18 February 2020 - Article
There are certain principles that you cannot, and should not avoid, as a family lawyer. One of the most important is fairness — at the very heart of family law in this country is the idea that the court should be able to look at all the circumstances of a particular case and make a decision that is fair. That is the enormous advantage of a discretionary system; we are not so bogged down in rules and regulations that we lose sight of the people involved and the principles that deserve to be preserved. However, the law that governs child maintenance payments is all about the rules and the regulations, and so how the court system and the Child Maintenance Service (CMS) work together can give rise to interesting and difficult questions. In D v R  EWHC 4306 Holman J heard a mother's application for child maintenance. In 2007 the father had been ordered to pay £41,200 per year in respect of their child. However, in 2014 he applied to the CMS and they calculated he should pay £1,375 per annum. This enormous discrepancy did not come about due to a change in the father's income, but due to a difference in approach. When the family court determines child maintenance it can take into account all the available resources worldwide, but when the CMS makes a calculation it just looks at UK Tax returns. Once the CMS have made a calculation, the 2007 court order ceases to have effect and so the father is no longer obliged to pay any more than the CMS calculated. It is possible for the court to become involved when the CMS make a maximum assessment, which means that the non resident parent's gross income exceeds £3,000 per week. However, Holman J found that it is for the CMS and not the court to determine the father's gross income, and if they say it is £20,000 then the mother cannot use the court to circumvent that; her only option is to appeal within the CMS system. He ordered the father to pay £10,000 lump sum to enable her to do that. He would not, however, order a lump sum to meet the debt she had incurred due to the dramatic reduction in maintenance. Whilst accepting that the child ‘must be suffering very greatly from the very dramatic fall in the income available to her within the household of the mother', there was nothing more he could do — save for asking the parties, and particularly the father, to search their conscience. This case reminded me of Hakki v Sec of State for Works & Pensions  EWCA Civ 530, where the Court of Appeal found that a father's income as a professional poker player did not constitute earnings for the purposes of child maintenance. The court said that it was open to the mother to try to compel him to make a contribution by making a “departure direction” pursuant to sections 28A-28I of the Child Support Act 1991. This allows the Secretary of State to make a further assessment on the basis that the current assessment is substantially lower than the level of income required to support the overall lifestyle of that non-applicant. But there was nothing more the court could do. Family law practitioners often talk about the need for more certainty and clarity — however, cases like these show that having hard and fast rules can just create a different type of problem.