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Father’s support for second child should be taken into account in child support calculation

Children | 29 Aug 2019 0

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Sometimes you come across a case in which the outcome is so obviously correct that you wonder why the case was ever argued. The recent Upper Tribunal decision in GC v Secretary of State for Work and Pensions & AE is one such case.

The case concerned a child support maintenance assessment in relation to a boy, James, who lives with his mother, in this country. James’s father has another son, William, by a previous relationship. William lives with his mother in Denmark. The father and William’s mother had entered into a voluntary (i.e. non-court) arrangement under which the father was to provide support for William. The father has been paying that support for over ten years.

James’s mother applied for child support. The question was: should the support that the father was paying for William be taken into account in the child support assessment? Now, to me the answer is surely obvious: of course it should. Unfortunately, the matter was not so simple.

As usual with child support cases, the answer to the question was mired in the murky depths of a mass of regulations. I will try my best to cut through them, and make this post reasonably intelligible, although that will involve considerable simplification.

We are not told exactly when the mother made her application, but it would have been to the Child Maintenance Service, or ‘CMS’ (for some reason the Upper Tribunal Judge who dealt with the case refers to the ‘Commission’, despite the fact that the Child Maintenance and Enforcement Commission was dissolved in 2012). The CMS took the view that the payments that the father was making in relation to William should not be taken into account in the assessment. They calculated that the father should pay £144.39 per week in respect of James. The father appealed.

The crux of the matter lay in the interpretation of a regulation that allowed the CMS to take into account in its assessment maintenance paid by the non-resident parent (‘NRP’) in respect of a child living abroad. The regulation states that the maintenance must be paid under a court order, or “under the legislation of a jurisdiction outside the United Kingdom”. Clearly, William’s maintenance was not paid under a court order, so was it paid under the legislation of Denmark?

The CMS, and the First-tier Tribunal, to which the father initially appealed, thought not. The concern, it seems, is that an NRP paying under an informal voluntary arrangement abroad might be at an advantage over an NRP paying for another child in this country who falls outside of the child support scheme, as in the latter case the payment is only taken into account if it is made under a maintenance order.

The Upper Tribunal upheld the father’s appeal. The Judge said that there is a clear policy intent to encourage parents to come to mutually agreed, effective arrangements for child maintenance outside the statutory scheme. This is the primary aim of the current child support scheme, and to ‘disallow’ an agreed arrangement in relation to a child living abroad would in my view be absurd.

Further to this, and in any event, had the father and William’s mother not made an agreement between themselves, the Danish state legislation would have been invoked. Accordingly, it could be said that there was liability under the legislation of a jurisdiction outside the UK, and such voluntary arrangements are taken into account.

The Upper Tribunal therefore reassessed the child support for James, taking into account the support that the father was paying for William. This had the effect of reducing the child support from £144.39 per week, to £96.26 per week.

Surely, a sensible and, dare I say (with no disrespect intended), obvious, result.

If you want all the gory regulatory details, you can read the 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.

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