Just how much child maintenance a non-resident parent should pay is an complex and emotive subject. Over the 20 years of its existence, the Child Support Agency (CSA) earned a reputation, amongst other things, for heavy-handed inflexibility in its pursuit of separated and divorced fathers. Some of these complaints were justified. As recently as October last year, it was found guilty of “obnoxious” and “unreasonable” legal failings.
Set against failures, however, are the thousands of women in genuine need who are still chasing their children’s fathers for reasonable maintenance, or even a penny of payment. They see their former partners running rings around a sluggish system.
Of course many non-resident parents care deeply for their children and live for every moment of contact. But some do not and the payment of court-ordered maintenance may be more or less the only form of parenting practiced by the latter group – remote, wrapped up in careers or new relationships, or simply self-absorbed.
Child maintenance payments are calculated according to a defined formula during divorce proceedings. Judges start with specific percentages of the non-resident parent’s income, from 15 per cent for one child to 25 per cent for three or more children and these are then adjusted according to circumstances. For example, a deduction will generally be made for the time the children spend with the non-resident parent.
But what happens if the non-resident is self-employed and does not earn a fixed income? This has been some uncertainty surrounding this complex question, one discussed by barrister Byron James on Family Law Week.
He examines the implications of a case we have already discussed on this blog – Gray v Secretary of State for Works & Pensions. This concerned a self-employed handyman called Trevor Gray who declared a weekly income of £151.37 to HMRC. However, a tribunal later ruled that he actually had an annual income of £18,300.
Mr Gray argued that the courts should accept the figures he had submitted to HMRC but his appeal was unsuccessful. Lord Justice Ward ruled that child support officers were under no obligation to restrict themselves to submitted figures when calculating child maintenance liability.
According to Mr James, the case throws an important light on the powers held by child support officers.
“This has potentially very significant consequences and arguably places upon child support officers a function that they are not necessarily in a position to properly conduct…the process of analysing lifestyle and income is not always straightforward for the court, and that is with a great deal more resource and time.”
In addition, there is a real danger, he claims, that child support officers will now be flooded with applications for income assessment by parents. Some parents will no doubt see an independent assessment of their ability to pay as desirable.
Could this, wonders Mr James, be “the pressure on the system that leads to it finally breaking down?”
The last thing our overstretched court system needs right now is a further drain on its time and resources. But, sadly, I can see this happening.