A parent paying maintenance towards the care of their child will often approach our lawyers for advice when they are being denied a relationship, asking do they have to continue to pay. A recent case illustrates how complicated this area of law is.
The case of EA v SSWP and SA (CS) [2019] UKUT 149 (AAC) highlights the ongoing problems with linking (or indeed not linking) child support to ‘contact’ and is a reminder that maintenance is payable whether or not a parent sees a child simply because it benefits that child. It also reminds us that child arrangements orders should be enforced or varied if they are not working in practice as soon as possible.
How does child maintenance work?
As most people would expect, child maintenance is paid to the parent with whom children live to go towards the costs of looking after them. This isn’t intended just to cover the costs of new shoes or day trips but also an element of housing, heating, feeding and keeping those children safe and well.
If parents are no longer sharing the costs of raising children together then it does seem fair that the parent with whom they spend most time gets some financial help towards those costs from the parent who doesn’t ‘live with’ them. On the other hand, with shared care generally being seen as the best way of raising children post separation and a deliberate movement over the years away from the concepts of ‘access’ and custody, it is quite right that the other parent has credit for the amount of time children are in his or her care and he or she is funding the costs of caring for them.
The unintended consequences of this straightforward concept, however, do not always work in a child’s best interests. As family lawyers we do see parents whose starting point for deciding child arrangements are not what will work best for their children and the wider family for practical and emotional purposes, but rather how much they can maximise their child support or minimise their maintenance obligation by counting the overnights children are in or out of their care.
A child maintenance calculation is decreased for the number of nights in a twelve-month period a child spends with what the legislation calls the ‘non-resident parent’.
How does a child arrangements order impact on child maintenance?
The recent case of EA v SSWP and SA (CS) [2019] UKUT 149 (AAC) neatly demonstrates the tensions between child arrangements and child maintenance. In this case, there was a child arrangements order made by the family court setting out the number of overnight stays the child would be having with his Father. The arrangements had broken down, but the order had not been formally changed. Father wanted to see the child as set out in the order. Mother’s position was that the child did not want to stay with his Father and that was why overnight stays had stopped. The discussion was about whether the shared care should be calculated in accordance with the child arrangements order order or the reality of the situation.
In short, the Tribunal decided that it should not ignore the child arrangements order, change it or endorse that it had been breached. It was for Father to enforce the order through a court process. But the Tribunal could not enforce the order in its child maintenance assessment. The Tribunal’s only obligation was to consider the court order when calculating maintenance. The deduction for shared care is to reflect the respective costs of caring for the child borne by each parent. It would not be in the child’s best interests to make this deduction based on what should be happening rather than what was actually happening.
The Tribunal expressed sympathy for Father’s position. He wishes to see his son, he believes it is in his child’s best interests to spend time with him and wants Mother to facilitate this. He feels he is being penalised twice over: by paying additional child support because child arrangements ordered by a Court are not happening and so he is not seeing his child. But the situation on the ground took priority over the court order in the maintenance calculation.
I am sure Father feels that Mother has financially benefitted from being obstructive. I hope that the Father in question does take enforcement action sooner rather than later. It is true to say that the longer court orders are allowed to be ineffective, the harder it is to get child arrangements up and running successfully.
Kathryn McTaggart
Professional Support Lawyer, Woolley & Co, Solicitors
