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CMS, Consent Orders and 50/50 Care

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u6c00
Posted by
Platinum Member

15 Jan 14 #419195 by u6c00

Topic started by u6c00

Rather than hijack other people''s threads, I thought I''d create a new one.

Fiona wrote:

Dukey, I don''t think many of us have come to grips with this yet. As far a I''m aware the only place the comprehensive CSA/CMS rules are accessible is the hardcopy of the latest Child Support Handbook published by the Child Poverty Action Group.

Here are links to the relevant law/regulation;

One or both parents must be non resident parent for a child to qualify for CSA/CMS purposes

s3(1)(a) Child Support Act 1991 (as amended)

www.dwp.gov.uk/docs/o-0301.pdf

If care is shared a parent is only treated as a non resident parent if "they provide day to day care to a lesser extent than the applicant"

r50(2) Child Support Maintenance Calculations 2012

www.legislation.gov.uk/ukdsi/2012/9780111526132/regula tion/50

Therefore if neither parent is the non resident parent the child doesn''t qualify for child maintenance under the CMS - the CMS has no jurisdiction.

When the CSA/CMS don''t have jurisdiction the courts may make a child maintenance order (or variation). In particular s8 (10) CSA1991 makes provision for a child maintenance order against a parent with care

s8 Child Support Act 1991

www.dwp.gov.uk/docs/o-0301.pdf

Going down the rabbit warren of legislation.gov from the Child Support Maintenance Calculation Regulations 2012 (R50) to the Child Support Act 1991 (S3, 8 and 42)

CSA (1991) S8(1) says:

This subsection applies in any case where a child support officer would have jurisdiction to make a maintenance assessment with respect to a qualifying child and an absent parent of his on an application duly made by a person entitled to apply for such an assessment with respect to that child.[emphasis added]

And S3 (2) says:

The parent of any child is an “absent parent”, in relation to him, if—
(a)that parent is not living in the same household with the child; and
(b)the child has his home with a person who is, in relation to him, a person with care.

Seems from this that under 50/50 care agreements that neither parent can be defined as the absent parent therefore can S8 apply, and therefore can the court make an order for maintenance in respect of a parent with care?

Fiona
Platinum Member

15 Jan 14 #419207 by Fiona

Reply from Fiona

Going down the rabbit warren of legislation.gov from the Child Support Maintenance Calculation Regulations 2012 (R50) to the Child Support Act 1991

Care needs to be taken when referring to the Child Support Act 1991 @ legislation.gov. It''s the original and hasn''t been updated e.g. "absent parent" was amended to "non resident parent" in the year 2000. The DWP document in the link I gave is more difficult to read but was updated in April this year so it includes the amendments.

www.dwp.gov.uk/docs/o-0301.pdf

u6c00
Posted by
Platinum Member

15 Jan 14 #419210 by u6c00

Reply from u6c00

Thanks for that Fiona. Both sections quoted replace the words absent parent with non-resident parent as you say.

The point stands though, if neither parent fits the definition of non-resident parent is S3, can S8 apply?

Fiona
Platinum Member

15 Jan 14 #419212 by Fiona

Reply from Fiona

s8 (10) CSA1991 reads "This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if the order is made against a person with care of the child"

The courts have existing powers to order "a party to a marriage" (s23 MCA1973) or "either parent "(1(2)(a) Sch 1 CA1989) makes periodic payments for the benefit of a child. So on the face of it there doesn''t appear to be any reason why s8 cannot apply when neither parent fits the definition of a non resident parent.

maisymoos
Platinum Member

15 Jan 14 #419213 by maisymoos

Reply from maisymoos

Its a shame that once again child maintenance payment provision will cause parties to fight against equal shared care. At the end of the day the childrens well being should be paramount. If one party earns mega bucks and the other pennies, maintenance provision may still be required, otherwise you get close to poverty at one household and riches splendor at the other!

The Courts need to be able to rule against this happening!

Child Maintenance Options
Moderator

20 Jan 14 #419622 by Child Maintenance Options

Reply from Child Maintenance Options

Hi u6c00

Thanks for your post, I am William the Child Maintenance Options consultant. Under the Child Maintenance Services new guidelines If the paying parent can prove that they carry out an equal amount of day-to-day care as well as having equal shared care then the Child Maintenance Service regards neither parent to be the paying parent so their child maintenance would be set as nil, even if one parent receives the Child Benefit or tax credits as the child’s parent. Where there is equal day to day care, and there is no paying parent means that there cannot be a statutory case and the Child maintenance Service would not being able to process the application as there is no identifiable paying parent.

For further information regarding the above you will need to speak directly to the Child Maintenance Service.

To find out more about all the options available for maintenance and how Child Maintenance Options can help you visit www.cmoptions.org or call us free on 0800 988 0988 between 8am and 8pm Monday to Friday or 9am and 4pm on Saturday.

Thanks
William

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Moderators: wikivorce team, rubytuesday, dukey, hadenoughnow, Tets, Shezi, Linda Sheridan, Forseti, Mitchum, WhiteRose, Lostboy67, WYSPECIAL, Bubblegum11

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