Under a child maintenance arrangement, child maintenance is usually paid by the parent who does not have day-to-day care of the child or does not usually live with the child. The amount can be agreed and a private arrangement set up between parents. However if the amount cannot be agreed or payment is not forthcoming, then it is open to a parent to apply for child maintenance via the Child Maintenance Service (CMS), which has wide-ranging powers of enforcement. Where child maintenance is beyond the jurisdiction of the CMS, we can advise and assist parents in making a claim for financial provision via the Courts.
What measures can the CMS take if a parent fails to pay?
The CMS can secure payment using a range of powers, including:
- Ordering the paying parent’s employer to make a deduction from their wages or pension
- Instructing the paying parent’s bank or building society to take regular payments or a lump sum from their account
- Taking the paying parent to court to recover arrears via a liability order
What is a liability order?
A liability order allows the CMS to take legal action against the paying parent to recover the debt. They could:
- Negotiate payment using bailiffs, or ask them to seize and sell the paying parent’s belongings
- Use an ‘order for sale’ to sell the paying parent’s assets or property and take the proceeds
- Place the paying parent’s debt on the Register of Judgments, Orders and Fines, which will hinder them from getting a mortgage, credit card or loan
- Revoke the paying parent’s passport or driving licence, or prevent them from getting one
- Send the paying parent to prison
When will the CMS act?
When the CMS will act will depend on whether you reached a private child maintenance agreement or if your agreement was arranged through the CMS.
If you reached a private or ‘family-based’ agreement
If a private arrangement for child maintenance has broken down due to non-payment, the CMS can step in to collect ongoing child maintenance. This is provided the arrangement was made legally binding via a consent order at least 12 months prior. The CMS cannot recoup any arrears the paying parent already owes, though you could approach the court to enforce the consent order and recover the debt.
If you arranged child maintenance through the CMS
If the CMS collects maintenance from the paying parent on your behalf through ‘Collect and Pay’, they will know if payments have been missed. After trying to agree on a repayment schedule with the paying parent, they will use the enforcement measures outlined above to secure the arrears.
If the paying parent has agreed to pay you directly, known as ‘Direct Pay’, the CMS will need to be informed of non-payment before they can take action.
Has COVID-19 affected how the CMS approaches non-payment?
The COVID-19 pandemic has impacted many parents’ ability to pay child maintenance. If a paying parent claims to be unable to pay due to an income reduction, the CMS may reassess their liability. In cases where the parent’s income has been reduced by 25% due to COVID-19, the CMS will make adjustments to maintenance calculations.
What happens if the paying parent is furloughed?
If a paying parent is in receipt of the 80% furlough payment, they will be expected to pay maintenance in full. The CMS will implement enforcement measures if payment is not forthcoming.
Can I apply to Court for Child Maintenance?
Parents are usually expected to apply for child maintenance via the CMS however in certain circumstances it is possible to apply to Court for financial provision for the benefit of a child under Schedule 1 of the Children Act 1986. This option is available for:
- Top up maintenance (where a parents’ income exceeds £3,000 per week)
- Payment of school fees;
- Lump sum(s);
- A “carer’s allowance” i.e. to provide for child care costs/ a nanny; and
- The purchase or transfer of a property to the parent with care of the children, which will be returned to the parent who funded it, when it is no longer needed by the child(ren) i.e. they have finished their education or reached 18 years of age.
- where a parent lives abroad
The Court’s power also extends to making orders for periodical payments and lump sums for children over the age of 18 in full time education or where there are special circumstances e.g. a disability.