22 March 2019 - Article
Divorce and child support payments
The extent to which a parent should take financial responsibility for their child is an issue on which most people have a strong opinion. In his recent decision of Green v Adams  EWFC 2017 Mr Justice Mostyn made his position pretty clear, saying of Mr Adams ‘his parsimonious approach to the support of his son is little short of scandalous.’
However, despite Mr Justice Mostyn’s robust findings in relation to Mr Adams’ wealth, there was nothing that he could do to about the ‘pittance’ that he was paying in maintenance for his 16 year old son. Miss Green’s application for maintenance was dismissed. The court did not have jurisdiction to order Mr Adams to pay any more than the minimum assessment of £7 that the Child Support Agency had determined.
Under the current law, it is hard to explain why, when a judge feels as strongly as Mr Justice Mostyn did that a parent is not making the financial contribution that they should for their child, there is nothing that he or she can do.
THE COURT'S JURISDICTION
The interplay between the CSA and the family court is one of the very few areas of family law where the judges cannot exercise their discretion. There are fixed rules as to when and how the court can make order for child maintenance. In this case whilst the judge was able to order a payment of £20, 600 for capital expenditure such as a car and a laptop, he was clear that he only had power to make an award for capital expenditure of a singular nature, and could not circumvent the rules by ordering a lump sum payment that effectively rolled up income payments.
THE COURT'S HANDS ARE TIED
The court only has jurisdiction to become involved in child maintenance in very limited circumstances, for example where the couple have already agreed the maintenance, the court can make an order in the terms they have agreed, and then has jurisdiction over that order (and so can deal with applications to vary it) for up to a year. However, after 12 months either party can make an application to the CSA and then the court will lose its jurisdiction. This can result in a significant reduction in the amount payable. Another example is where the CSA make a maximum income assessment (they find that the payer has an income in excess of £3,000 per week) then the court has jurisdiction to make a ‘top up’ order. In Green v Adams, none of the exceptions applied. Mr Justice Mostyn said that ‘the lack of support for day to day living is a most disturbing state of affairs. It is an indictment of the child support system that it has not been able to furnish reasonable maintenance in the mother’s hands.’ The mother’s hands are pretty much empty and the court’s hands are tied.
The consequences of the court’s lack of jurisdiction are even more severe in circumstances where an old route of variation has been cut off. It used to be possible to vary an assessment on the basis that the payer’s lifestyle was inconsistent with the income as assessed. Also, if there were assets of over £65,000 there was a deemed return of 8% (in this case Mr Adams had resources of approximately £5.2m). The new system, which has been in place since November 2013, does not allow for that. The result is that those who are income poor but capital rich can end up in a position where they can pay, but don’t pay maintenance. The Commons Work and Pensions Committee’s report of 2 May 2017 is alive to this issue and we may see the reform that Mr Justice Mostyn called for at the end of his judgment.