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Father required to pay more child support after breakdown of contact

If a non-resident parent (‘NRP’) enjoys shared care of a child (i.e. an average of at least one overnight stay a week) then the amount of child support maintenance that they are required to pay will be reduced, with the amount of the reduction depending upon the number of nights per year that the child spends with the NRP. Accordingly, for example, if the child stays with the NRP for between 52 and 103 nights per year then the maintenance is reduced by one-seventh, if the child stays with the NRP for between 104 and 155 nights per year then the maintenance is reduced by two-sevenths, and so on.

But what if a court has ordered that the child should spend a sufficient number of nights with the NRP to warrant a reduction in the child maintenance, but the order is not being complied with – what is the effect of this upon the amount of child maintenance that the NRP is required to pay? This was the question facing the Upper Tribunal in the recent case EA v Secretary of State for Work and Pensions and SA.

The relevant facts of the case may be stated quite simply (in fact, I am going to simplify them even further, for the sake of clarity). The mother and the NRP (I shall call him that, rather than ‘the father’, for the sake of consistency) had two children, one of whom is grown up, and the younger of whom is now aged 13. The parents divorced in 2013, and on the 31st of May 2013 the court made an order providing for the father to have overnight contact with the younger child, including alternate weekends from Thursday to Mondays, and additional holiday dates. However, by at least October 2015 the contact arrangements had broken down, as a result of which the NRP was not enjoying the overnight contact set out in the order. This was against the NRP’s wishes, the mother claiming that contact stopped because the child didn’t want it, and had run away one weekend to avoid contact.

Meanwhile, in August 2016 the Child Maintenance Service (‘CMS’) made a decision about the level of child support maintenance that the NRP was liable to pay with effect from the 24th of July 2016. The amount included a reduction for shared care, based upon the terms of the contact order. The mother requested that the decision be reconsidered, and as a result the decision was revised on the 1st of November 2017. The effect of the revision was to increase the payments by the NRP, because the deduction for shared care was removed, in the light of the fact that the overnight contact was not actually taking place.

The NRP appealed. The First-tier Tribunal rejected the appeal, and the NRP appealed again, to the Upper Tribunal.

The Upper Tribunal also refused the appeal. Whilst the regulations state that, when considering the issue of shared care, the CMS must consider the terms of any court order providing for contact between the NRP and the child, there is no obligation to determine shared care solely on the basis of the provisions in that court order. The weight to be attached to the court order is for the CMS to decide. They are also entitled to take into account evidence that the provisions of the order do not accurately reflect the number of nights for which the NRP is expected to have overnight care of the child during the relevant 12 month period. It is not the intention of the child support legislation that the contact arrangements set out in the court order must take precedence over the actual overnight contact, no matter how old the court order was or how long it had been ineffective. The deduction for shared care is to reflect the respective costs of caring for the qualifying child borne by the parent with care and the NRP, and to do otherwise would not be in the interests of the child, or in accordance with the policy intention of the deduction for shared care.

Here, the First-tier Tribunal had concluded that “there was likely to be no or limited overnight care in the 12 months from the effective date”, and that determined the matter. The Upper Tribunal judge concluded with the following:

“I can understand [the NRP’s] frustration. He wishes to see his son, and would like [the mother] to facilitate that. He considers it is in the best interests of his son to have contact with him, and feels it is unfair that he pays additional child maintenance, having lost credit for shared care because contact ordered by a court is not happening. However, if [the NRP] is not content with the present level of contact, he has avenues of recourse in the courts available to him.”

You can read the full report of the case here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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  1. Spiro Ozer says:

    “However, if [the NRP] is not content with the present level of contact, he has avenues of recourse in the courts available to him.”

    Yes, the courts have certainly done a good job of giving him recourse for the mother’s non-compliance with court orders to date, haven’t they? That has no doubt given him great confidence that he will be treated fairly in future.

  2. Jerry says:

    I was under the impression (from the DWP) that parenting time specified in a court order should normally be taken into account irrespective of any denial of contact. However getting the DWP to acknowledge that in writing has proved fruitless so far. Also, the DWP are apparently planning to change the (alleged) rule so that only actual parenting time (contact) is taken into account. Bearing in mind that according to the court’s own recent statistics, only about 1% of applications for enforcement of Child Arrangement Orders result in an order being made, leaves us in little doubt that the CMS protocols in this (and other) respect, effectively encourage and even reward denial of contact. Hardly surprising that this generates ill-will and distrust in parents (almost always fathers) when despite contributing often large sums towards maintenance and legal costs, they are rewarded with an expensive and painful kick where it hurts and their children get to grow up without their dads. Shameful.

    • Charlotte Wood says:

      CMS have never been fair the the NRP, even in the forms it clearly states that any false information is punishable by being taken to court and a fine of up to £1000.
      In our case the mother has consistently lied about the amount of time we have with the children, just so that she can claim as much money out of my partner as she can! Surely she should be punished to by lying on the forms too? Lying is one of her strengths and weaknesses, as she always fails to tell the truth in pretty much everything! Why should men be penalised for being men? In our case we are more stable than she will ever be, not to forget that she has a mental record and persistent drug abuse to! Hopefully with the divorce we will get what the children want, and what we want! She has alienated my partner by not allowing him to see his children for nearly over 2 months, after an ‘alleged assault’ with my partner, all of it lies just so she could play the victim yet again. This needs to be punishable by jail! Even in the allegations she lied and for some reason our country sides with her!
      Our legal system has to change, as it is not always the fathers who are in the wrong! Ex-wives and mothers are just as evil and narcissistic as all they care about is money and their our selfish gain. Fathers need to be recognised as the sole care givers too, in our case this is what we want as the ex is toxic and unable to look after herself. I would love to name and shame this vile woman, who has done nothing but cause us stress, lies, manipulate the truth, and she also damaged her children psychologically. If she really loved her children, she would not have put them through the hell she has created!
      At the end of the day, the only people who suffer are the children and fathers who just want to spend more time with their children. CMS needs to change if not completely got rid of as it doesn’t work and is not very fair! Mothers like this one in our case are criminals not victims! Things must change for the better not for the worse. Why should hard working fathers be penalised by our system for working hard?! Also if my partner and I were to have children then the evil ex’s CMS would only be reduced by 11%, so to me our children are worth less than her children, I don’t think so! Another example of how CMS needs to change!

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