A just and equitable child support variation

Children|August 18th 2015

Sometimes one can become so bogged down in the detail that one loses sight of the bigger picture. So it can very easily be with the child support system. The system is so complex that it is all too easy to get lost in those complexities and forget just what the system is there to do. It is there, in its simplest terms, to ensure that where a child’s parents separate, they both make a reasonable contribution towards the child’s financial needs. The system isn’t perfect (far from it), but that essentially is what it is about.

All of this is well demonstrated by the latest reported child support decision I have come across – NT v Secretary of State for Work and Pensions (CSM) (Child support : variation/departure directions: other). As we shall see, I will myself avoid most of the complexities when summarising the case, so as to ensure that the bigger picture remains firmly in view.

The case, as its name suggests, is once again about a child support variation, but before I go any further I should explain one of those complexities. As regular readers may be aware, I have previously written a post here on the subject of child support variations. As I perhaps didn’t explain well enough in that post, the post’s contents were concerned with the 2012 child maintenance scheme, which is the current scheme.

To take a step back for those who don’t know, the child maintenance system has been constantly tinkered with since its inception, with the result that there are three separate child maintenance schemes: the 1993 scheme, the 2003 scheme and the 2012 scheme. Unfortunately, it has been too complex and/or costly to transfer all existing cases on to each new scheme as it has come in, so all three schemes continue to run alongside one another, although it is expected (hoped?) that around 2017/18 all cases will go over to the 2012 scheme.

As I indicated above, each scheme has its own system of variations, where one or other of the parents can ask for the amount of child maintenance to be adjusted from the figure calculated by reference to the child support formula, on the basis of certain factors. The 1993 scheme actually didn’t use the term ‘variation’, but rather called them ‘departure directions’, to signify that they involved departures from the formula. The 2012 scheme kept the 2003 terminology of ‘variations’, but simplified the system somewhat.

NT v Secretary of State for Work and Pensions was concerned with the 2003 scheme.

So, having cleared that up, what was the case about? Well, it began in 2007 when the father, the non-resident parent, was required to pay child support for his two children at the rate of £31 per week. However, in 2012 the mother applied for an upward variation, on the basis that she believed that the father had assets of at least one million pounds in property, or from the proceeds of sale of the former matrimonial home. On the basis of this, and without any information from the father (who did not know about the mother’s application because he had failed to inform the Child Support Agency of his new address), the amount that the father was required to pay was increased to £342 per week.

The father appealed, providing rather more evidence as to his circumstances. Using that evidence, the First-tier Tribunal calculated that the father’s assets were a rather more modest £375,685. On that basis, the amount of child support he was required to pay was reduced to £144 per week. Still not satisfied, the father appealed, to the Upper Tribunal.

Now, at this point I’m going to ‘bail out’ of explaining the complexities of variations under the 2003 scheme. Hopefully, that scheme will have gone the way of the Dodo in a couple of years’ time, so it seems fairly pointless expending effort explaining it. Suffice to say that the Upper Tribunal judge set aside the First-tier Tribunal decision, but substituted his own decision to the same effect. In other words, the appeal was unsuccessful.

What I do want to mention, however, is some of the words of the Upper Tribunal judge towards the end of his decision, where he alluded to the bigger picture. He said:

“…the purpose of the Child Support Act 1991 is to ensure that parents who do not live with their children pay appropriate amounts for their support … Generally, the Act and regulations have regard only to income, but [the regulation concerning variation on the basis of assets] permits regard to be had to assets … presumably on the basis that a parent with such assets can be expected to provide income for the support of his or her children out of the assets.”

He concluded:

“The simple point in this case is that the father had a share in the equity of property (excluding his home) and that share was worth some £375,000 … He was being asked only to pay £144 pw (a figure based on his other income as well as those assets), which is only £7,488 pa and therefore less than 2% of the value of his relevant assets. I can see no reason why it would not be just and equitable for him to pay that sum; he could plainly raise it if he was minded to do so. On the contrary, it is clearly just and equitable for a variation to be made so that he must support his children at a realistic rate.”

And that, I think, sums it up very nicely: child support is about each parent making a reasonable contribution towards the child’s financial needs.

The full report of the case can be read here.

Photo by Mathew Wilson via Flickr

Author: Stowe Family Law

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