Child Maintenance

Under the laws relating to child support, the court is not able to make an order for child maintenance other than by consent (agreement). Orders by consent are only binding for one year, after which point either parent can apply to have the amount reassessed.

If you and the child’s other parent cannot agree on the appropriate level of child support, the parent who lives with the child or children can apply to the Child Maintenance Service. A fee may be payable.

The process for determining how much the non-resident parent should be paying as child support has four levels:

• Nil Rate: The paying parent does not have to pay maintenance because they are either a student, a child aged 16 or under or in full-time education (A levels only) up to age 20, a prisoner, in work-based training, live in a care home or hospital and get help with the fees, are 16-17 years old and they or their partner get certain benefits.
• Flat Rate: This is £5 per week and is used if the paying parent’s income is below £100 and they don’t qualify for the nil rate. It’s also used if the paying parent is in receipt of certain benefits.
• Reduced Rate: This is used if the paying parent earns between £101 and £199.99. It is the flat rate of £5 plus a percentage of their income.
• Basic Rate: Calculated as a percentage of the paying parent’s gross income, depending on the amount of income up to a maximum level of £3,000 per week. If the paying parent earns more than this a top-up order can be made by the court.

The court has power (within divorce proceedings) to make maintenance orders for children, where the child maintenance service is unable to.

Other Financial Arrangements for Children

Where the parents of a child are married or are civil partners, the courts have the power to order the transfer of property to a child or to order the payment of a lump sum of money to a child within divorce or dissolution proceedings. Your family lawyer can advise you on whether an application under this provision may be appropriate in your case.

Under Schedule 1 to the Children Act 1989, a parent, step-parent, guardian, special guardian or person with a residence order may be able to apply to the court for other financial provision for a child, usually from that child’s other parent. In some cases, it may be appropriate for the application to be made by the child themselves (see below).

Often, this law is used for one parent to make an application against the other when they have not been married or civil partners. In these circumstances, the court does not have the wider powers it has on divorce or dissolution of a civil partnership to make financial orders that consider the children’s needs outside of day-to-day maintenance that would be dealt with by the Child Maintenance Service or Child Support Agency. Your family lawyer can advise you on whether an application under this provision may be appropriate in your case.

What Order Can the Court Make Under Schedule 1 To the Children Act 1989?

The court can order:

• A lump sum or sums to be paid, at once or in instalments, by one parent to the other, eg to reimburse expenses connected with the birth and to meet future expenses such as the purchase of a family car or to pay school fees, with no limit on the number of lump-sum applications that can be made.
• That a property should be transferred or held in trust for the benefit of a child until a certain event occurs, eg the child reaching the age of 18 or completing full-time secondary or university education when the property will either be transferred back to the payer or sold and the proceeds are given back to the payer.
• Regular payments of child maintenance where: the non-resident parent’s income is higher than the limit where the Child Support Agency/Child Maintenance Service deals with maintenance, in respect of educational expenses, or for expenses connected with a child’s disability.

The court can also make interim orders for child maintenance while the main application is being dealt with. Regular payments of child maintenance may, in some circumstances, include an element of ‘carer’s allowance’ for the parent with whom the child lives. The duration of the maintenance order is fixed by the court.

Where an application concerns property, consideration may also be given to a separate application.

See our client guide: Cohabitant claims under the Trusts of Land and Appointment of Trustees Act 1996. Your family lawyer will be able to provide specific advice in relation to this.

Can A Child Apply?

If a child is receiving or is intending to receive, instruction at an educational establishment or training, or if there are special circumstances such as a disability or illness, and the parents do not live together, a child over 18 can apply to the court for maintenance or a lump sum from one or both parents.

What Is the Procedure?

The person applying for an order from the court is called the applicant, and the other person is the respondent.

The applicant will complete a court form that is sent to the court and then sent to the respondent, who must let the court know it has been received. After that, a court date is set and both the applicant and respondent have to complete a financial disclosure form (a Form E1) setting out all of their financial circumstances.

How Does the Court Decide?

When deciding what order to make, the court will consider:

• The income, earning capacity, property and other financial resources that each of the parents has or is likely to have in the foreseeable future.
• The financial needs, obligations and responsibilities that each parent has or is likely to have in the future.
• The financial needs of the child.
• The income, earning capacity (if any), property and other financial resources of the child.
• Any physical or mental disability of the child.
• The manner in which the child was being or is expected to be educated or trained.

There are certain additional considerations if the person whom the application is against is not the child’s other biological parent. It is also worth remembering that the judge has a wide discretion depending on the circumstances of the case and the level of orders can be difficult to predict.

For more information on child maintenance and other financial arrangements for children, please get in touch. Our Family Law team at Best Solicitors have vast experience in these cases and will be able to advise you further. We currently work with clients generally throughout Sheffield and Barnsley, as well as other locations in South Yorkshire and the surrounding areas.