I don’t normally like to give publicity to such things, but the fathers’ rights protesters who gate-crashed ITV’s Loose Women programme the other day appeared to be shouting “No kids, no cash!” In other words, if they didn’t get contact with their children, they wouldn’t (or shouldn’t) pay any child support for them.
It’s a hoary old argument that has been wheeled out for many years. However, antiquity does not make it right. There is no quid pro quo between seeing your child and paying for their support, and nor should there be.
The determining factor regarding any issue relating to a parent’s contact with their child is the child’s welfare. The questions are: is it best for the child’s welfare that contact takes place and, if so, how much contact is best for their welfare? What is best for the child’s welfare is determined by looking at all of the circumstances of the case, in particular the seven factors set out in the welfare checklist. Those factors include such matters as the child’s wishes, the child’s needs, and any harm they may be at risk of suffering. Whether the parent seeking contact is paying maintenance is not one of the factors.
And this is surely how it must be. We cannot, for example, say that the risk of harm to a child is reduced because the non-resident parent (‘NRP’) is paying child support, and that the more the NRP is paying, the less that risk is. Nor can we say that just because the NRP is paying child support that means they are capable of meeting the child’s needs. Conversely, we cannot say that just because the NRP is not paying child support the child is at greater risk of harm, or that the NRP is not capable of meeting the child’s needs.
Of course, in the vast majority of cases the child’s welfare will determine that there should be regular contact with the NRP, irrespective of whether or not they are paying child support. Courts take the view that contact is usually best for a child’s welfare, and only refuse contact in exceptional cases, where it is clear that the child’s welfare would suffer if contact were to take place. If the court has taken such a decision, then obviously no amount of child support paid by the NRP should make any difference.
Of course, the protesters are not just aiming at the courts. They are also aiming at the parents with care of the children, usually the mothers. They say that if she doesn’t let me see the kids, then I won’t pay her any child support. This, of course, is the wrong approach – if the parent with care is refusing contact, then the remedy is to apply to the court for a contact order, not to refuse to pay child support.
This leads me to my next point: just because an NRP is not having any contact with his child, he still has to pay child support, provided he can afford to do so. The child’s financial needs don’t change just because the NRP isn’t having contact. Save where a child is adopted, the responsibility to maintain them lasts until the child is no longer dependent, irrespective of the arrangements for contact. It should be remembered that this, of course, applies to both parents: the parent with care is also obliged to contribute to the child’s financial needs, so far as their means allow.
Unfortunately, the government in its infinite wisdom chose to make a link between child support and contact, by including in the child support formula a deduction for the amount of time that the child stays with the NRP. This can obviously lead to some NRPs seeking more contact not because they think that is best for the child, but simply to reduce their child support liability. Whilst no court is likely fall for such a ruse, the formula can obviously lead to further unnecessary disputes between parents.
Linking contact and cash, therefore, is both wrong for the child and wrong for the parents. It disregards the child’s welfare and increases the chances of parental conflict. All parents are obliged to maintain their children, and NRPs refused contact should seek redress through the courts. And if the courts refuse them contact, then they should consider very carefully the reasons for the refusal, which will usually have nothing to do with the issue of child support.