Father ordered to pay more child support despite losing contact with his son against his wishes

A father has been ordered to pay more child support after contact arrangements between him and his son broke down. In this blog, I look at the recent case of EA v Secretary of State for Work and Pensions and SA and its impact on child maintenance payments.

The result from the father’s point of view is that he is required to pay more maintenance because his son no longer stays with him overnight.

It is quite usual for divorced parents to share care of their child (or children) on the basis that the child will stay at least one night a week or fortnight with the parent they do not live with. Where there is a court order to this effect, the child support the non-resident parent pays will be reduced. The amount of the reduction will depend on the number of nights a week the child stays. (The reduction is 1/7th for between 52 and 103 overnight stays each year, 2/7th for between 104 and 155 nights, 3/7th for between 156 and 174 nights and 50% for 175 or more nights.)

Child maintenance order

An order was made during the matrimonial/child(ren) proceedings of the parties involved in EA v Secretary of State for Work and Pensions and SA for the father to have overnight contact with his son on alternate weekends from Thursday to Monday plus holidays. Subsequently, the Child Maintenance Service (CMS) made an order that the child maintenance the father had to pay should be reduced to take this shared care into account.

The father's contact arrangements with his son broke down. The mother said this was because the child no longer wanted to stay with the father overnight and had run away on one occasion to avoid doing so. The father wished to maintain contact with his son.

The mother applied to the CMS to remove the reduction in the child maintenance on the basis that the child was no longer staying overnight with the father. The CMS agreed this and ordered an increase in the maintenance payments.

Appeal by the father and decision of tribunal

The father appealed the decision of the CMS to the First-Tier Tribunal and lost. He then appealed to the Upper Tribunal and lost again.

The Upper Tribunal said that while the court order giving the father rights of contact must be taken into account, "there is no obligation to determine shared care on the basis of the provisions in that court order".

The tribunal said that the person making the decision at the CMS is "entitled to take into account evidence that the provisions of the order do not accurately reflect the number of nights for which the [father] is expected to have overnight care of [the child]".

The result from the father's point of view is that he is required to pay more maintenance because his son no longer stays with him overnight. At the same time, he has lost contact with his son against his wishes despite there being a court order requiring it.

The judge in the Upper Tribunal said he could "understand [the father's] frustration". "However," he continued, "if he is not content with the present level of contact, he has avenues of recourse in the courts available to him."

This case highlights the importance of ensuring child maintenance payments reflect the realities of the situation rather than follow the letter of a court order that is not being complied with.

If you would like to discuss any issue relating to child maintenance payments, please contact me at [email protected].