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 1/7th 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, I recommend that you contact the National Association for Child Support Action: a hardworking organisation that can provide ongoing assistance, advice and support.