Child Support is also known as child maintenance. Child maintenance is designed to make parents responsible for maintaining their children. Non-resident parents (who do not live with the child) make periodical payments to resident parents who live with the child and responsible for the daily care of a child. Child support payments are often required to be made when the parents separate or divorce and once the child arrangements for children are decided.
Our child law specialists consider a recent case of GC v Secretary of State for Work and Pensions & AE (2019) in which a father is making child maintenance payments for a second child. This case considers whether fathers support for second child should be taken into account when calculating child support. Many people would often argue that child maintenance a father pays for another child should be taken into account when assessing child support, however this matter was not that simple.
The case concerns a father who has a child named James in the UK who resides with the mother. The father also has another child from another relationship named Williams who resides in Denmark. The father had entered into a voluntary arrangement with the mother of William in Denmark to provide child support for Williams which he has been making over ten years.
The mother of James applied for child support to the Child Maintenance Service who are referred to as the commission. An assessment was made by the commission and it was calculated the father was to make weekly payments of £144.39 in respect of James. The commission had not taken into account the child support payment the father was making for his child Williams who was a resident in Denmark. The father subsequently appealed this decision.
The matter went before the First-Tier Tribunal who has to consider whether the Commission is entitled to take into account the father’s payment towards his other child Williams who was living abroad in Denmark. The commission and the First-tier Tribunal were both of the opinion that the payment to a child who was living abroad should not be taken into account.
Section 9 of the Children Act 1989 makes provision for maintenance agreement between parents and does not prevent any person from entering into a maintenance agreement. The Act also encourages the making and keeping of maintenance agreements.
The regulation which deals with child maintenance payments is section 52 (1) of the Child Support Maintenance Calculation Regulations 2012. This regulation states:
52 – (1) a case is to be treated as a special case where –
(a) an application for maintenance calculation has been made or a maintenance
calculation is in force with respect to a qualifying child and a non-resident
parent;
(b) there is a different child in respect of whom no application for maintenance
calculation may be made but whom the non-resident parent is liable to
maintain
(i) in accordance with a maintenance order made in respect of that child
as a child of the non-resident parent’s family, or
(ii) in accordance with an order made by a court outside Great Britain or
under the legislation of a jurisdiction outside the United Kingdom; and
According to the above regulation maintenance payments must be made under a court order or under the legislation of a jurisdiction outside the United Kingdom.
In this situation fathers payments to his child in Denmark were not under a court order which the regulation required as they were under a voluntary arrangement. It also seems the commission and the First-Tier Tribunal interpreted the payments were not made under the legislation of Denmark.
As this was one of the first case of its kind the matter proceeded to the Upper Tribunal. The issue the judge had to consider concerned the status of an arrangement between William’s parents in Denmark which was made without an order of the Danish court.
The judge granted the fathers appeal in the upper tribunal on the basis that legal clarity was required. The judge was of the opinion that there has never been any challenge to the fact that the father has been contributing to his child in Denmark. The issue was whether the informal arrangement sufficed to include his support for that child under a statutory maintenance calculation.
A special case under regulation 52 is made out where a non-resident parent is liable to maintain another child under the legislation of jurisdiction outside the UK. The Secretary of State’s investigations confirm that had the parents not made an agreement between themselves, the Danish state legislation would have been invoked. Accordingly, there was liability under the legislation of a jurisdiction outside the UK and such voluntary arrangements are taken into account. However, the judge ruled that credible evidence is required to establish the arrangement itself.
In this case the judge in the upper tribunal accepted the evidence by the father which confirmed the maintenance payments he had been for over 10 years reassessed the maintenance the father was to pay for his child James who was in the UK. The judge ordered the child maintenance payments to be reduced from £144.39 per week to £96.26 per week and taking into consideration the payments the father was making to his other child William’s in Denmark.
This case provided a sensible and clear approach when considering the issue of making child support payments for a second child. You may want to rest assure that if child maintenance payments being made for the benefit of other children on a voluntary basis should be taken in account.
At Kabir Family Law we have child law experts who are able to advise on any aspects of child law as well assist you in making an application for child support payments. Contact us on 0330 094 5880 to discuss your query or let us call you back.
Our family lawyers in Newcastle as well as York, Manchester, Oxford and London offer free initial consultations if you query child maintenance.
We are a team of family law and divorce experts with years of experience in dealing with all areas of family law matters.
We are not part of a firm of Solicitors, do not undertake legal reserved actives unless permitted and are therefore entirely independent.
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