This is a guest post by Kathryn Cassells. Kathryn is an associate solicitor at Vaitilingam Kay, specialising in family law including divorce, finances and private children law. Kathryn tweets as @MasonCassells

Y v The Secretary of State for the Department of Work and Pensions (in relation to the Child Maintenance Service) [2021] EWFC B40

This short judgment was published at the request of Mr Y, the applicant in the appeal, to record the difficulties he encountered in resolving a dispute with the Child Maintenance Service (CMS).

Mr Y’s experience in dealing with the CMS and the Secretary of State is, to put it mildly, quite concerning. The complete lack of engagement with the case, from even acknowledging appeal documents to responding to court orders, is genuinely rather baffling.

As well as highlighting the problems Mr Y had in resolving the issue, the case is a useful reminder of the principle that in cases where there is equal shared care of the children, there will not be a ‘non-resident’ parent and so no child maintenance will be payable. The case did not make new law but reaffirmed the Court of Appeal decision in Child-Villiers v Secretary of State for Work and Pensions 2003 1FLR 829 in determining whether someone is a non-resident parent.

This blog recaps the circumstances in which child maintenance is payable, how the amount of maintenance is calculated, and then considers Mr Y’s case in a little more detail.

When is child maintenance payable?

Child maintenance is payable by the parent who does not have day to day care of the child. This parent is referred to as the ‘non-resident parent’. The receiving parent is the one with whom the child spends more of their time. When the child spends time overnight with both parents, that may affect the amount of child maintenance payable. The more nights the child stays overnight with the paying parent, the less child maintenance will need to be paid. When there is an exact equal shared arrangement, the legal position is that neither parent needs to pay to the other any child maintenance.

How are the payments calculated?

By way of summary, the amount of child maintenance payable is calculated by:

1. Taking the parent’s gross annual income
2. Making deductions for things that affect the gross income including (but not limited to) payments into a private pension or any special expenses already covered by the parent
3. Putting the gross income minus the deductions into the correct % band
4. Considering the number of children living with the receiving parent for whom the application for child maintenance has been made
5. Calculate the weekly sum payable
6. Apply a deduction for any shared care (when the child spends more than 52 nights with the paying parent).

So, what happened in Mr Y’s case?

Back in 2007, Mr Y concluded his children proceedings. A District Judge made an order which directed that the three children should live with both parents and that their time with their parents should be split equally.

On 25 October 2020, a regular deduction order was made by the CMS against Mr Y. The deduction order related to alleged arrears of £2,519.86 that allegedly arose between 2007 and 2015 i.e. after the equal shared order was made. By this point, two of the three children had reached adult age.

Mr Y appealed the deduction order. He said that he had been incorrectly treated as a ‘non-resident’ parent for the purpose of the historic calculations. In fact, it was his case that his children had actually spent more time in his care than in their mother’s care.

There was a complete lack of engagement with the appeal from both the CMS and the Secretary of State (who were also sent the appeal documents). Mr Y had no response from either the CMS or the Secretary of State. So too was the family court ignored: an order made in November 2020 went unacknowledged. A further order was made on 29 June 2021, with the Judge ordering the Secretary of State to file documents by 20 July 2021 and staying the deductions order. Yet again, there was no response.

Mr Y did receive a response to a complaint he made online. He was contacted by telephone on 16 July 2021, and whilst the person who contacted him was (in his words) ‘nice’, it took him no further forward. He was told only that the CMS was aware that a hearing was coming up, but that ‘everything would be on hold’ while the CMS looked into his case. Mr Y was told that the onus was on him to show that he should not be treated as a ‘non-resident’ parent, something he both knew and had already addressed in his paperwork.

Determining whether a parent is ‘non-resident’

The basis of Mr Y’s appeal was that the CMS had incorrectly concluded that he was the non-resident parent and so should pay child maintenance. In accordance with established law, Mr Y provided evidence of how much time the children had spent with him. He pointed to the 2007 children order which directed an exact equal shared care arrangement. He also set out in correspondence to the CMS (which was before the court) that the children had spent more time with him than with their mother. Mr Y reaffirmed the written evidence at court.

What happened at the hearing?

Having had no evidence or submissions from the CMS or the Secretary of State, the Judge set aside the deductions order entirely. He accepted Mr Y’s evidence in respect of the equal shared care.

The Judge also made a cost order in the sum of £125 (the cost of the appellant’s notice) and ordered the CMS to refund Mr Y £150 which had already been deducted from his bank account under the deductions order.

The Judge accepted that the Secretary of State could challenge the decision to set aside the deductions order in its entirety, but made clear that his recording of this fact ought not to be taken as encouragement to challenge the decision, not least given the complete lack of engagement with the case to date and the potential issues they would have in challenging the decision.

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Feature Pic: Miryam León on Unsplash