Child Maintenance in England and Wales: How It Works and Who Decides

Child maintenance is one of the most frequently misunderstood aspects of family law in England and Wales. Many parents are unclear about whether child maintenance is decided by the courts, by the Child Maintenance Service, or by agreement between the parties. The answer depends on the specific circumstances, and getting the right advice from the outset matters.

The Child Maintenance Service

In most cases where separated parents cannot agree on child maintenance, the Child Maintenance Service is the primary route for calculating and collecting payments. The CMS uses a statutory formula based on the paying parent's net income and the number of qualifying children to calculate the amount of maintenance due.

The formula takes into account the number of nights per year the child spends with the paying parent, and reduces the maintenance figure accordingly for shared care arrangements. There are set rates for different income levels, including a reduced rate for very low incomes and a flat rate for those on certain benefits.

When the court is involved in child maintenance

The family courts have limited jurisdiction to make child maintenance orders in most cases. Under the Child Support Act 1991, the CMS has exclusive jurisdiction to calculate and enforce child maintenance in most circumstances, and the court cannot make an order where the CMS has jurisdiction.

However, there are important exceptions. Where a paying parent earns above the CMS's maximum income threshold, currently set at a net income of around £3,000 per week, a parent can apply to the court for a top-up order above the CMS calculation. The court can also make maintenance orders for children who are not covered by the CMS, such as children in full-time education above the age of 16 or children with disabilities whose needs require additional financial support.

Our family law barristers can advise on whether a court application for child maintenance is available in your circumstances.

Agreed arrangements and consent orders

If both parents can agree on child maintenance, it is possible to record that agreement in a written document. However, a private written agreement between the parents is not binding in the way that a court order is. Either parent can still apply to the CMS at any time, regardless of what has been agreed in writing.

A consent order made by the court recording the agreed child maintenance figure can provide greater certainty for a period of twelve months. After that period, either party can still apply to the CMS. This means that private arrangements for child maintenance have inherent limitations in terms of long-term enforcement.

What happens if the paying parent stops paying

Where child maintenance is assessed and collected through the CMS, the CMS has enforcement powers available if payment is not made. These include deducting payments directly from wages or bank accounts, taking legal action to recover arrears, and in serious cases applying for a liability order that can lead to further enforcement action.

Where there is a court order for child maintenance, enforcement is through the court's own powers. Non-payment of a court order can be enforced through the court's enforcement processes.

When child maintenance is just one part of the picture

Child maintenance is only one aspect of the financial provision for children following separation. Decisions about housing, schooling, and other significant expenditure also need to be addressed. In some cases, a court application for additional financial provision for a child, such as a lump sum for the child's housing needs, may be appropriate alongside any child maintenance arrangements.

Understanding how all these elements fit together is part of what early specialist advice provides. You can read more in our guide to direct access barrister advice for family proceedings.

A direct access barrister can give you a clearer picture of where you stand with some early advice. Contact us to discuss instructing a barrister today.