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Traps for the unwary

18 July 16

A user’s guide to (some of) the things that can go wrong with your child support case

by John Fotheringham

1. Don’t delay acting on any correspondence from Child Support Agency/Child Maintenance Service (CSA/CMS). Letters can be deemed to have been received if, according to their records, they have been sent. There are time limits within which to reply and you can lose rights to challenge if you don’t act in time.

2. If you’re the non-resident parent (NRP), never pay in cash – not even to the parent with care’s bank account. And make sure that if you are making payments directly from your account to the account of the parent with care (PWC), you have the confirmation in writing from CSA/CMS that that is OK. Failure to do so may result in your payments not being accepted as having been in lieu of child support, and they may try to make you pay again.

3. By all means telephone CSA/CMS if you have the patience of Job and a lot of time to spare, but don’t rely on any such conversation. Communicate with them through a solicitor, or else write to them by recorded delivery and keep a copy.

4. When they tell you (and they’re certainly going to tell you) that there’s nothing you can do, don’t accept that. They are often enough wrong to make it worthwhile to check. Don’t, by the way, check it by asking CSA/CMS, or Child Maintenance Options which is the official information service run by G4S.

5. Beware generic advice about specific child support rules. There are currently three different sets of rules running concurrently. All new cases are under the newest system, but there are still many thousands of cases under the older ones, possibly including your case.

6. If you are the PWC, don’t let CSA/CMS simply accept that the information they get from HMRC about the other parent’s income is correct. The taxman has different criteria form those which apply to child support, particularly if there is a foreign element, but it’s temptingly easy for CSA/CMS not to make enquiry in any individual case unless there has been a formal challenge. Check with your lawyer.

7. If you’re the NRP, there may be a lot you can do to minimise your liability by perfectly legal realignment of your assets. If you’re the PWC, remember that not all realignments do properly fall within the rules of child support. This is a specialist area, but it crops up in cases where the amounts make it worthwhile to check, whichever parent you are.

8. Remember that CSA/CMS is a huge machine which has to cut corners in order to have any chance of getting through its workload. Don’t be one of these corners. If you’re unhappy about any decision, demand in writing that they should reconsider it. If they still won’t change their minds, lodge an appeal to the tribunal. There is nothing to pay in a child support tribunal (unlike employment tribunals), and expenses will not be awarded against you if you lose. It’s fair to say that one of the main reasons that child support is in such a mess is that they’ve been allowed to get away with it because not nearly enough people have appealed bad decisions to the tribunal. The tribunal, by the way, is completely independent of CSA/CMS and is quite willing to recognise mistakes and to put them right.

9. Don’t be put off by the apparent complexity of the child support system. The whole system, when looked at in the round, is certainly quite complicated, but the particular part of the system which applies to your case may be fairly simple. Sometimes the problem may be to identify that part – and you can’t expect the system to help you to challenge it. That’s where a lawyer can help. If you can’t afford a lawyer, bear in mind that it’s only law – it’s not an impenetrable secret code.

10. Lastly, beware of terminology. Terms like “maintenance” and “aliment” tend to be used interchangeably and that’s unfortunate, particularly in Scotland, where the terms have specific meanings. Not all payments for the upkeep and welfare of a child are truly “maintenance”, and not all such payments fall within the scope of the statutory child support system. There is a range of other rights and liabilities under other statutes which are all too often forgotten. You probably need a lawyer’s advice on this point.

John M Fotheringham WS, Shoosmiths, Edinburgh
t: 0131 270 8138; e: john.fotheringham@shoosmiths.co.uk

 

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