child Support Appeals Tribunal, hearing appeals against CSA assessments. I held judicial office – but quickly discovered that I had no judicial discretion. Even if a decision was plainly unfair to anyone with a modicum of common sense, I couldn’t find it to be legally unfair.  In effect, all I was empowered to do was correct any errors in the computation. I then had to complete a complex decision statement explaining why I had upheld the assessment, or directed it to be “re-determined” (sent back again for yet further complicated computer calculations).

This was not my understanding of the administration of justice. I could not, in all conscience, be part of a purely administrative system of law. So, I resigned.

I watched from the sidelines as – predictably – the system tumbled into ruins. Millions of devastated people were left behind in its wake. I watched again as a revised system went exactly the same way, costing all us taxpayers billions into the bargain.

The relatively untrained and inexperienced CSA staff, who had to try and make sense of this mess, had my sympathy. I knew it was an impossible task for anybody other than trained family lawyers and family judges, because child maintenance is part of their everyday workload. I watched, horrified, as crooks who played the system and bamboozled CSA employees got away scot free. Meanwhile naïve and trusting parents and children, desperate for money, were ignored. Where did the justice go?

Now the  CSA is to be re-branded and the ridiculously titled “Child Maintenance and Enforcement Commission” (C-MEC) will be the third attempt to get it right. Sorry to say, I haven’t the slightest confidence that it will.

I’m not the only one. Patrick Parkinson, who designed the Australian model of the CSA, has said we are having a “nervous breakdown” with this third system and has pointed out further pitfalls.

So I ask again: why not return the CSA’s duties to the professionals who do every other part of the job in family law? Give them a system that is cost-friendly and incorporates discretion.  Let the real professionals get stuck into the problem.

If justice could be applied as it should be – to rein in those who hope to “get away with it” and alleviate the hardships of those who are suffering – I am certain that strong, positive results could be achieved.

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.