Director James Pirrie of Family Law in Partnership was named as “undoubtedly this country’s expert on child support” in this summary of the Family Law Cohabitation Conference (November 2016). The summary first appeared in the January issue of Family Law at  Fam Law 114.
Between 1996 and 2016, the Office for National Statistics had reported that “cohabiting couple families were the fastest growing family type over the last 20 years”. In 2010, 31% of live births were those of women who were unmarried but cohabiting, and by 2011 the same percentage of cohabiting couples as married couples were parents. According to the speakers, the rejection by the Government in 2014 of the Law Commission’s recommendation of changes to existing statutes governing administration of estates and intestacy, in the form of the Inheritance (Cohabitants) Bill will mean that legal disputes involving ownership of property by, and financial provision for children born to, unmarried couples are therefore likely to grow.
“Child Support – the Child Maintenance Service (CMS)
James Pirrie (undoubtedly this country’s expert on child support) urged lawyers to adjust their mind-set and ‘think like a lizard’. 87 pages of the handout (itself developed over 23 years) had been devoted to James’s slides and yet, with some wizardry, James was able still to offer a one page summary.
The three regimes
James delivered a highly comprehensible and exhaustive analysis of the three regimes (CS1 1993 – 2003, CS2 2003 – 2012 and CS3 2012 to date) focusing on jurisdiction, CS3 and then highlighting traps for the unwary. Figures for March 2016 show that combined arrears accrued under CS1 and CS2 are £3.7 billion. 70% of parents in CS3 are paying directly but are perhaps naïvely assumed to be behaving themselves and paying in full! CS1 and CS2 cases have been terminating between 2014 and 2017, with an end of any obligation to pay. Arrears will be carried forward into CS3.
Jurisdiction and guidance from the courts
Consideration first has to be given to the jurisdiction – geography, the child’s ‘age and stage’, parentage, the need for separate households and the presence or otherwise of a court order. Where the CMS has jurisdiction, the court’s powers are very limited, but extend to agreement, top-up payments, educational costs, costs associated with disability and reverse orders (possibly – see N v C  EWHC 399). Agreements in court orders to exclude the CMS are void (s 9(4) CSA 1991). Even if the CMS does not have jurisdiction the courts have urged parents to apply the formula: see GW v RW  EWHC 611 (Fam),  2 FLR 108 – a CS2 case, and more recently TW v TM (Minors) (Child Maintenance: Jurisdiction and Departure from Formula)  EWHC 3054 (Fam),  2 FLR 1386 where Mostyn J approved the formula even where the earnings of the paying party exceed the statutory maximum.
What has changed since 2014?
The most significant changes under CS3 have been in the scope for variations of decisions, with the removal from consideration of hypothetical income (at 8%!) generated by assets of over £65,000 and of a ‘lifestyle inconsistent with income’ formerly available in CS2. The centrality of the paying party’s tax return can lead to some unfair results, not least because it focuses on the income in the previous tax year. Paying parties (eg the self-employed) can ensure that some income is never seen by the receiving parent – especially if well-behind with the filing of their tax returns. There is no appeal if the paying parent is obviously lying about income: only if income has arguably increased by 25% can a reassessment of current income be requested.
180° turn in public policy
James observed that the statutory regime’s original professed aim of drawing all child support disputes under its umbrella had been expressly reversed so as to deter parents from approaching the CMS and to encourage self-authored solutions without the need for the ‘collect and pay’ scheme (for which the paying party pays 20% on top, and the receiving party 4% of the maintenance figure). The role of the information service CM Options has changed from concerned, informative sign-poster to officious gate-keeper. However, perhaps the new policy of encouraging paying parents to pay first, argue later (and pay 20% on top if wrong) may obviate many enforcement applications. According to the Child Support Calculations Regulations 2012, disputes as to quantum of shared care arrangements effectively lead to a one-seventh reduction in child maintenance (reg 47), and if care is completely equal, there may in fact be no paying parent (reg 50). James warned that if the CMS has got the numbers wrong then there is a period of just 28 days to ask for a ‘mandatory reconsideration’ and then, if no remedy has been found, a further 28 days to appeal to the First Tier Tribunal.
Don’t be negligent!
James concluded that practitioners should ensure that their clients are properly advised of the transience of court orders, the fact that many of the variables at play are in control of the paying party (geography (jurisdiction), pensions, school fees, contact costs, possibly income), and that the CMS is about rules not about fairness.”
James is a director at Family Law in Partnership. He specialises in complex financial issues and non-adversarial and cost effective approaches to divorce and separation including mediation, arbitration and collaborative law. He helps clients take control of the issues that affect them, clarifying priorities, exploring all the options and identifying the best way forward. The leading legal directories Chambers UK and The Legal 500 UK have listed James as a top ranked, leading individual in the field of family law for many years, with The Legal 500 UK also naming him a leading mediator. James is well known for his expertise in relation to child support and has appeared before the Treasury Select Committee to explain the operation of the current Child Maintenance Service. Contact James at:
T: 020 7420 5000