Shared Care and the Child Maintenance Service: one part of the CMS assault course
My reading tells me that the list of things that make you stronger if they do not kill you is pretty short. The CMS rules on shared care would not make it. They risk creating a forum in which conflict between parents can build, at precisely the time when families need simplicity and child-focused solutions.
They are not the rules you would write if you were given a blank page. They are complex and difficult to make sense of if you start from the assumption that their purpose is to promote a child’s best interests when their parents separate.
I have worked in the world of child support since before the scheme went live in April 1993. I have seen successive political attempts to remedy its flaws. The result is a labyrinth that families can spend years fumbling around in, before emerging blinking three or more years later and wondering why the system works as it does. They may also wonder whether, if they had understood the realities earlier, they could have reached a solution many agonising months before.
The human cost when the system goes wrong was brought into sharp focus by BBC Panorama, with parents on both sides of the CMS describing the impact of administrative errors, difficulties securing payments and disputes that have dragged on for years.
So, let’s boil it down to the basics.
General maintenance and the shared care conundrum
- There is a difference between:
a. “shared care band equal”, which simply means that the person in the role of “non-resident parent” (“NRP”) can show that they have care of the child for 175 nights a year or more, resulting in a 50% (+£7 pw) reduction in the full formula figure; and
b. “regulation 50 shared care”, which means that the CMS doesn’t have jurisdiction at all. This is not about overnights. It is about whether one parent is providing day to day care “to a lesser extent than the other”, apparently “a common sense question of fact for a tribunal to decide on the evidence before it”.
- If you are an overnights case, you are definitely within the CMS system. If you are “sharing day to day care”, you are not.
- If you are not in the CMS system, you can go to court to ask for provision.
a. One judge (at least) has taken the view that you can ask the court to decide whether you are sharing day to day care. But you can also ask the CMS.
b. If the CMS decides that you are not sharing day to day care, that is probably the end of it. The CMS will progress with its assessment and the court can’t do a lot about it. If the CMS decides that you are sharing day to day care, it is very likely that the court will step into line with that.
- When it comes to what the court will do:
a. When deciding how much to award, the court is likely to have regard to what the CMS would do. I know, strange, because the only reason the court is deciding is that the CMS has decided that it will not do anything. But one “cross on the graph” of possible solutions would be to look at the CMS formula on the basis of shared care band equal.
b. For higher incomes, the court has its own formula, a straight line graph heading towards £27,000 for one child (if no overnight stays) where the paying parent earns £650k gross a year.
c. But in all cases, the court would carry out an assessment of what was fair, focused on:
i. the welfare needs of the child;
ii. a budget of what costs the applicant says they must discharge for the child; and
iii. the resources of the respondent to the claim (which can include capital as well as income).
Other claims
- So far as costs relating to education (which might be school fees, tutor costs and so on, but generally not nursery costs) and costs arising from disability are concerned, these can always be pursued at court, regardless of what is happening with the general maintenance claim (whether that is through the CMS or the court).
Married and not-married cases
- There are completely different systems (different statutory systems but operating out of the same court) for parents who are married and those who were never married.
The rules about child maintenance are pretty similar in terms of what the court must take into account and for how long provision can last. Repeat applications for new orders are possible.
The big difference is that whilst a parent can apply for a new order for their over 18s where they were married to the other party when it comes to never-marrieds, that application has to be made by the child.
Agreement cases
- Problems often crop up in cases where there was an earlier agreement.
a. Here, a court order may have been made by a judge or agreed between the parents at a level that makes sense to them and their advisors.
b. The trouble is that the level of this order might not be the same as will be adopted by the time that the CMS has finished dealing with the case and either party can apply to the CMS as soon as the order is 12 months old (and then the CMS steps in and trumps and terminates the court’s order with its assessment).
So, the paying party might apply to the CMS if they think that they will get a lower award than the court order. The receiving party might apply to try to make it go up. (There may be no certainty as to which way it will go when they make the application).
c. It is really important to fix child maintenance in line with the CMS rules where you can predict what they will be and acknowledge the uncertainty given the lack of predictability.
There are only a few schemes that can insulate you from this: “the global order”, where there is ongoing spousal maintenance and “the Christmas order” if your judge will agree to do this.
High earners and jurisdiction
- A fix that I frequently see parents getting into is having long fights through the CMS about whether this is a regulation 50 shared [day to day] care case or not.
Imagine Al. They earn £250k a year. They are sure that they share the care of Jemimah.
Bobbie is not sure at all. Bobbie is pretty sure that they are Jemimah’s primary parent.
And the parents have got themselves into a fix, arguing this out in front of the tribunal.
To which I could be saying: “what is the point?”
Surely:
- Either Al is right, in which case this is not a CMS case and so the CMS closes its file. Bobbie then asks the court to decide.
- Or Bobbie is right, in which case the CMS carries out an assessment and hits the maximum. And, as everyone knows, once Al’s income is seen to be over £3,000 pw gross, Bobbie can ask the court to decide.
Either way, the court is ultimately going to be deciding how much should be paid. Let’s cut out the pain and expense of the case with the CMS.
This raises a topic that exists in almost every CMS case.
The fight for truth and justice
- Separation is hard. So often, the CMS is left as the forum that each side looks towards to put right all the hurts that the past has seen and that the future seems likely to contain.
a. But the CMS is not equipped to do this.
CMS regulation is an encyclopaedia of itty-bitty rules, trying to eke “fair provision” out from the myriad circumstances that families present.
For example: “yes you can claim the cost of a road toll within the calculation, no you can’t claim the cost of day school costs. Yes you can claim the costs relating to the disability of a child in the NRP’s household” etc.
All that the tribunal is going to do is:
i. understand what rule the applicant says has been breached;
ii. gather evidence; and
iii. make a decision.
b. The tribunal isn’t going to fix the injustice of separation or post-separation attempts to co-parent. It is not permitted to do so. All it can do is decide about the money and it can only decide about the money in line with its rules.
So, if you are going to a tribunal, be very clear about what specific rule you are arguing about, think about whether this case is going to be worth it, given the likely out-turn and focus your efforts on that and that alone.
The hurt and upset is, sorry to say it, just going to be the flames that the tribunal must look past to discern the facts on which it can base its decision and do its job.
c. That is not to say “ignore the hurt and upset”. We know that unresolved conflict carries a greater risk for toxicity for children than anything else. Very much you should find solutions to this if you can, including thinking about whether you can reverse the downward spiral, draw breath, reset and find a new way of being, perhaps with a new rule book (see https://separatedparentingprogrammedirectory.org/) or mediation.
Duration
- And before we leave, a brief word on duration.
a. The CMS generally disengages on the 31st August after A levels.
b. Financial support can continue [but in the absence of agreement, will be fixed by the court] and then will generally last:
i. Until the end of the child’s first degree course; or
ii. Longer, potentially life-long where a child has a condition that makes them dependent on an applicant parent. Generally make sure, as the applicant, that these claims are made before the child’s 18th birthday.
I get it. All of this is heavy going and seems beset by unnecessary complexity but help is out there. You do not need to decide whether it is making you stronger by trying to force your way over the jumps and through the obstacles.
I would be happy to advise and support you in navigating these issues if instructed to do so. You may also wish to contact the CMS specialists at www.nacsa.co.uk.
