Michelle Counley
Introduction
Child maintenance ensures that children continue to receive financial support from both parents after separation. The principle is simple. However, the UK Child Maintenance System (CMS) is complex and highly technical.
Even parents who act in good faith can face unexpected costs, arrears, or enforcement action. A clear understanding of the statutory framework helps avoid these outcomes.
When Good Intentions Create Legal Risk
Once CMS issues a maintenance calculation, the paying parent must follow the payment schedule. They must pay the full amount on time. If they fail to do so, CMS may move the case to the Collect and Pay service. This adds a 20% surcharge to the liability.
Overpayments create a different risk. CMS does not automatically credit extra payments to the account. In many cases, it treats them as gifts. These payments may not reduce future arrears, even if CMS later revises the assessment through a variation or appeal.
CMS bases maintenance calculations on the paying parent’s gross income reported to HMRC. This includes earnings, pension income, bonuses, and self-employment profits.
However, CMS excludes other income streams from the standard calculation. These include rental income, dividends, and notional income from diverted income or assets over £31,250. CMS will only include these through a successful variation application under the Child Support Act 1991 and related regulations.
Parents should seek advice on how and when to apply for a variation.
Case Example: When Responsibility Is Penalised
Tom and Becky separated and share two children. CMS calculated Tom’s maintenance based on his reported income of £12,000 per year. This produced a liability of £37 per week (£160 per month).
Tom also received £65,000 per year in dividends. His total income was £72,000. He told CMS about this, but CMS did not act immediately.
Tom used the CMS calculator and estimated that he should pay around £860 per month. He chose to pay this higher amount voluntarily.
Three years later, CMS processed the variation. It revised the assessment and backdated it. Despite the delay, CMS found that Tom had arrears.
CMS treated Tom’s additional payments as gifts. It did not credit them to his account.
Under CMS rules:
- A voluntary payment is made after a CMS application but before a calculation
- A direct non-scheme payment is made after a calculation, instead of CMS payments
Extra payments do not qualify as non-scheme payments unless the receiving parent agrees. CMS has discretion to decide this. There is no right of appeal.
In Tom’s case, Becky did not agree to treat the extra payments as maintenance. As a result, CMS ignored them. Tom remained liable for arrears, even though he had tried to meet his full responsibility.
Jurisdictional Conflicts Between CMS and the Courts
Complications often arise when CMS and family court proceedings overlap.
Once a CMS application is made, CMS gains statutory jurisdiction under the Child Support Act 1991. This usually continues, even if court proceedings follow.
Courts cannot override CMS assessments unless both parties agree and record that agreement in a consent order. Even then, the CMS case does not end automatically.
If a financial remedy order includes child maintenance, the CMS case must be closed. If it remains open, the paying parent may face dual liability.
One recent client paid maintenance under a consent order. However, they did not close the CMS case. CMS later treated those payments as non-scheme payments and pursued enforcement action.
Shared Care and Appeals
In cases of equal shared care, CMS may decide that no maintenance is payable under Regulation 50 of the Child Support Maintenance Calculation Regulations 2012.
Disputes about shared care often lead to appeals to the First-tier Tribunal. These appeals can take over 12 months.
During this time, parents often feel unsure about their obligations. If they stop payments, CMS may move the case to Collect and Pay. This adds a 20% surcharge.
If the appeal succeeds, CMS may remove the arrears and charges. If it fails, the paying parent remains fully liable. This includes arrears, fees, and possible enforcement action.
If the paying parent continues to pay during the appeal, they can avoid the surcharge. However, if the appeal succeeds, CMS will not refund any overpayments.
CMS may suggest recovery through the small claims court. However, this approach is uncertain. In R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48, the House of Lords confirmed that only the Secretary of State can recover child maintenance arrears.
In practice, courts often reject small claims on jurisdictional grounds. This remains an uncertain area.
Conclusion
The Child Maintenance System aims to provide consistency and fairness. However, its complexity creates real risks for well-intentioned parents.
Parents must always pay the notified amount on time to avoid surcharges and enforcement. If the assessment does not reflect their true financial position, they should seek legal advice before making additional payments.
Acting responsibly is important. However, without a clear understanding of CMS rules, it can lead to serious financial consequences.nderstanding of the CMS framework, it can lead to serious and lasting financial consequences. Contact NACSA for all CMS related queries and concerns.
Michelle Counley is the lead consultant at NACSA, specialists in child maintenance legislation. She has provided support and guidance to parents since 1995, and regularly advocates for clients in CMS Tribunals.