Article written by Mandeep Clair, Solicitor, Family department
Under a child maintenance arrangement, child maintenance is usually paid by the parent who does not have day-to-day care or does not usually live with the child. If this payment is not forthcoming, the receiving parent may launch a civil legal claim. However, this option can be expensive and still leaves the issue of ensuring the paying parent complies with the judgment. Instead, where possible, you, as the receiving parent, can approach the Child Maintenance Service (CMS), which has wide-ranging powers of enforcement.
What measures can the CMS take if a parent fails to pay?
The CMS can secure payment using a range of powers, including:
- Ordering the paying parent’s employer to make a deduction from their wages or pension;
- Instructing the paying parent’s bank or building society to take regular payments or a lump sum from their account;
- Taking the paying parent to court to recover arrears via a liability order.
What is a liability order?
A liability order allows the CMS to take legal action against the paying parent to recover the debt. They could:
- Negotiate payment using bailiffs, or ask them to seize and sell the paying parent’s belongings;
- Use an ‘order for sale’ to sell the paying parent’s assets or property and take the proceeds;
- Place the paying parent’s debt on the Register of Judgments, Orders and Fines, which will hinder them from getting a mortgage, credit card or loan;
- Revoke the paying parent’s passport or driving licence, or prevent them from getting one;
- Send the paying parent to prison.
When will the CMS act?
This will depend on whether you have reached a private child maintenance agreement or if your agreement was arranged through the CMS.
The CMS can step in to collect ongoing child maintenance where this is made under a formal CMS assessment. The CMS cannot recoup any arrears the paying parent already owes if this is not pursuant to a CMS assessment, although you could approach the court to enforce a consent order and recover the debt, if child maintenance arrears have accrued due to failure to comply with a court order.
If the CMS collects maintenance from the paying parent on your behalf through ‘Collect and Pay’, they will know if payments have been missed. After trying to agree on a repayment schedule with the paying parent, they will use the enforcement measures outlined above to secure the arrears.
If the paying parent has agreed to pay you directly, known as ‘Direct Pay’, the CMS will need to be informed of non-payment before they can take action.
Has COVID-19 affected how the CMS approaches non-payment?
The pandemic has impacted many parents’ ability to pay child maintenance. If a paying parent claims to be unable to pay due to an income reduction, the CMS may reassess their liability. In cases where the parent’s income has been reduced by 25% due to COVID-19, the CMS will make adjustments to maintenance calculations.
If you have any questions about child maintenance arrangements or require advice on a particular family law matter, please feel free to email me or contact the Family department on 020 8858 6971.