Periodical payments for children — overviewGeneral considerations

Under the Matrimonial Causes Act 1973 (MCA 1973) and the equivalent provisions under the Civil Partnership Act 2004 (CPA 2004), the court has the power to make an order for periodical payments, including secured payments, to a party for the benefit of a child of the family.

Those powers are severely restricted by the Child Support Act 1991 (CSA 1991) in cases where the relevant children are the biological or adoptive children of the prospective payer. There are seven circumstances in which the court retains jurisdiction to make an order, including an order made by consent or an order where one of the parents is habitually resident overseas.

The criteria to which the court must have regard when considering an application are set out in MCA 1973 and CPA 2004 and include the financial needs of the child and the manner in which the child was being educated.

Additional criteria apply where the order is sought against a party for the benefit of a child of the family who is not the biological or adoptive child of that party.

There are restrictions on the making of orders. The general rule is that no financial provision may be made in favour of a child who has reached the age of 18. This is subject to qualification, eg if the child is still in education or there are special circumstances that justify an order being made. Children over 18 may seek financial provision under the Children Act 1989 (ChA 1989) upon their own application, provided their parents do not live together.

Where the Child Support Agency (the Agency) cannot undertake a maintenance calculation, the court is likely to order periodical payments at the same rate as would be calculated under the calculation. However, the court is not bound to follow the formula. The circumstances in which the court would depart from the formula would be unusual, possibly involving particularly expensive (justifiable) needs for the child.

In cases where there has not been a CSA maintenance calculation, consideration may be given to seeking a Segal order.

Procedure

If an application is made within proceedings for ancillary relief (a financial order), Form A should be issued: see Financial provision — Practice and procedure.

Overview of the CSA and CMEC provisions

The Child Maintenance and Enforcement Commission (CMEC) has now assumed responsibility for the Agency. The Agency continues for now to retain jurisdiction to calculate maintenance where the person with care (PWC) of the child, the non-resident parent (NRP) and the child are habitually resident in the UK. To be a PWC, a person must have day-to-day care of the child for 104 nights a year or more. The child must be under 16 or under 19 but receiving full-time non-advanced education.

The basic rate of maintenance is a percentage of the NRP’s net weekly income, namely:

• 15% for one child

• 20% for two children

• 25% for three or more children

The rate is reduced if the NRP has overnight contact for one or more nights per week on average or if the NRP has other children living with him. The applicable rates will change once the Child Maintenance and Other Payments Act 2008 has been fully implemented.

Different rules apply to assessments made prior to March 2003.

Since 27 October 2008 there have been changes to the child support provisions that affect a PWC who is in receipt of state benefits. These changes include:

• they are no longer compelled to use the Agency to obtain child support but may do so. Alternatively they may now enter into a private agreement with the NRP

• the Agency will pay all of the child maintenance received to the PWC

• the £20 per week disregard has been abolished with effect from 12 April 2010 — all maintenance received is now disregarded

• the introduction of a free service, Child Maintenance Options, to assist parents make informed decisions about child maintenance — see www.cmoptions.org

Where a child maintenance calculation has been made by the Agency, the court has no jurisdiction to order periodical payments for the benefit of that child, except in cases where periodical payments are for the benefit of a child with special needs, for the payment of school fees or where the NRP’s net income exceeds a given threshold.

Where the court makes an order for child periodical payments, either party may apply to the Agency for a child maintenance assessment one year after the order was made.

Top up maintenance orders by the court

Where the non-resident parent's income exceeds the Agency threshold (currently £104,000 net per year), the court may make top-up orders for periodical payments for children.

An application should be made in Form A where the payer and payee have been married/in a civil partnership and the child has been treated as a child of the family. Otherwise, an application should be made under CA 1989, Sch 1 in Form C1, accompanied by Form C10 and C10A for applications issued prior to 6 April 2011. Applications under CA 1989, Sch 1 made on or after 6 April 2011 should be made in Form A1 (High Court or county court) or Form A2 (magistrates court).

School fees

The court retains jurisdiction to order periodical payments in respect of school fees whether or not a child maintenance calculation has been made.

Special needs

The court may make periodical payments in respect of a child who is disabled under ChA 1989.

In the case of a child with special needs it may be possible to persuade the court to continue the order beyond the age of 18 if there are special circumstances justifying this.