Child Maintenance in Scotland: Who Pays What and When?

When parents separate, one of the most important issues to resolve is how the costs of raising their children will be shared. Child maintenance is intended to help meet the everyday costs of looking after a child when their parents do not live together.

In Scotland, both parents have financial responsibilities towards their children. This remains the case whether the parents were married, in a civil partnership, in a relationship or were never living together. In some circumstances, a person other than a parent, such as a grandparent or guardian who has the main day-to-day care of a child, may also be involved in a child maintenance arrangement.

Child maintenance is separate from arrangements about where a child lives or when they spend time with either parent. Having contact with a child does not, by itself, remove a parent’s responsibility to contribute financially towards their upbringing.

What is child maintenance?

Child maintenance is regular financial support paid by one parent towards the costs of bringing up their child. Usually, the parent who does not have the main day-to-day care of the child makes the payment to the parent who has the main day-to-day care.

The money can help with ordinary household and child-related expenses such as food, clothing, heating, school costs, activities and other day-to-day needs. There is no requirement for every pound of maintenance to be spent on a particular item for the child.

It is important to understand that child maintenance is about supporting the child rather than financially supporting the other parent.

Who has to pay child maintenance?

Both parents have a responsibility to support their children financially. Where parents live separately, this will commonly result in one parent paying child maintenance to the other. In most cases that person will be the other parent, although in some cases the receiving person may be a grandparent or guardian.

The parent who pays is often referred to as the “paying parent”, while the parent who receives the payment is known as the “receiving parent”.

The fact that a parent has limited or no contact with their child does not normally remove their financial responsibility. Equally, paying child maintenance does not automatically give a parent rights to contact or determine where a child should live. Financial support and contact are separate issues.

Child maintenance is generally payable while a child is under 16, or until they are 20 if they are in approved education or training. There are also particular rules in Scotland concerning children aged 12 or over who are in full-time, non-advanced education or training and who may apply for child maintenance themselves.

How can parents arrange child maintenance?

Parents have several options. There is no requirement to use the Child Maintenance Service (CMS) if both parents are able to reach a suitable arrangement themselves.

The main options are:

• A private agreement: Parents can agree between themselves how much will be paid and when. This can be a flexible arrangement which takes account of the individual family’s circumstances, rather than simply following the CMS calculation.
• The Child Maintenance Service: The CMS is a government service which can calculate the amount of maintenance payable and, depending on the arrangement, collect payments and take enforcement action where payments are not made.
• A formal legal agreement or court proceedings: In some circumstances, particularly where there are higher incomes or other financial issues, legal advice may be appropriate. The interaction between court orders and the statutory child maintenance scheme can be complicated, so specialist advice should be obtained where necessary.

A private arrangement can work very well where parents are able to communicate and trust each other to make payments. It is sensible to record the agreement in writing, including the amount, payment date and arrangements for dealing with changes in circumstances.

How does the Child Maintenance Service calculate payments?

Where the CMS is involved, it follows a set calculation rather than simply dividing the costs of raising a child between the parents.

The calculation normally takes several factors into account:

• The paying parent’s gross income: The CMS generally obtains information about the paying parent’s annual gross income from HM Revenue and Customs. This is then converted into a weekly figure for the calculation.
• Pension contributions and certain other factors: Certain pension contributions and other circumstances can affect the income figure used by the CMS.
• Other children supported by the paying parent: If the paying parent supports other children, this can reduce the income figure used in the calculation because the CMS recognises their financial responsibilities towards those children.
• The number of children receiving maintenance: The calculation changes depending on whether maintenance is being paid for one child, two children or three or more children.
• Shared care: The number of nights a child stays with the paying parent can affect the amount of maintenance payable.

The CMS calculation therefore does not simply depend upon the paying parent’s salary. A number of different circumstances can affect the final figure.

How much does the CMS require a parent to pay?

The amount depends upon the paying parent’s gross weekly income.

For example, under the current CMS calculation, where the relevant gross weekly income is between £200 and £800, the basic rate is:

• 12% for one child: This means that, subject to the other parts of the calculation, a paying parent with one child would generally pay 12% of the relevant gross weekly income.
• 16% for two children: Where maintenance is payable for two children, the percentage increases to 16% of the relevant income.
• 19% for three or more children: Where maintenance is payable for three or more children, the percentage is 19%.

For income between £800 and £3,000 per week, the CMS uses the Basic Plus rate. The calculation applies the basic percentage to the first £800 and a lower percentage to income above £800, subject to the CMS rules.

These figures are intended to illustrate how the statutory calculation works. They should not be treated as a quotation for an individual family’s maintenance liability, because the actual calculation can be affected by other children, pension contributions, shared care and other relevant circumstances.

Parents can use the government’s child maintenance calculator to obtain an indication of what the CMS may calculate.

What if the paying parent has a low income?

The CMS has different rates for parents with lower incomes.

Where the relevant income is between £100 and £199.99 per week, the reduced rate applies. Where the relevant income is £100 or less, or the paying parent receives certain benefits, the flat rate may apply.

Under the current rules, the flat rate is generally £7 per week. If the paying parent’s income is below £7 per week, the nil rate may apply.

If a parent does not provide the CMS with the information required to calculate maintenance, the CMS can make a default maintenance decision in appropriate circumstances. This can result in a higher payment than might ultimately have been payable if accurate income information had been provided.

What happens if the paying parent is self-employed?

Self-employed income can sometimes make child maintenance calculations more complicated.

The CMS can use information about profits from self-employment when assessing income. A parent who is self-employed should not assume that the amount they take home personally is necessarily the figure the CMS will use.

If there is a genuine concern that income has not been properly reflected in the calculation, there are circumstances in which a parent can ask the CMS to consider additional income, assets or certain expenses.

This can be particularly important where someone has a complicated financial position, owns a business or receives income from several sources.

Does shared care reduce child maintenance?

Shared care can affect the amount payable.

For CMS purposes, shared care generally concerns the number of nights the child stays overnight with the paying parent. If the parents agree that the child stays overnight for at least 52 nights each year, the CMS may reduce the maintenance calculation depending upon the number of nights involved.

For example:

• 52 to 103 nights: The maintenance calculation is reduced by 14.29%.
• 104 to 155 nights: The reduction is 28.57%.
• 156 to 174 nights: The reduction is 42.86%.
• 175 nights or more: The reduction is 50%, with an additional £7 weekly reduction under the relevant rules.

These reductions apply under the CMS calculation and should not be confused with simply dividing a child’s living expenses according to the number of nights spent in each household.

It is also important to remember that shared care arrangements are a separate issue from parental responsibilities and rights and arrangements for contact.

What about school costs and other expenses?

Child maintenance is intended to contribute towards the general costs of bringing up a child. It does not necessarily mean that one parent must pay half of every individual expense.

Parents can, however, agree separately how they will deal with larger or unusual costs.

For example, they might agree how to pay for:

• School trips and activities: These can be significant one-off expenses and parents may wish to agree in advance how they will be shared.
• Clothing and equipment: Parents can agree who will purchase items such as school uniforms, sports equipment or winter clothing.
• Hobbies and activities: Swimming lessons, football, music lessons and other activities can create regular additional costs which parents may wish to divide between them.
• Larger purchases: Items such as bicycles, computers or mobile phones can be dealt with separately from regular maintenance.

The Scottish Government’s Parenting Plan guidance encourages parents to consider these sorts of expenses when making arrangements for their children.

What happens if circumstances change?

Child maintenance arrangements may need to be reviewed when circumstances change.

For example, it may be appropriate to review the arrangement if:

• The paying parent’s income changes: A significant change in income can affect the CMS calculation.
• The child moves between households: A change in the child’s living arrangements or overnight stays may affect the shared-care element of a CMS calculation.
• The paying parent has another child: The CMS may take account of other children whom the paying parent supports.
• A child reaches the relevant age: Child maintenance does not continue indefinitely, and the rules concerning when liability ends should be checked in the particular circumstances.
• Parents agree a different arrangement: Where parents have a private agreement, they may be able to change it by agreement.

Parents should not simply stop paying maintenance because their circumstances have changed. If the CMS is involved, the relevant change should be reported to the CMS so that the calculation can be reviewed.

What happens if child maintenance is not paid?

Failure to pay agreed child maintenance can create serious financial difficulties for the parent caring for the child.

Where parents have a private agreement, enforcement can be more difficult if the arrangement has not been properly documented. This is one reason why it is important to keep records of payments and any written agreement.

Where the CMS is involved, there are different ways in which payments can be made.

With Direct Pay, the CMS calculates the amount but the paying parent pays the receiving parent directly. There are no collection fees for using Direct Pay.

With Collect & Pay, the CMS collects the money from the paying parent and passes it to the receiving parent. Collection fees apply to both parents under this arrangement.

Where payments are not made, the CMS has enforcement powers. These can include deductions from earnings and other enforcement measures. Employers can be required to deduct child maintenance from an employee’s earnings under a deduction from earnings order.

Can a parent refuse to pay because they do not see their child?

Generally, no.

Child maintenance and contact are separate matters. A parent does not normally avoid their financial responsibility simply because they are not seeing their child.

Likewise, a parent should not normally prevent contact simply because maintenance has not been paid. Disputes about contact and disputes about financial support should be dealt with separately.

If there are concerns about a child’s welfare or safety, however, specialist family law advice should be obtained.

What if parents cannot agree?

Not every family will be able to reach an agreement about child maintenance. Separation can be difficult, and disagreements about money can quickly become emotionally charged.

Where communication has broken down, the CMS may provide a practical way of establishing and collecting maintenance without the parents having to negotiate every payment themselves.

In other cases, legal advice may be appropriate, particularly where there are substantial assets, complicated income arrangements, a business, international issues or an existing court order or financial agreement.

Family mediation can also be useful where parents are willing to discuss arrangements with the assistance of an independent mediator. The Scottish Government recognises mediation as one of the ways parents can work towards practical arrangements for their children.

Getting advice about child maintenance

There is no single answer to the question of “who pays what?” because every family’s circumstances are different.

The CMS provides a statutory calculation which gives separated parents a framework for determining maintenance. However, parents may also be able to agree arrangements that better reflect their individual circumstances and the particular needs of their children.

If you are separating, or your existing child maintenance arrangements are no longer working, it is sensible to deal with the issue early. Keeping arrangements clear and putting agreements in writing can help prevent disagreements later.

A Scottish family law solicitor can advise you on your particular circumstances, including the interaction between child maintenance, separation, financial settlements and arrangements for your children.

The most important point is that child maintenance is ultimately about meeting a child’s needs. Both parents remain financially responsible for their children, and making sensible arrangements at an early stage can help provide greater financial stability for the whole family.

This information is based on the current guidance published by the Child Maintenance Service and is intended as general information only. Eligibility and individual circumstances should be checked directly with the Child Maintenance Service. Further information is available on the GOV.UK Child Maintenance Service eligibility page.

https://www.gov.uk/child-maintenance-service/eligibility

If you would like to discuss your situation confidentially, please get in touch. For tailored legal guidance, please contact our experienced Family Law solicitors on 01259 723 201 or email help@randa-fa.co.uk and we would be delighted to assist.