Friday, 21 September 2007

Child Maintenance and Shared Care

by Catherine Le Quesne

The subject of child maintenance was in the news this summer when barrister and father of five Michael Cox was imprisoned for 42 days by magistrates for refusing to pay maintenance calculated by the Child Support Agency. Cox argued that since he and his ex wife had a shared care arrangement and the children spent equal amounts of time with each of their parents, he should not have to pay any child maintenance. He was freed after 14 days on appeal.

Cox’s case highlights the difficulties surrounding child maintenance when there is a shared care arrangement. The courts have been more willing to make shared residence orders since the case of D v D (Shared Residence Order) [2001] 1 FLR 495, when the Court of Appeal held that, contrary to earlier case law, it is not necessary to show that exceptional circumstances exist before a shared residence order may be granted. The provision of child maintenance is still governed by the Child Support Act 1991. Under that act, one must first determine which of the parents is the ‘non-resident parent’(NRP) and which is the ‘person with care’(PWC). Maintenance is then calculated and paid by the NRP to the PWC. Where both parents provide day-to-day care to the child and there is nothing to choose between them, the deciding factor is who is in receipt of child benefit.

The amount of maintenance payable by the NRP is reduced according to how many nights the child spends with him or her:

Number of nights Fraction to subtract
52 to 103 one-seventh
104 to 155 two-sevenths
156 to 174 three-sevenths
175 or more one-half

If the one-half threshold is reached for any given child, the maintenance is reduced by a further £7 a week. Therefore if care is shared equally, the maintenance payable is reduced by half and then by £7 a week for each child. The fairness of a system in which even when care is split down the middle, one parent must still pay maintenance to the other, must, it is submitted, be questionable.

The government is about to overhaul the child maintenance system and the Child Maintenance and Other Payments Bill was published on 6th June 2007. This would replace the Child Support Agency with the Child Maintenance and Enforcement Commission. Measures contained in the bill are intended to encourage parents to make their own arrangements for child maintenance and to simplify how maintenance is calculated. Tougher enforcement powers to collect arrears are also introduced. It is regrettable that the government have not used this opportunity to introduce a more equitable basis for the calculation of maintenance in shared care arrangements when such arrangements are being favoured by the courts.