BENCHMARKS

Figuring out how child support works

District Judge Roger Bird listens in to a conversation between a client and a solicitor to gauge reaction to new child support calculations

The new system for child support calculations came into force on 3 March.

What difference is it going to make in practice? What are the lessons which the practitioner should take on board? To put it into context, we listen in to a conversation between an anxious male client (AC) and a harassed solicitor (HS).

AC: I have heard about this new scheme for child support.

Is it actually going to affect me? I read somewhere that if you got a court order in time you could opt out of it.

HS: Yes, if you got it in time.

If the court made an order for child maintenance before 3 March - which could only have been done by consent - this did indeed prevent the Child Support Agency (CSA) from assuming jurisdiction unless the parent with care was claiming benefits.

So, if you had obtained an order before that date it would have continued to be variable by the court only and not the CSA.

However, in your case you missed the bus and as there is not yet an order, the CSA will have jurisdiction.

AC: Does that mean that only the CSA can deal with child maintenance and that the court cannot even make a consent order?

HS: No, certainly not.

The court retains its power to make a consent order.

The difference now is that the jurisdiction of the CSA is only excluded for one year, after which either parent may ask for a child maintenance calculation.

AC: How about if we got a new order every year, just before the anniversary? That would be a sort of rolling programme to keep the CSA at bay.

HS: In theory, yes.

You could discharge the first order and make a new one each year.

But what would be the point? You would need the consent of the other party and if she were minded to go to the CSA anyway she would not consent.

The position as to whether a mere variation at the instigation of one party without the consent of the other would suffice to keep the CSA at bay is highly contentious.

AC: So the CSA can muck up the carefully calculated package deal that we work out with the aid of our expert advisers? What sort of sense is that if neither of us is receiving benefits?

HS: I could not possibly comment on that - it was the will of Parliament.

The important point is that if you wish to obtain a consent order it makes sense now to ensure that the figures are as near as possible to what the CSA would direct.

That way, the incentive for either parent to go to the CSA would be minimised.

AC (sighs): Oh well, what will I be let in for then?

HS: The short answer is that liability is based on a percentage of the net income of the non-resident parent: 15% for one child, 20% for two, and 25% for three or more.

AC: What about her income, as she is rolling in it now?

HS: Forget it.

The income of the parent with care is not considered.

AC: What! Surely.

HS: I said forget it.

Yours is the only income to be considered.

AC: So, it is a straight percentage; as simple as that.

HS: Up to a point.

The figures I gave you are the standard rate but there are several hurdles to clear before you get there.

I assume you are not a prisoner and your income is more than 5 a week?

AC: Correct.

HS: That is the first hurdle cleared.

Now, if you or your partner is receiving benefit and your partner is a non-resident parent in respect of whom there is a maintenance calculation in force you will have to pay a flat rate only.

No? Then I move on.

If your net income is less than 100 a week there is a flat rate of 5 a week.

AC: No such luck.

HS: Is your net income between 100 and 200 a week? If it is, you will pay at a reduced rate, calculated on a sliding scale.

AC: No, I earn more than that.

HS: Right then, we have got to the standard rate.

The starting point is that you will pay the percentage of your net income I mentioned above, up to a limit on income of 2,000 a week.

AC: Is that an absolute maximum?

HS: For the purposes of the CSA, yes.

But where the net income exceeds 2,000 the parent with care may apply to the court for a top-up and the court would deal with it as a discretionary matter.

AC: What does that mean?

HS: It means that it would have regard to the principles contained in section 25 of the Matrimonial Causes Act 1973 and make such order as seemed just, rather than applying a mathematical formula.

AC: Sounds a better system.

However, I do not earn that much anyway.

But you said 'the starting point'.

I do not understand.

HS: I am afraid there are certain further complications.

Does your partner have any children living with you both?

AC: Yes, but that is no good.

Their father is loaded and is paying her way over the odds in child maintenance.

HS: That does not matter.

All you have to show is that you have such children in your household and you get a deduction from your net income before the CSA takes its percentage from the reduced net income: 15% for one child, 20% for two and 25% for three.

AC: Extraordinary.

HS: Quite.

The other question is do you have your children to stay for contact for more than 51 nights each year?

AC: Yes, that is one thing we could agree.

HS: Well then, you have to do another calculation.

You reduce your total CSA assessment by one seventh if the child stays for 52 to 103 nights, two sevenths if it is 104 to 155 nights, three sevenths if it is 156 to 174 nights, and one half if it is more.

That calculation is done for each child; the total is aggregated and then divided by the number of children.

The total maintenance calculation is then reduced by that figure.

AC (gulps): How will it work? My partner has two children living with us.

I have three children, one of whom stays for 160 nights a year, and two of whom stay for 105 nights in the year.

HS: I have done a quick calculation.

Your net income is 350 a week.

You reduce that by 20% because of your partner's children, so it is now 280 for these purposes.

You ought to pay 25% of that sum, which is 70.

However, that sum is reduced by one third (total seven sevenths, that is 100% divided by three) because of the staying contact, so you end up paying 46.62.

AC: I thought you said this was a simple system.

HS: That is what the government says, and of course it must be right.

District Judge Roger Bird sits at Bristol Combined Court Centre

Clarification

In a recent 'Benchmarks' column (see [2003] 13 February, Gazette, 27) it was stated that there would be automatic transfer to the defendant's home court of a personal injury claim if the defendant filed a defence admitting liability but denying quantum.

We wish to make it clear that automatic transfer would only apply in this situation if the claim were for a specified sum.