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21st August 2020

Coronavirus: CMS to begin collection activity of any unpaid child maintenance

Zhenja Cann, a solicitor in Thrings’ Family team, takes a look at measures being taken by the Child Maintenance Service (CMS) to combat the non-payment of child maintenance during the coronavirus pandemic.

Since Thrings’ last update on the economic impact of the coronavirus pandemic on child maintenance, the Child Maintenance Service (CMS) has updated its website with the following:

If any payments are missed, we will review your case and may begin collection activity to recover any unpaid child maintenance. We will contact you to discuss how this can be paid.”

Given the Government’s move towards relaxing lockdown rules and encouraging employees to return to work in order to resuscitate the economy, the CMS’ approach is perhaps not surprising.

Lockdown has created uncertainty in many areas of the country. This, in turn, has affected those paying and receiving child maintenance. When the country first went into lockdown, there was scope to put a pause in place or renegotiate certain financial commitments while financial circumstances were not clear. It certainly seemed the CMS may have been more reluctant to take action and given greater leeway to those who really needed it.

This message appears to have now changed, and those parents who are or were previously paying child maintenance must now be alert to action the CMS could take if payments are not made.

There appears to be a full expectation from the CMS that a paying parent must pay the regular child maintenance they owe, plus any arrears that are due (which may have accrued during lockdown). Failure to comply with this could result in the enforced collection of payments by other means, with or without a court order.

Collection and enforcement powers

The CMS has far-reaching powers and can, if necessary, collect arrears of child maintenance through the following means without a court order:

  • A deduction of earnings order/request – where an employer deducts the payments directly from an employee’s salary;
  • A deduction order – a one-off payment or regular payments deducted from the paying parent’s bank account;
  • Collection of assets – a deduction from a deceased paying parent’s estate.

If necessary, the CMS may decide to pursue enforcement action against the paying parent. With a court order, it could:

  • Instruct a bailiff to take control of goods and sell assets;
  • Hold a passport or disqualify the paying parent from driving.

A paper published by the House of Commons Library last month revealed that the number of CMS-instigated deduction orders had more than doubled between June 2016 and March 2020 (1,200 orders and £0.5million collected to 3,800 orders and £2.7million collected). Incidents of enforcement action taken by the CMS also increased, from 300 in the quarter ending June 2015 to 6,700 in the quarter ending June 2019.

Whilst this data was taken pre-lockdown, it has only recently been published. It acts as a reminder to paying parents that the CMS is taking the issue of child maintenance extremely seriously.

How to avoid the risk of collection/enforcement action

  • Start the conversation early

If you are paying directly to the receiving parent and need to make a change to your payments, raise this as soon as possible and try to come to an agreement. Use the CMS’s online calculator and put a payment plan in place.

If your arrangement involves you paying through the CMS, advise them of any changes to your financial circumstances immediately. This must be done by telephone.

  • Agree between yourselves if you can pay directly

If you reach an agreement between yourselves, you are not liable for any additional fees other than the child maintenance itself.

If either of you applies to the CMS to collect the payments from the paying parent (for example, where the paying parent has not been paying by agreement and you want the CMS to pursue these payments), the CMS will charge an additional 20% on the maintenance due, with the receiving parent only receiving 96% of the child maintenance paid.

Whilst it may be necessary in some circumstances to pursue payments through the CMS, you may end up saving yourselves money and using that for the benefit of your child.

  • If you have a court order

If you have a court order from the last 12 months that states child maintenance is payable, and you do not pay the required amount, you may be in breach of that order. After a year, the CMS has overriding authority over child maintenance and either parent can apply for a new calculation. Until that point, you run the risk of the matter being returned to court.

Unless you show good reason for any breach of a court order, you may face further costs being claimed against you. To avoid such a risk, you could apply to the court to reduce the child maintenance liability.

  • Remember: the point of child maintenance is to support your child

This can often become lost when discussing how much should or shouldn’t be paid. If there is any acrimony or distrust in the separation, it is not uncommon for parents to attempt to limit or even stop payments. Child maintenance should not be used as a weapon, but should instead be seen as the minimum payment due to provide day-to-day financial support to a child. If payments cannot be agreed between parents, it may be necessary to involve the CMS to increase or reduce payments. Before either parent decides to let it go that far, they should be aware further costs and actions could be incurred.

Please note: Nothing in this article constitutes legal advice and we are not liable for any reliance on the information provided. This is a rapidly changing subject, and whilst correct at the time of writing, circumstances may have changed since publication. Please refer to Gov.uk for up-to-date advice on the Government’s response to this issue.

To find out more about anything covered in this article, or if you have any concerns about child maintenance, please contact Zhenja Cann or another member of Thrings’ Family team.

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